JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al.

24CV020517: JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al. 02/10/2026 Hearing on Motion - Other Requiring Out of State Plaintiff to Post an Undertaking in Department 54

Tentative Ruling

Defendants Law Offices of Frank D. Penny’s and Joshua Boyce’s (“Defendants”) motion to compel out-of-state pro per plaintiff Delma Jrmar Jefferson (“Plaintiff”) to post an undertaking pursuant to Code of Civil Procedure, section 1030, is ruled upon as follows.

Overview

This is a legal malpractice action. Plaintiff was involved in two separate car accidents that gave rise to two separate legal matters. The first accident occurred on February 12, 2018, with motorist Brayan Perez (“Perez”) while Plaintiff was driving as a rideshare operator for Uber Technologies, Inc. (“Uber”). (Boyce Decl., ¶ 5-6, 19.) On October 22, 2019, Plaintiff filed a complaint in pro per against Perez in Superior Court, County of San Mateo Case No. 19-CIV- 06212 (“Perez Action”). (Id. at ¶ 11.)

The second accident occurred on September 27, 2020, with motorist Lisa Garcia (“Garcia”). (Id. at 28.) On November 2, 2020, Plaintiff retained Defendants to represent him in both the Perez Action and to obtain legal remedies against Garcia (“Garcia Matter”). (Id. at ¶¶ 7, 29.) After settling the Garcia Matter but before resolving the Perez Action, Plaintiff sent a letter to Defendants in which he terminated Defendants’ services. (Id. at ¶¶ 19, 51.) Plaintiff continued to represent himself in pro per in the Perez Action.

A trial was held in the Perez Action from September 11 to October 3, 2024, with Plaintiff representing himself, and the jury entered a verdict in favor of Plaintiff in the amount of $4,965.42. (Davidson Decl., ¶ 17.)

Plaintiff subsequently filed a Complaint against Defendants alleging the following causes of action: (1) legal malpractice; (2) breach of contract; (3) breach of fiduciary duty; (4) fraudulent misrepresentation; (5) negligence; (6) intentional infliction of emotional distress; (7) conversion; (8) unjust enrichment; (9) breach of the implied covenant of good faith and fair dealing; (10) declaratory relief; (11) punitive damages; and (12) unfair business practices under Business and Professions Code section 17200.

Plaintiff alleges in his Complaint it was due to Defendants’ malpractice that Plaintiff received only $4,965.42 from the verdict in the Perez Action, despite incurring over $1.7 million in damages. Plaintiff also alleges that Defendants failed to file a lawsuit in the Garcia Matter and wrongfully withheld $25,000 from Plaintiff’s settlement for attorney’s fees, despite failing to provide competent legal services. Plaintiff further alleges that Defendants wrongfully placed a lien of $7,337.33 on Plaintiff for advanced costs despite having abandoned their representation of Plaintiff.

Defendants now move to require Plaintiff to post an undertaking pursuant to Code of Civil Procedure section 1030. Plaintiff opposes.

24CV020517: JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al. 02/10/2026 Hearing on Motion - Other Requiring Out of State Plaintiff to Post an Undertaking in Department 54

Legal Standard

When the plaintiff in an action or special proceeding resides out of state, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees under Code of Civil Procedure section 1030. “The motion shall be made on the grounds that the plaintiff resides out of state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action.” (Code Civ.

Proc., § 1030.) A “reasonable possibility” is a relatively low standard, which simply requires a showing that it is reasonably possible that the defendant will obtain a favorable judgment. (Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1432.) In a different context, “reasonable possibility” has been defined as the “equivalent of only a fair argument.” (Natural Resources Defense Council v. Fish & Game Commission (1994) 28 Cal.App.4th 1104, 1125.) Credible evidence which controverts a plaintiff’s claims is enough to show that a trier of fact may believe one witness over another. (See id. at 1116.)

