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Waivers of statutory bond or undertaking requirements in California

Waivers of statutory bond or undertaking requirements in California are the topic of this blog post.

While obtaining a waiver of a bond or undertaking that is required by statute may seem incredible, the fact is that California courts do have the power to waive the posting of a bond, in whole or in part even though a particular statute may require it.  In the right situation that could prove to be very advantageous as even if a full waiver is not granted a reduction in the amount of bond or undertaking required may also be obtained.

In Conover v. Hall (1974) 11 Cal. 3d 842, 850-851 the California Supreme Court stated that, “In a long series of cases commencing with Martin v. Superior Court (1917) 176 Cal. 289, 168 P. 135, our court has explained that, despite the apparent mandatory character of a variety of statutes calling for the payment of litigation fees, California courts retain a common law authority to dispense with such fees in the case of poor litigants.” (Citing cases).

Code of Civil Procedure section 529 (a) states in pertinent part that if an injunction is granted, an undertaking is required. However,  a trial court has discretion to relieve an indigent plaintiff who cannot to post an injunction bond under section 529.

And a waiver of an injunction bond may be easier to obtain than waivers of other bonds as in Conover v. Hall 11 Cal. 3d 842 supra, at fn. 6 the California Supreme Court stated that,  “Indeed, in one respect, the argument in favor of permitting a waiver of an “injunction bond” is even stronger than permitting waiver of a “cost bond,” because in the “injunction bond” context a poor litigant who is relieved of an undertaking has already prevailed on the substantive issue before the trial court and thus there is less chance that the opposing party will be injured by the waiver of the bond requirement.”

It should be noted that a California Court of Appeal has also ruled that Conover v. Hall supra 11 Cal.3d 842, did not state or imply that courts must in all cases waive undertaking requirements for indigent litigants.

The common law authority of the Courts to dispense with the posting of a bond,  either in whole or in part, has been codified by the California legislature.

Code of Civil Procedure § 995.240 provides in part, “The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, . . .  In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.”

A California litigant who has obtained a fee waiver order from the court also known as an in forma pauperis order has a much better chance of obtaining a waiver or substantial reduction of a statutory bond requirement.

Several decisions from the California Courts of Appeal have dealt with this issue. In one case a Court of Appeal reversed the trial court’s dismissal of a lawsuit for failure to file  an undertaking pursuant to Code of Civil Procedure section 1030 because the plaintiff resided outside the state.  In opposing the motion to dismiss the plaintiff’s lawsuit for his failure to post the undertaking, the plaintiff stated that because he obtained a fee waiver order from the trial court finding him to be in forma pauperis, relieving him of the obligation to pay court fees and costs, the trial court was required to waive the undertaking.    In reversing the trial court’s dismissal of the plaintiff’s lawsuit, the court stated that because the plaintiff had obtained a fee waiver order the trial court acted arbitrarily and capriciously in refusing to either vacate or reduce the amount of the undertaking.

Any litigant requesting a waiver or reduction of a statutory bond requirement should make sure that their supporting declaration contains specific facts to support their request.  Using vague conclusionary allegations may result in a denial of their request on the grounds that any declarations are conclusionary and lack the required facts to support their request.

To view over 300 sample legal documents for California and Federal litigation created and sold by the author of this blog post visit: View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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