Tentative Ruling: Collaborative Imaging Technology, LLC, v. CMI Management, LLC, et al
Case Number
24CV05224
Case Type
Hearing Date / Time
Mon, 06/15/2026 - 10:00
Nature of Proceedings
1. Motion to Quash; 2. Motion for Order re Undertaking; 3. Motions to Compel (3)
Tentative Ruling
Collaborative Imaging Technology, LLC, v. CMI Management, LLC, et al.
Case No. 24CV05224
Hearing Date: June 15, 2026
HEARING:
- Motion of Collaborative Imaging Technology to Quash Deposition Subpoenas to Proskauer Rose LLP and to King & Spaulding LLP (filed June 13, 2025)
- Motion of Defendants to Compel Production of Electronically Stored Information (filed April 8, 2026)
- Motion of Collaborative Imaging Technology to Compel Further Responses to Interrogatories (filed April 23, 2026)
- Motion of Collaborative Imaging Technology to Compel Further Responses to Requests for Admission (filed April 23, 2026)
- Motion of Defendants to Post an Undertaking (filed March 10, 2026)
ATTORNEYS: For Plaintiff and Cross-Defendant Collaborative Imaging Technology: Nilay U. Vora, Jeffrey A. Atteberry, Elizabeth A. Greenman, Andrew I. Campa, The Vora Law Firm, P.C.
For Defendants and Cross-Complainants CMI Management, LLC, Pueblo Radiology Medical Group, Inc., and Pueblo Radiology Associates, Inc.: Christopher B. Queally, Imran F. Vakil, Gordon Rees Scully Mansukhani, LLP
For Cross-Defendant Collaborative Imaging, LLC: Elizabeth Fellmeth, Freeman Mathis & Gary, LLP
For Third-Party Deponent King & Spalding LLP: Jessica R. MacGregor, Long & Levit LLP
TENTATIVE RULING:
- With respect to the motion of Collaborative Imaging Technology to quash deposition subpoenas to Proskauer Rose LLP and to King & Spaulding LLP, filed on June 13, 2025, after independently considering the Discovery Referee’s findings and any objections and responses thereto filed with the court, the court adopts, in full, as the order of the court the amended second recommendation of the Discovery Referee, filed on February 13, 2026, and the first recommendation of the Discovery Referee, filed on November 3, 2025, to the extent not modified or superseded by the amended second recommendation.
- The hearings on the motion of defendants to compel production of electronically stored information, filed on April 8, 2026, on the motion of Collaborative Imaging Technology to compel further responses to interrogatories, filed on April 23, 2026, and on the motion of Collaborative Imaging Technology to compel further responses to requests for admission, filed on April 23, 2026, are continued to August 3, 2026.
- The motion of defendants for an order requiring plaintiff to post an undertaking pursuant to Code of Civil Procedure section 1030 is denied without prejudice.
- The report filed with the court on February 9, 2026, by the Discovery Referee entitled, “Second Recommendations re Plaintiff and Cross-Defendant Collaborative Imaging Technology, LLC’s Motion to Quash Deposition Subpoenas to Proskauer Rose LLP and King & Spalding LLP, and for Sanctions,” is ordered filed under seal.
Background:
The procedural history of this matter is as follows:
On September 19, 2024, plaintiff Collaborative Imaging Technology, LLC, (CIT) filed its original complaint in this action asserting three causes of action against defendants CMI Management, LLC, (CMIM), Pueblo Radiology Medical Group, Inc. (PRMG), and Pueblo Radiology Associates, Inc. (PRA) (collectively, defendants or Pueblo): (1) breach of contract; (2) declaratory relief; and (3) promissory fraud. The complaint was initially lodged with the court provisionally under seal, but was unsealed and filed in the public record following the court’s denial of CIT’s motion to seal.
On November 21, 2024, defendants filed their motion to compel arbitration of their breach of contract claims and to stay the balance of the action.
On January 8, 2025, defendants made an ex parte application to stay discovery pending disposition of their motion to compel arbitration, which was partially granted by the court on January 9 to stay discovery to February 24 or further order of the court.
On February 18, 2025, the parties filed their initial stipulation, entered as the court’s order, withdrawing the pending motion to compel arbitration and setting deadlines for responsive pleadings.
On February 21, 2025, the parties filed an amended stipulation, entered as the court’s order, again withdrawing the pending motion to compel arbitration and setting deadlines for responsive pleadings.