Upon a defendant’s motion for security a defendant’s motion for security, “the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney’s fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.” (Yao v. Superior Court (2002), 104 Cal. App. 4th 327, 329, citing Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1430.) The purpose of the statute is to enable a California resident sued by an out-of-state resident “‘to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.’” (Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 913.)

Discussion

To support the motion, Defendants have submitted declarations from codefendant Boyce, counsel for Defendants David Davidson, and expert witness and attorney Michael Watters to establish their reasonable possibility of prevailing on the claims. Defendants attest they reached a tentative settlement in the amount of $15,000 in the Perez Action (i.e., Perez’s policy limit), but once Plaintiff learned that the amount he would receive was less than the policy limit due to a lien imposed by the State of Texas for Plaintiff’s child support back payments, Plaintiff refused to settle despite being advised of the advantages and disadvantages of settling. (Boyce Decl., ¶¶ 17-19; Davidson Decl., Exhibit 6.)

Boyce attests that, had Plaintiff accepted the $15,000 settlement in the Perez Action, he would have also been able to pursue an underinsured motorist (“UIM”) claim with his own Uber insurance policy, which had coverage up to $1,000,000. (Boyce Decl., ¶¶ 50-52.) However, by letter dated September 14, 2021, Plaintiff terminated Defendants’ services without accepting the $15,000 settlement in the Perez Action and subsequently represented himself therein, which resulted in a verdict in the amount of $4,965.42.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020517: JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al. 02/10/2026 Hearing on Motion - Other Requiring Out of State Plaintiff to Post an Undertaking in Department 54

(Boyce Decl., Exhibits 4, 11; Davidson Decl., ¶ 12.) Plaintiff alleges that the he was unable to pursue the $1,000,000 Uber policy coverage due to Defendants’ professional negligence (Complaint, p. 6), but Watters opines that there is no causal connection or nexus between Defendants’ representation and the outcome of the trial in the Perez Action, as Defendants’ representation of Plaintiff ended three years before the Perez Action concluded. (Watters Decl., ¶ 45-47.) It is also Watters’ opinion that Defendants’ services met the standard of care of attorneys practicing personal injury law. (Watters Decl., ¶ 57.)

As for the Garcia Matter, Defendants assert that, after obtaining a $100,000 settlement for Plaintiff, the matter was concluded once applicable liens were paid out of the settlement proceeds. After paying an outstanding Medi-Cal lien, by letter dated October 5, 2021, Defendants remitted the balance of the trust account to Plaintiff and closed the Garcia Matter (Boyce Decl., Exhibits 18-21; Davidson Decl., Exhibit 20.) Watters opines that, once the settlement concluded and applicable liens were paid out of the settlement proceeds, Defendants had no further obligation to Plaintiff in the Garcia Matter. (Watters Decl., ¶ 48.)

Defendants further assert that they have a reasonable possibility of prevailing on the claim for professional negligence because the claim is time-barred by the statute of limitations under Code of Civil Procedure, section 340.6, which establishes a one-year limitation for attorney malpractice claims. Defendants contend that their representation of Plaintiff ended on September 14, 2021, when Plaintiff terminated their services, and that Plaintiff filed a substitution of counsel with the Court on October 6, 2021, reflecting his intent to represent himself in the Perez Action. (Boyce Decl., Exhibit 4.)

Thus, Defendants contend that Plaintiff’s Complaint filed on October 9, 2024, is well beyond the one-year statute of limitations set forth under section 340.6. Likewise, Defendants also argue that Plaintiff’s claims for breach of contract, breach of fiduciary duty, intentional infliction of emotional distress, conversion, unjust enrichment, breach of the implied covenant of good faith and fair dealing, declaratory relief, and unfair business practices must fail as well, as these claims rely upon a claim against an attorney for a wrongful act or omission.

With regard to Plaintiff’s claim for breach of contract, Defendant denies Plaintiff’s allegation that, prior to signing the retainer agreement, the parties made an oral agreement that Defendants would not take a percentage of any recovery of the first $15,000 recovered. (Complaint, p. 7.) Boyce attests that there was never any oral agreement related to Defendants’ contingent fees; rather, the parties’ contingent fee contract memorializes the agreement between Plaintiff and Defendants. (Boyce Decl., ¶¶ 8-10 and ¶ 30-32, Exhibits 2, 14.)

