Fullove v. Fullove

Background

Marianne Fullove sued Shaluinn Fullove over a dispute concerning a condominium in Boulder, Colorado. Marianne alleged that she and Shaluinn orally agreed to purchase the condominium for personal use and possibly as a future rental property. The condominium is titled only in Shaluinn’s name. Marianne alleged that she wired Shaluinn $145,000 as a down payment for a 50 percent interest, and that Shaluinn later fraudulently induced her to sign a promissory note that concealed the purpose of the transfer.

Marianne asserted six claims: financial elder abuse, breach of an express joint venture agreement, breach of an implied joint venture agreement, breach of fiduciary duty, intentional misrepresentation, and conversion. Shaluinn moved to dismiss, arguing that the claims were based on an oral contract transferring an interest in land and were barred by California’s statute of frauds. The court granted that motion with leave to amend. This order states that the court dismissed the second amended complaint in its entirety.

Motion for Bond

Shaluinn asked the court to require Marianne to post a $750,000 bond for anticipated attorney’s fees and costs through trial. A bond, or undertaking, is security intended to help cover specified costs that may later be awarded. The court considered federal and California rules permitting security in some circumstances when a plaintiff resides outside California and the defendant has a reasonable possibility of obtaining judgment.

The court found that the probability of success and the background and purpose of the lawsuit were neutral factors. Although the court had dismissed the second amended complaint, it stated that the anticipated third amended complaint remained to be seen, that questions existed about the promissory note and the transfer of the $145,000, and that the lawsuit could not be called frivolous. The court found that the requested security was reasonable from Shaluinn’s perspective, but neutral from Marianne’s perspective because the amount exceeded the equity in her home and equaled approximately four years of her income.

Because the factors were neutral or only slightly favored Shaluinn, the court found that a bond would not further the purposes of California’s security statute. The court therefore denied Shaluinn’s motion for a bond.

Motion for Writ of Attachment

Marianne asked the court for a writ of attachment covering Shaluinn’s assets in the amount of $1,313,108.64. A writ of attachment is a court order securing specified property to help ensure payment if the requesting party later obtains a judgment. Under the rules cited by the court, California law requires the claim to have “probable validity,” meaning that it is more likely than not that the plaintiff will obtain a judgment on the claim.

The court held that attachment was unavailable because it had dismissed the second amended complaint in its entirety and Marianne had no pending claims on which she was more likely than not to prevail.

Disposition

The court denied Shaluinn Fullove’s motion for bond and Marianne Fullove’s motion for a writ of attachment, with prejudice. The order addressed the requested security measures and did not resolve the parties’ underlying dispute on its merits.