On February 27, 2025, defendants filed their answer to the complaint, generally denying the allegations of the complaint and asserting 23 affirmative defenses. Defendants concurrently filed their cross-complaint against cross-defendants CIT and Collaborative Imaging, LLC (CI), asserting six causes of action: (1) breach of contract (specific performance); (2) breach of contract (damages); (3) breach of the implied covenant of good faith and fair dealing; (4) accounting; (5) breach of fiduciary duty; and (6) tortious interference with contractual relations.
On April 17, 2025, defendants filed their first amended answer to the complaint, generally denying the allegations of the complaint and asserting 19 affirmative defenses.
On April 25, 2025, CIT filed its demurrer to the fourth, fifth, and sixth causes of action of Pueblo’s cross-complaint. Also on April 25, CIT filed a motion to strike portions of Pueblo’s cross-complaint, and a motion for protective order relating to the number of special interrogatories.
On April 30, 2025, CIT filed a declaration of demurring party stating that CIT intended to file a demurrer to Pueblo’s answer to the complaint to support an automatic extension of time.
On May 15, 2025, Pueblo filed a motion to stay CIT’s complaint on the grounds that CIT has conducted intrastate business and has failed to register to do business in California.
On May 28, 2025, Pueblo filed its second amended answer (SAA) to CIT’s complaint, generally denying the allegations of the complaint and asserting 19 affirmative defenses. Also on May 28, Pueblo filed a motion to seal portions of its motion to stay the complaint.
On June 11, 2025, CIT filed its motion to compel arbitration of the cross-complaint.
On June 13, 2025, CIT filed its motion to quash deposition subpoenas to Proskauer Rose LLP and to King & Spaulding LLP.
On June 18, 2025, CI filed its joinder in CIT’s motion to compel arbitration.
On July 7, 2025, Pueblo filed its combined motion to stay the deposition of, or quash the notice of deposition of, Laura Traube, M.D., and for protective order.
On July 10, 2025, CIT filed its demurrer to Pueblo’s SAA. CIT concurrently filed a motion to strike portions of the SAA.
On July 18, 2025, CIT filed its motion for sanctions under Code of Civil Procedure sections 128.7 and 128.5.
On July 21, 2025, Pueblo filed an ex parte application to stay all discovery pending disposition of the motion to compel arbitration. The ex parte application was heard and granted on July 22, staying discovery pending the future hearing of all pending motions.
Also on July 21, 2025, CIT filed motions to compel further responses to interrogatories, further responses to requests for admissions, and further responses to requests for production of documents.
On July 22, 2025, Pueblo filed opposition to the demurrer to the cross-complaint, motion to strike portions of the cross-complaint, motion for protective order, and motion to compel arbitration. Also on July 22, CIT filed opposition to the motion to stay complaint, combined motion as to the deposition of Traube, and motion to quash deposition subpoenas as to Proskauer Rose and King & Spaulding.
Also on July 22, 2025, Pueblo filed a motion to seal certain documents lodged provisionally under seal in support of Pueblo’s motion to quash.
On July 28, 2025, CIT filed replies to the demurrer to the cross-complaint, motion to strike, motion to compel arbitration, motion to quash subpoenas as to Proskauer Rose and King & Spaulding (with reply declarations), and motion for protective order. Also on July 28, Pueblo filed replies as to the combined motion as to the deposition of Traube, and the motion to stay complaint (with reply declarations, a request for judicial notice, and objections to evidence).
On August 4, 2025, the court denied the motion of CIT, joined by CI, to compel arbitration. The court ordered the parties to meet and confer to discuss whether the denial of the motion to compel arbitration affected any other pending motion. The court continued all other then-pending motions to September 22.
On August 29, 2025, in response to the court’s orders of August 4, the parties filed a joint status report regarding their existing disputes in light of the court’s denial of the motion to compel arbitration.
On September 15, 2025, CIT filed replies to the motion for sanctions, demurrer to the SAA, motion to strike portions of the SAA, motion to compel further responses to requests for production of documents, motion to compel further responses to requests for admission, and motion to compel further responses to interrogatories.
On September 16, 2025, Pueblo filed opposition to the demurrer to the SAA, and to the motion for sanctions.