In support, Defendants cite the integration clause of the parties’ contingent fee contract, which states that the contract itself represents the entire agreement between the parties. (Boyce Decl., Exhibit 14, ¶ 24.) Defendants also argue that Plaintiff’s claim for conversion is not actionable because they were legal obligated to withhold money and pay a lien imposed by Medi-Cal, from which Plaintiff received

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020517: JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al. 02/10/2026 Hearing on Motion - Other Requiring Out of State Plaintiff to Post an Undertaking in Department 54

benefits. (Boyce Decl., Exhibits 18-19.) Defendants further attest to Plaintiff using DocuSign to sign the contingent fee contract. (Boyce Decl., ¶ 7.)

Defendants estimate that total costs through trial are anticipated to be $721,500, consisting of the following: (1) witness deposition costs of $172,000; (2) Plaintiff’s expert deposition costs of $247,000; (3) Defendants’ expert costs of $15,000; and (4) attorney’s fees of $287,500. (Davidson Decl., ¶ 46.) Davidson explains that the costs and fees are reasonable and necessary for the proper defense of this action, as legal malpractice cases require extensive discovery, expert testimony, and preparation. (Id. at ¶ 47.) The costs and attorney’s fees are based on Davidson’s experience in similar cases and assessment of the complexity of this matter. (Id. at ¶ 42.)

In opposition, Plaintiff concedes he is an out-of-state resident but argues that Defendants are improperly bringing the present motion as a means to limit Plaintiff’s access to the court system, and that Defendants’ request for an undertaking of $721,500 is excessive. In opposition to Defendants’ evidentiary submissions, Plaintiff argues that his September 14, 2021 letter terminating Defendants’ services concerned the parties’ dispute over fees for Plaintiff’s potential UIM claim in the Perez Action and was not a blanket termination of all representation across all of Plaintiff’s matters, and that he was forced to represent himself in the Garcia Matter when it was consolidated with other litigation. (Opp., Exhibits 141-144.)

Plaintiff also argues that his claims are not time-barred for the following reasons: (1) Defendants engaged in correspondence and/or conduct regarding the Garcia Matter (id., Exhibits 141-144) and Perez Action (id., Exhibits 6, 7, 40, 89-1, 89-2, and 90) that created a reasonable reliance that representation was ongoing; (2) Plaintiff did not incur actual damages until 2023 or 2024 in the Perez Action, and that injury “has not fully materialized” in the Garcia Matter; (3) Defendants’ misuse of Plaintiff’s e-signature and misspelling of Plaintiff’s name constituted willful concealment that tolls the statute of limitations; and (4) Plaintiff’s cognitive impairments and forced self-representation support equitable tolling of the statute.

Plaintiff has also raised a number of disputes with the declarations Boyce, Davidson, and Watters, but submits no new evidence in support thereof.

In the alternative, Plaintiff requests that the Court set a limited undertaking amount tied to filing fees and reasonable costs. Plaintiff argues that the Code of Civil Procedure section 1030 only allows for recovery of attorney’s fees where a separate statute or contract authorizes such recovery, which Defendants have not identified in their motion.

Here, Defendants have submitted evidence that Plaintiff retained their services for representation. (Boyce Decl., Exhibits 2, 14.) In the Perez Action, Defendants have provided evidence of a proposed settlement from Perez’s counsel, Plaintiff’s subsequent letter terminating Defendants’ services, and Defendants’ letter acknowledging the termination, which corroborates Defendants’ assertion that the parties disagreed on the contingent fee arrangement in the Perez

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020517: JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al. 02/10/2026 Hearing on Motion - Other Requiring Out of State Plaintiff to Post an Undertaking in Department 54

Action and that Plaintiff terminated representation thereafter. (Davidson Decl., Exhibits 6, 12, 13.) Defendants have provided evidence that Plaintiff filed a substitution of counsel in the Perez Action, in which he proceeded to represent himself. (Boyce Decl., Exhibit 4.) Defendants have also provided evidence of a settlement and payment to Defendant in the Garcia Matter, including the balance of Plaintiff’s client trust account, as well as a letter to Plaintiff communicating the closure of the matter. (Boyce Decl., Exhibits 18-21.)

