Waiving a Statutory Bond or Undertaking Requirement in California

A court order waiving a statutory bond or undertaking requirement in California is the topic of this article. While that may seem incredible the fact is that the California courts do have the power to waive the posting of a bond or undertaking, in whole or in part even if required by a particular statute. That could prove to be very advantageous in certain situations as even a reduction in the amount of bond or undertaking required may allow a poor litigant to proceed with their lawsuit.

The California Supreme Court has stated in one case, “In a long series of cases… 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.”

If an injunction is granted, an undertaking is required pursuant to subdivision a of Code of Civil Procedure section 529. However, a trial court does in fact have discretion to relieve an indigent plaintiff who cannot post an injunction bond under section 529.

A waiver of an injunction bond may be easier to obtain than waivers of other bonds as a very good argument can be made that permitting a waiver of an injunction bond is even stronger than permitting waiver of a cost bond, because with the injunction bond a litigant who is relieved of an undertaking has already prevailed on any substantive issues before the trial court so there is less chance that the opposing party would be injured by any waiver of the bond requirement.

It should be noted that a California Court of Appeal has also ruled that the courts are not required to waive undertaking requirements for indigent litigants in all cases.

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 pursuant to Code of Civil Procedure ยง 995.240.

A California litigant who has obtained a fee waiver order from the court has a much better chance of obtaining a waiver or substantial reduction of a statutory bond requirement. In one case a California Court of Appeal reversed a trial court’s dismissal of a lawsuit for failure to file an undertaking required by California law because the plaintiff resided outside the state. In reversing the trial court’s dismissal of the plaintiff’s lawsuit, the Court of Appeal 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.

To view the entire text of any of the code sections cited in this article or any other California code section use the link shown below.

http://leginfo.legislature.ca.gov/faces/codes.xhtml

Anyone requesting a waiver or reduction of a statutory bond requirement should state in their supporting declaration enough specific facts to support their request as failing to do so may result in a denial of their request on the grounds that any declarations are conclusionary and lack enough specific facts to support their request.

The author sincerely hopes you have enjoyed this article and found it informative. If you did enjoy this article please tell others about it.

Sincerely,

Stan Burman