On September 22, 2025, the court made a number of rulings, including: (1) CIT’s
demurrer to the cross-complaint of Pueblo was sustained, with leave to amend, as to the sixth cause of action (tortious interference with contract), and was in all other respects overruled; (2) the motion of CIT to strike portions of the cross-complaint was denied in its entirety; (3) CIT’s demurrer to the SAA was sustained, with leave to amend, as to the seventh (litigation privilege) and ninth (uncertainty) affirmative defenses and was in all other respects overruled; (4) the motion of CIT to strike portions of the SAA was denied in its entirety; (5) the motion of Pueblo, filed May 28, 2025, to file certain documents under seal was denied; and (6) the motion of Pueblo, filed July 22, 2025, to file under seal portions of certain documents was granted. The court also stated its intention to appoint a discovery referee. All other matters set for hearing on that calendar were continued to November 24.
On September 29, 2025, Pueblo filed its notice pursuant to the court’s September 22 order electing to file in the public record those documents for which its motion to seal was denied.
On October 1, 2025, the court entered its order on the stipulation of the parties appointing R.A. Carrington as Discovery Referee extending to all matters concerning discovery in this action. The order transferred all pending discovery motions to the referee.
On October 7, 2025, Pueblo filed its third amended answer to CIT’s complaint.
On October 13, 2025, CIT filed its answer to Pueblo’s cross-complaint, generally denying the allegations thereof and asserting 26 affirmative defenses.
On November 3, 2025, Discovery Referee Carrington filed five reports and an attachment: (1) Recommendations on Plaintiff’s Motion for Protective Order and for Sanctions (re motion filed Apr. 25); (2) Recommendations Re Plaintiff and Cross-Defendant Collaborative Image Technology, LLC’s Motion to Quash Subpoenas to Proskauer Rose LLP and King & Spalding LLP, and to Pay Sanctions (re motion filed June 13); (3) Recommendation on Defendants’ Combined (a) Motion to Stay Deposition/ Quash Deposition Notice of Laura Traube, M.D., and (b) Motion for a Protective Order as to the Deposition of Laura E. Traube M.D. Issued by Plaintiff Collaborative Image Technology, LLC (re motion filed July 7); (4) (i) Recommendations Re Plaintiff’s Interrogatory and Requests for Admission Motions (re motions filed July 21) and (ii) Attachment to the Recommendations; and (5) Recommendations Re Plaintiff’s Production Demand Motion (re motion filed July 21).
On November 13, 2025, CIT filed its objections to the Recommendations Re Plaintiff and Cross-Defendant Collaborative Image Technology, LLC’s Motion to Quash Subpoenas to Proskauer Rose LLP and King & Spalding LLP, and to Pay Sanctions (re motion filed June 13). In support of these objections, CIT filed the declaration of attorney Tamara Wiesebron. Also on November 13, CI filed its joinder to CIT’s objections.
On November 17, 2025, CIT filed a sur-reply in support of its motion for sanctions under Code of Civil Procedure sections 128.7 and 128.5 against defendants.
On November 24, 2025, the court made a number of rulings, including adopting and making as orders of the court, the recommendations of the Discovery Referee as set forth in: (1) Recommendations on Plaintiff’s Motion for Protective Order and for Sanctions (re motion filed Apr. 25, 2025), filed November 3, 2025; (2) Recommendation on Defendants’ Combined (a) Motion to Stay Deposition/ Quash Deposition Notice of Laura Traube, M.D., and (b) Motion for a Protective Order as to the Deposition of Laura E. Traube M.D. Issued by Plaintiff Collaborative Image Technology, LLC (re motion filed July 7), filed November 3, 2025; (3) Recommendations Re Plaintiff’s Interrogatory and Requests for Admission Motions (re 2 motions filed July 21) , filed November 3, 2025, and (4) Attachment to the Recommendations, filed November 3, 2025; and (5) Recommendations Re Plaintiff’s Production Demand Motion (re motion filed July 21), filed November 3, 2025, with minor corrections and date changes. (Minute Order, filed Nov. 24, 2025, pp. 1, 5.)
The court also adopted recommendation No. 4 of the Discovery Referee’s Recommendations Re Plaintiff and Cross-Defendant Collaborative Image Technology, LLC’s Motion to Quash Subpoenas to Proskauer Rose LLP and King & Spalding LLP, and to Pay Sanctions (re motion filed June 13) requiring further briefing to the Discovery Referee. The court deferred resolution of all other matters pending the Discovery Referee’s completed recommendations. The court also set deadlines for further briefing and continued the hearing on any objections to this hearing.