Based on this evidence, the Court finds sufficient credible evidence to controvert Plaintiff’s allegations that Defendants coerced him into accepting a low settlement in the Perez Action and that they abandoned their representation of him in the Perez Action and Garcia Matter. While Plaintiff insists that Defendants engaged in activities created reasonable reliance that their representation was ongoing after September/October 2021, Plaintiff’s exhibits submitted in support of this assertion merely show Plaintiff’s requests for documentation from Defendants’ and Defendants’ responses in turn. (See, e.g., Opp., Exhibits 89-1, 89-2, and 90.)

Accordingly, because Defendants’ alleged coercion and abandonment form the basis for several of Plaintiff’s causes of action, Defendants have demonstrated a reasonable possibility that they will obtain favorable judgments on Plaintiff’s claims for legal malpractice, breach of fiduciary duty, fraudulent misrepresentation, negligence, punitive damages, and unfair business practices.

Plaintiff’s remaining causes of action for breach of contract, intentional infliction of emotional distress, conversion, unjust enrichment, breach of the implied covenant of good faith and fair dealing, and declaratory relief all allege, in some way, that Defendants failed to honor the contract between the parties, that Defendants misused or misrepresented Plaintiff’s signature, and that Defendants wrongfully withheld funds and imposed liens. In response, Defendants have provided evidence of the following: (1) the parties’ contingent fee contract, the terms of which indicate a 25-percent contingent fee and integration clause (Boyce Decl., Exhibit 2, ¶¶ 4, 24.); (2) the notice of Medi-Cal lien and payment thereof before distributing the remainder of the client trust account to Plaintiff (Boyce Decl., Exhibits 18-21); and (3) evidence that Plaintiff signed the contingent fee contract through DocuSign (Boyce Decl., ¶ 7).

Plaintiff does not dispute that he was a recipient of Medi-Cal benefits. Plaintiff also has not provided evidence of a different version of the purported agreement between the parties. Accordingly, the Court finds Defendants have demonstrated a reasonable possibility of favorable judgments on the remaining claims.

Although a motion under Code of Civil Procedure section 1030 may secure an award of costs and attorney’s fees, subdivision (a) defines such fees as “reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.” Defendants have cited no statute or contract under which they would be entitled to attorney’s fees in this matter. Therefore, the Court will not include any amount for Defendants’ anticipated attorney’s fees in the undertaking. Based on the remaining estimates for witness deposition costs of $172,000, Plaintiff’s expert deposition costs of $247,000, and Defendants’ expert costs of $15,000

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020517: JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al. 02/10/2026 Hearing on Motion - Other Requiring Out of State Plaintiff to Post an Undertaking in Department 54

(Davidson Decl., ¶ 46.), the motion is GRANTED in part for an undertaking of $434,000.

Defendants’ unopposed request for judicial notice is also GRANTED for the limited purposes of judicial notice. (See Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein].)

Defendants shall submit an order pursuant to California Rules of Court 3.1312 for the Court’s signature. No later than 30 days after service of the signed order, Plaintiff shall file an undertaking in the amount of $434,000. (Code Civ. Proc., § 1030, subd. (d).) If Plaintiff “fails to file the undertaking within the time allowed,” this case “shall be dismissed as to” Defendants. (Ibid.)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020517: JEFFERSON vs LAW OFFICES OF FRANK D PENNY A PROFESSIONAL CORPORATION, et al. 02/10/2026 Hearing on Motion - Other Requiring Out of State Plaintiff to Post an Undertaking in Department 54

the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.