Judge Alison Mackenzie, Case 21STCV41226 2023-05-19 Tentative Ruling

Judge: Alison Mackenzie, Case: 21STCV41226, Date: 2023-05-19 Tentative Ruling

Case Number: 21STCV41226 Hearing Date: May 19, 2023 Dept: 207

Background

Plaintiff A.T. (“Plaintiff”) brings this action against Defendants Le Lycee Francais De Los Angeles (“Defendant”) and others based on childhood sexual abuse. Plaintiff alleges she was abused by one of Defendant’s employees while she was a student at Defendant’s school. Plaintiff’s operative First Amended Complaint, filed March 29, 2022, asserts causes of action for negligence, intentional infliction of emotional distress, and childhood sexual assault. Defendant brings this motion under Code Civ. Proc. § 1030 to require Plaintiff to post security as a nonresident plaintiff currently residing in New Jersey. Plaintiff opposes the motion.

Objections to Evidence

Plaintiff objects to the declaration of Michelle Magnier submitted with Defendant’s reply, arguing it was improper for Defendant to include new evidence in its reply as it deprived Plaintiff of the opportunity to respond to the evidence. In the interest of fairness, the Court will not consider the Magnier declaration in ruling on Defendant’s motion.

Legal Standard

In an action brought by a nonresident plaintiff, the defendant may at any time move for an order requiring the plaintiff to post security. (C.C.P. § 1030(a).) The stated grounds for the motion are that the plaintiff resides out of state or is a foreign corporation, and there is a reasonable possibility that the moving defendant will obtain a favorable judgment. (C.C.P. § 1030(b).) The motion can be brought at any time. (C.C.P. § 1030(a).) The trial court has no authority to deny the motion on the ground that it is untimely. (Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.) The motion must be accompanied by a supporting affidavit or declaration which establishes the stated grounds for the motion and sets forth the nature and amount of the costs and attorney fees the defendant has incurred and expects to incur until the action is concluded. (C.C.P. § 1030(b).) It must also be accompanied by a memorandum of points and authorities. (C.C.P. § 1030(b).)

The plaintiff may pursue several tactics in opposing a motion for security. These may include:

(1) proof that the plaintiff is not a nonresident;

(2) showing the plaintiff's indigency (CCP §995.240); and

(3) arguing the defendant's failure to make an adequate prima facie showing of a reasonable possibility of success in the action.

A plaintiff can also challenge the amount of the costs and attorney fees requested by the defendant. The security can be ordered only for “reasonable” costs, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision. (C.C.P. § 1030(a).)

To succeed on its motion, a defendant is not required to show there is no possibility the plaintiff can win at trial, or that it is reasonably likely that the defendant will prevail, only that it is reasonably possible that the defendant will win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432-33.)

Analysis

1. Untimeliness

Defendant filed this motion on April 18, 2023, with a scheduled hearing date of May 11, 2023. On April 19, Plaintiff filed an objection to Defendant’s motion, arguing the motion was untimely by one day pursuant to Code Civ. Proc. § 1005(b). The hearing date was then rescheduled to May 19, 2023. Plaintiff filed an opposition on May 8, 2023, based off this continued hearing date. Plaintiff was thus afforded more than the minimum period under section 1005(b) to prepare and file an opposition to the instant motion. “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. This rule applies even when no notice was given at all. Accordingly, a party who appears and contests a motion in the court below cannot object . . . that he had no notice of the motion or that the notice was insufficient or defective.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [internal citations omitted].) The Court declines Plaintiff’s request to take the motion off calendar because it was originally untimely under section 1005.

2. Prior Motion

Plaintiff also argues Defendant previously brought a motion to require Plaintiff to file an undertaking, which was denied by the Court. Plaintiff argues the Court’s prior denial of Defendant’s motion bars Defendant from bringing a second motion to require an undertaking. Plaintiff argues the doctrine of collateral estoppel bars Defendant from relitigating the issue of Plaintiff’s undertaking. However, Plaintiff’s own opposition acknowledges collateral estoppel acts as a bar to relitigating an issue in a subsequent action. Defendant is not seeking to relitigate this question in a new proceeding, instead Defendant has filed a second motion for the same relief in the same action. This is expressly permitted by Code Civ. Proc. § 1008.