The court further continued the hearing on the motion of defendants to stay the complaint and the motion of plaintiff for sanctions re motion to stay to February 9, 2026. On February 9, the court deferred disposition of CIT’s motion to quash subpoenas to Proskauer Rose LLP and King & Spalding LLP, and to pay sanctions (re motion filed June 13, 2025) pending a final recommendation from the Discovery Referee and the presentation of objections, if any, continuing the hearing on such motion, recommendation, and objections, to April 6, 2026. Also on February 9, the court denied without prejudice the motion of Pueblo to stay plaintiff’s complaint. Also on February 9, the court denied CIT’s motion for an award of sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7.
Further on February 9, 2026, the Discovery Referee filed the original Second Recommendations re Plaintiff and Cross-Defendant Collaborative Imaging Technology, LLC’s Motion to Quash Deposition Subpoenas to Proskauer Rose LLP and King & Spalding LLP, and for Sanctions. On February 11, 2026, the Discovery Referee granted defendants’ request that certain language in the original second recommendation on this motion be redacted, and requested that the February 9 recommendation be withdrawn and replaced with the amended second recommendation (Amended Second Recommendation) filed on February 13. The court will grant this request; because the original second recommendation is now improperly in the court’s public file and is a discovery matter (see Cal. Rules of Court, rule 2.550(a)(3)), it will be filed under seal.
On February 19, 2026, the court entered its order on the stipulation of the parties for a protective order regarding confidential information. Also on February 19, objections were filed to the Discovery Referee’s Amended Second Recommendation by non-parties Proskauer Rose LLP and King & Spalding LLP, and by CIT (an original and further objection).
On February 23, 2026, Pueblo filed an objection to the Amended Second Recommendation. Responses to the objections were filed on March 2. Also on March 2, Pueblo filed a motion to file portions of such documents under seal. A response to Pueblo’s objection was filed on March 5 by King & Spalding and joined by Proskauer Rose.
On March 10, 2026, Pueblo filed its motion for an order requiring CIT to post an undertaking of $669,791 pursuant to Code of Civil Procedure section 1030. This motion was noticed for hearing on April 6. On March 23, CIT filed its opposition; on March 27, Pueblo filed its reply.
On April 6, 2026, the court granted the motion to seal filed on March 2, 2026. The court continued the motion to require an undertaking and ruling on the objections to the Amended Recommendation to this hearing of June 15.
On April 8, 2026, Pueblo filed its motion to compel CIT to produce electronically stored information (ESI). This motion is noticed for this hearing of June 15.
On April 10, 2026, Pueblo filed its motion to compel further responses to request for production of documents. This motion is noticed for hearing on August 3.
On April 14, 2026, Pueblo filed its motion to compel further responses to special interrogatories. This motion is noticed for hearing on August 3.
On April 23, 2026, CIT filed its motion to compel further responses to requests for admission. This motion is noticed for this hearing of June 15. Also on April 23, CIT filed its motion to compel further responses to special interrogatories. This motion is also noticed for hearing on June 15.
On June 1, 2026, the Discovery Referee filed and electronically served recommendations to: (1) CIT’s motion to compel further responses to the requests for admission (re motion filed April 23); (2) CIT’s motion to compel further responses to special interrogatories (re motion filed April 23); (3) Pueblo’s motion to compel production of ESI (re motion filed April 8); (4) Pueblo’s motion to compel further responses to special interrogatories (re motion filed April 14); and (5) Pueblo’s motion to compel further responses to production of documents (re motion filed April 10).
Analysis:
(1) Motion to Quash Subpoenas
(The summary herein is intended to provide a general background to the court’s ruling and is not intended to be exhaustive. The court has reviewed and considered all of the evidence and arguments presented in the objections and responses to the Discovery Referee’s recommendations.)
As detailed in the November 3, 2025, first recommendation of the Discovery Referee, Pueblo served deposition subpoenas on law firms Proskauer Rose
LLP (Proskauer Rose), containing 67 document requests, and King & Spalding LLP (King & Spalding), containing 57 document requests. CIT filed its motion to quash each of these subpoenas on June 13, 2025. The motion was opposed by Pueblo. Following his appointment, this, and all other discovery matters, were assigned to the Discovery Referee for a recommendation.
