Metropolitan News-Enterprise


Wednesday, February 25, 2009


Page 1


Court Rules Undertaking Bond Violated Equal Protection Rights


By STEVEN M. ELLIS, Staff Writer


A Los Angeles Superior Court judge violated a Virginia man’s equal protection rights by requiring him to deposit almost $160,000 to sue his former lawyers without adequately allowing him to demonstrate indigency, this district’s Court of Appeal ruled yesterday.

Reinstating Nihad Alshafie’s suit arising from litigation over his daughter’s birth and severe brain damage, Div. Seven ruled that Judge Cary H. Nishimoto erred when he ordered the undertaking from the former California resident without giving him a meaningful opportunity to address concerns with financial information provided.

Alshafie brought suit in 2005 for negligence, breach of fiduciary duty and intentional infliction of emotional distress against his former lawyers—Torrance attorney Richard Garrigues and Long Beach attorney M. Lawrence Lallande and their respective firms, and others—after his action against a UCLA-affiliated hospital was dismissed.

He claimed that his daughter’s severe brain damage was the result of medical malpractice by the maternity center at the Daniel Freeman Hospital during her 1997 birth, and alleged the attorneys failed to learn the basis of the malpractice underlying his daughter’s injuries, conduct any discovery or oppose the hospital’s motion for summary judgment.

Alshafie and his family moved to Virginia in September 2006, so the defendants sought under Code of Civil Procedure Sec. 1030 to impose an undertaking to secure any award of costs they might obtain.

The statute allows for such an undertaking in order to prevent out-of-state residents from filing frivolous lawsuits against California residents, but the requirement may be waived if the plaintiff establishes indigency.

Alshafie sought such a waiver, contending the undertaking would pose an “unbearable and impossible financial hardship” on his family, which now included three children, insofar as they had no assets and lived in a rented apartment, and he worked as a tow truck dispatch manager while his wife stayed home to take care of the children.

Declaration Conclusory

Nishimoto, however, granted the defendants’ request, reasoning that Alshafie’s declaration was inexplicably untimely, and also conclusory because there was no evidence such as tax returns, receipts or other documentation supporting the claim of indigency.

The judge later granted the defendants’ motion to dismiss when Alshafie failed to file the undertaking.

On appeal, Alshafie argued that he was entitled to a waiver under the Court of Appeal’s opinion in Baltayan v. Estate of Gretemyan (2001) 90 Cal.App.4th 1427, and Presiding Justice Dennis M. Perluss agreed, opining that a Sec. 1030 undertaking could be a waivable fee or cost.

Noting, under Baltayan, that dismissal would violate both the state and federal constitutions if applied to an out-of-state resident poor enough to qualify for in forma pauperis rights, Perluss commented that failure to provide information or reason to doubt the veracity of allegations in an application were grounds for a court to seek additional documentation.

But, he continued, “to fulfill its statutory duties when exercising its discretion, the court must review the plaintiff’s showing, identify deficiencies, if any, and give the plaintiff the opportunity to supply additional information that may be necessary to establish his or her entitlement to a waiver under the circumstances of the particular case.”

Indigency Waiver

Perluss advised that plaintiffs seeking such waivers should provide the detailed financial information requested on a mandatory Judicial Council form for obtaining in forma pauperis status.

“Completing that form would provide the trial court with a solid basis for making the waiver decision and should reduce the likelihood of snarky questions similar to those raised by the attorney defendants in this case,” he said.

Citing former Justice Earl Johnson Jr.’s concurring opinion in Baltayan, Perluss also warned that relief from the undertaking requirement was not available only to low-income plaintiffs, but to middle-income plaintiffs as well, pointing out that a bond to protect an in-state defendant would unconstitutionally deprive middle-income plaintiffs of their day in court if they lacked the ability to pay it.

Justices Fred Woods and Frank Y. Jackson joined Perluss in his opinion.

The case is Alshafie v. Lallande, 09 S.O.S. 1067.


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