Section 1008(b) provides in pertinent part that “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Plaintiff argues no new facts or evidence has been developed since the Court denied Defendant’s prior motion on March 6, 2023. The Court notes Defendant’s instant motion is supported by declarations from witnesses Josette Cole and Leila Hinshaw, dated March 31, 2023, and April 17, 2023, respectively. Such declarations constitute new facts and evidence which were not before the Court in ruling on Defendant’s prior motion. Accordingly, the Court finds Defendant is not prohibited from filing a second motion to require Plaintiff to file an undertaking.

3. Undertaking

Plaintiff’s non-resident status is undisputed by the parties. Plaintiff argues Defendant has failed to show a reasonable possibility that it will ultimately succeed on Plaintiff’s claims for the same reasons that Defendant’s prior motion was insufficient. The Court disagrees. The Court denied Defendant’s prior motion because it was supported solely by a conclusory declaration of counsel who characterized Plaintiff’s claims and discovery responses as weak and unsupported without putting forth any evidence supporting those characterizations. By contract, Defendant’s instant motion is supported by declarations of Josette Cole and Leila Hinshaw. Plaintiff identified these two witnesses in her discovery responses as individuals with knowledge of the facts in her complaint, yet in their declarations they each disclaim any knowledge which would support Plaintiff’s claims in this action. In moving to require an undertaking, Defendant is not obligated to affirmatively and conclusively show Defendant will prevail at trial or is even likely to prevail at trial. Rather, Defendant is only required to show a reasonably possibility that it will prevail. The Court finds Defendant has carried that burden here by presenting affirmative evidence suggesting Plaintiff will be unable to support her claims at trial.

Plaintiff also attacks the cost estimates provided by Defendant as unreasonable. On this point the Court agrees. Defendant requests Plaintiff be required to file an undertaking in the amount of $297,300. Defendant offers several cost estimates which are unsupported by any clear reasoning or evidence such as to allow the Court to determine the reasonableness of the request. For example, Defendant estimates it will expend $62,000-$68,000 to depose percipient witnesses but does not identify any specific witnesses or provide the Court with any estimate of the total number of depositions that will be required. (Szabo Decl. at ¶22.) Defendant similarly estimates it will incur $19,000 to $25,000 to subpoena records and $109,000 to $115,000 for court reporter fees, enlargements, jury fees, and photocopies, all without providing the Court with any basis for these estimates. In the absence of any supporting information, the Court finds these amounts to be unreasonable and excessive.

Defendant also seeks an award of $37,075 to $74,150 in expert witness fees. While Defendant may reasonably anticipate incurring such expert costs, Code Civ. Proc. § 1033.5(b)(1) expressly identifies “Fees of experts not ordered by the court” as one of the categories which “are not allowable as costs, except when expressly authorized by law.” Defendant represents it has served Plaintiff with an offer to compromise under C.C.P. § 998 offering only a waiver of its costs in exchange for dismissal of Plaintiff’s action. While the Court may ultimately award Defendant its reasonable expert fees if Plaintiff fails to beat the section 998 offer at trial, Courts have recognized a defense offer to compromise must carry a realistic expectation of acceptance given the particular circumstances of the case to justify an award of expert fees. “A plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to this magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable. If that truly is the situation, then a plaintiff is likely to dismiss his action without any inducement whatsoever. But if there is some reasonable possibility, however slight, that a particular defendant will be held liable, there is practically no chance that a plaintiff will accept a token or nominal offer of settlement from that defendant in view of the current cost of preparing a case for trial.” (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) “Although McHal’s liability was tenuous indeed, having in mind the enormous exposure the trial court could find that McHal had no expectation that its offer would be accepted. From this it follows that the sole purpose of the offer was to make McHal eligible for the recovery of large expert witness fees at no real risk.” (Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.) The award of expert costs under section 998 thus depends on findings of reasonableness of the expenses and the good faith of the offer. Such questions are not before the Court currently, and the Court in its discretion therefore declines to include Defendant’s expert fees in calculating the amount of Plaintiff’s undertaking.

Based on its own review of Defendant’s moving papers, the Court in its discretion determines $30,000 to be a reasonable estimate of Defendant’s recoverable costs in defending against Plaintiff’s claims. Defendant’s motion is GRANTED and Plaintiff is ordered to post bond in the amount of $30,000 within thirty days or risk dismissal of this action. (C.C.P. § 1030(d).)

Conclusion

Defendant’s motion for an undertaking is GRANTED in the amount of $30,000.