The Discovery Referee filed his first recommendation on November 3, 2025 (First Recommendation). In that recommendation, the Discovery Referee addressed the objections to the subpoenas, recommending that some objections be overruled and ruling on some objections, in particular, the objections as to the attorney-client privilege, be deferred for further briefing. CIT filed its objections to the First Recommendation, which was joined by CI. On November 24, 2025, the court adopted the recommendation for further briefing and deferred ruling on the objections to the First Recommendation until the Discovery Referee provided his complete recommendations.
In the Amended Second Recommendation, the Discovery Referee recommends overruling the attorney-client and other objections in part, and sustaining the attorney-client and other objections in part. The central issue of the Amended Second Recommendation is the scope of the law firms’ joint representation of CI and CMIM with respect to three actions: (1) California Managed Imaging Medical Group, Inc. v. Zotec Partners, LLC, case No. 21STCV26890, (Los Angeles County Superior Court, filed July 21, 2021) (the California Action), (2) Zotec Partners, LLC v. Collaborative Imaging, LLC, No. 471-04069-2019 (Tex. Dist. Ct. Collin Cnty. 471st Dist., filed June 30, 2019) (the Texas Action), and (3) Zotec Partners LLC v. Tex Radiology Assocs., LLP, No. 29D05-1905-PL-004294 (Ind. Super. Ct. Hamilton Cnty. filed May 3, 19 2019) (the Indiana Action).
With respect to King & Spalding, the Discovery Referee concluded that the parties had waived the attorney-client privilege to any documents that pertain to the California Action. (Amended Second Recommendation, p. 16.) The Discovery Referee also concluded that the waiver by implication also encompassed the Texas Action and the Indiana Action. (Id., pp. 17-24.)
With respect to Proskauer Rose, the Discovery Referee concluded that the joint-client exception to the attorney-client privilege applied as to the California Action. (Amended Second Recommendation, pp. 27-28.) The Discovery Referee also concluded that the joint-client exception applied as to the Texas Action, but not to the Indiana Action. (Id., pp. 28-32.)
King & Spalding argues that the Discovery Referee’s conclusions are wrong and, in particular, the Discovery Referee did not consider a letter, dated November 13, 2023, from the CMIM board of directors to CI, because that letter was not available to King & Spalding at the time of briefing before the Discovery Referee. (MacGregor decl., ¶¶ 3, 4 & exhibit A.) King & Spalding also argues that the Discovery Referee’s ruling exceeds the scope of the court’s ruling deferring ruling on the remaining objections.
Proskauer Rose joins in King & Spalding’s objections and additionally argues that the Discovery Referee overruled objections that Proskauer did not have the opportunity to address because the Discovery Referee and the court first ordered briefing as to the privilege issue only.
CIT also argues that the Discovery Referee’s conclusions are wrong.
CI joins in the objections of the law firms, argues that the Discovery Referee’s conclusions are wrong, and also argues that the subpoena is procedurally infirm because it was not served on CI.
Pueblo objects to the Amended Second Recommendation on the limited grounds of cost, seeking clarification regarding fees and costs that may be permissible in responding to the subpoenas. In response to the objections of the law firms, Pueblo argues that the Discovery Referee’s conclusions are correct. Pueblo also argues that the discussion in the November 13 letter was a request for invoices and not a statement regarding the issue of joint representation. There is substantial evidence presented to the Discovery Referee that supports the Discovery Referee’s conclusions. Moreover, the letter has been in the possession of CI since 2023, but CI did not present this letter to the Discovery Referee, instead waiting until after the Discovery Referee’s decision to argue that the November 13 letter was significant.
In cases other than references under Code of Civil Procedure section 638, “the decision of the referee or commissioner is only advisory. The court may adopt the referee’s recommendations, in whole or in part, after independently considering the referee’s findings and any objections and responses thereto filed with the court.” (Code Civ. Proc., § 644, subd. (b).)
With respect to the conclusions of the Discovery Referee, the court is persuaded that they are correct for the reasons explained in the recommendations. With respect to the November 13 letter, the objecting parties should have presented that evidence to the Discovery Referee in the first instance. While the court does not find it persuasive that the letter could not have been presented timely to the Discovery Referee, the objecting parties could also have requested the Discovery Referee to reconsider the recommendation on that ground, but did not. Nonetheless, the court has reviewed and considered the November 13 letter and finds that it does not change the analysis or result set forth in the Discovery Referee’s recommendations.
The court referred the entire motion to quash to the Discovery Referee. All parties had the opportunity to present all issues to the Discovery Referee before the Discovery Referee issued his First Recommendation. The First Recommendation included a recommendation that the issue of the attorney-client privilege be the subject of further briefing and that the recommendation as to the remaining issues be addressed with the attorney-client issue. The Discovery Referee followed that procedure.
The Discovery Referee has addressed the procedural issues with the subpoenas in the Amended Second Recommendation to the satisfaction of the court.
To the extent cost issues addressed in the Amended Second Recommendation appear to a party as ambiguous, that party needs to seek clarification from the Discovery Referee in the first instance.
The court finds persuasive and adopts, in full, the Amended Second Recommendation and the First Recommendation, to the extent not modified by the Amended Second Recommendation, of the Discovery Referee, after independently considering the referee’s findings and any objections and responses thereto filed with the court.
(2) Additional Discovery Recommendations
Three discovery motions are set for hearing on this calendar; two other discovery motions are set for hearing on August 3, 2026. All of these motions have been referred to the Discovery Referee, who on June 1, 2026, filed and electronically served recommendations as to these discovery motions. There is insufficient time for the court to determine whether any objections to these recommendations will have been filed in advance of this hearing, and if any objections are filed, the time for the non-objecting party to respond will not have expired. The motions on this calendar will be continued to August 3, 2026, for the court to address the recommendations and any objections thereto.
(3) Motion to Post an Undertaking
Pueblo moves for an order requiring CIT to post an undertaking in the amount of $669,791 pursuant to Code of Civil Procedure section 1030.
“When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, 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 which may be awarded in the action or special proceeding. For the purposes of this section, ‘attorney’s fees’ means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.” (Code Civ. Proc., § 1030, subd. (a).)
“The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.” (Code Civ. Proc., § 1030, subd. (b).)
“If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court's order as security for costs and attorney’s fees.” (Code Civ. Proc., § 1030, subd. (c).)
There is no dispute that plaintiff CIT is a Delaware limited liability company with its principal place of business in Texas. (Vakil decl., ¶¶ 2, 3 & exhibit A.) Consequently, CIT is a plaintiff that resides out of state and is subject to section 1030.
A moving defendant is not required to show that there is no possibility that the plaintiff could win at trial, but only that it is reasonably possible that the moving defendant would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)
Pueblo has framed the issue of defendants’ reasonable possibility of success on CIT’s complaint as based upon the parties’ differing interpretations of the Transition Agreement, the contract upon which CIT bases its causes of action. (See Complaint, ¶ 34.)
Under section 1030, subdivision (b), the motion must be accompanied by an affidavit in support of the grounds for the motion. While showing a “reasonable possibility that the moving defendant will obtain judgment in the action” is based on a relatively low standard, the standard must nonetheless be met by evidence. (Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1433 [“This court’s task is simply to determine whether any substantial evidence supports the trial court’s determination.”].)
The affidavit (here, a declaration (see Code Civ. Proc., § 2015.5)) provides evidence that CIT is an out-of-state plaintiff with no apparent assets in California. (Vakil decl., ¶¶ 2-3.) The declaration also provides evidence regarding anticipated fees and costs. (Vakil decl., ¶¶ 4-11.) The sole evidence presented regarding the reasonable possibility of success is the Transition Agreement. (Vakil decl., ¶ 13 & exhibit C.) Assuming for purposes of this discussion only that there is a reasonable possibility that defendants will succeed in defeating CIT’s claims as to the interpretation of the Transition Agreement’s audit provisions and that interpretation would defeat CIT’s claims based on a demand for an audit, CIT’s complaint also asserts a breach of the Transition Agreement by disparaging CIT to non-Pueblo practices. (Complaint, ¶ 38.) There is nothing presented by way of affidavit to show that CIT has abandoned that claim or otherwise to support a reasonable possibility of success on that claim
Pueblo’s sole reliance on the text of the Transition Agreement to support the reasonable possibility of obtaining a judgment in the action is not sufficient for the court to make the required findings under section 1030. The motion will be denied without prejudice.