Judge: Andrew E. Cooper, Case: 24CHCV01303, Date: 2025-05-09 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 24CHCV01303    Hearing Date: May 9, 2025    Dept: F51

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO REQUIRE PLAINTIFF TO POST AN UNDERTAKING

Motion filed: 03/28/2023

MOVING PARTY:               Defendants Todd and Patricia Olson

RESPONDING PARTY:     Plaintiff Alberto Barrera

NOTICE:                               OK (timely via electronic mail)

RELIEF REQUESTED:      An order imposing a $59,000.00 undertaking.

TENTATIVE RULING:      The motion is GRANTED IN PART. Plaintiff is ordered to post an undertaking of $35,000.00 within 30 days, or Defendants may apply ex parte for dismissal with prejudice.

BACKGROUND

            Plaintiff Alberto Barrera (“Plaintiff”) filed this action against defendants Heather Olson, Todd Olson, Patricia Olson, and The Olson Agency (“Agency”) on April 11, 2024, asserting claims for (1) negligence, (2) premises liability, and (3) “common law strict liability”.

(Where necessary, the Court refers to the individual Defendants by first names, for clarity rather than out of familiarity or disrespect.)

Plaintiff alleges each defendant owns, possesses, or otherwise controls the property located at 20719 Nashville St. in Chatsworth, California (“the Property”). (Compl., ¶ 8.) Heather and the Agency hired Plaintiff as a handyman for the Property around September 2023. (Id., ¶ 9.)

Around January 2, 2024, Plaintiff alleges he was working on the Property when “[a] dog, owned by Defendant HEATHER OLSON, was inadequately supervised and jumped onto [an] unsecured concrete wall, causing the wall to fall onto Plaintiff” and injuring him. (Id., ¶ 13.) Plaintiff alleges Todd, Patricia, and the Agency harbored the dog owned by Heather, and all the defendants collectively failed to maintain the Property by “leaving an unsecured concrete wall on it for an undetermined period of time.” (Id., ¶¶ 14-15.)

On March 28, 2025, Todd and Patricia (“Defendants”) moved for an order requiring Plaintiff, a nonresident litigant, to post an undertaking of $59,000.00. On April 28, 2025, Plaintiff filed his opposition. On May 2, 2025, Defendants replied.

ANALYSIS

“Code of Civil Procedure section 1030 provides that upon a defendant's motion, 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.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The section reads:

“(a) 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. 

(b) 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. 

(c) 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.)

            “The purpose of [section 1030] 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.” ’ . . . The statute therefore acts to prevent out-of-state residents from filing frivolous lawsuits against California residents. . . . ” (Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331, internal citations omitted.)

            A defendant proposing the imposition of an undertaking bears the burden to demonstrate grounds for the undertaking, namely (1) the plaintiff’s nonresidency and (2) a reasonable possibility that the defendant will obtain judgment in its favor. (See Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914; see also .)

            It is undisputed that Plaintiff resides in Mexico, not California. (See Opp., 3:7-9 [Plaintiff “move[d] himself and his wife from the Los Angeles area to . . . Mexico”].) He is a nonresident plaintiff subject to section 1030.

Defendants have demonstrated a reasonable possibility they will prevail on their claims. In his October 31, 2024 deposition, Plaintiff identified no witnesses to the accident except himself. He also admitted he did not directly see much of Heather’s dogs alleged misbehavior, which is what he bases his suit on. His testimony on the incident was sufficiently unclear that a jury might choose not to credit it. Having shown that Plaintiff must rely heavily on his own testimony, and that his testimony regarding the incident is confused, Defendants have carried their minimal burden.

            Defendants have not, as Plaintiff contends, offered “absolutely no competent evidence” showing they might prevail. (Opp., 4:8-9.) Plaintiffs’ own testimony is competent evidence. Plaintiff argues Defendants’ motion should fail because they “simply highlight contested facts” and “present disputed questions of fact”. (Id., 4:11-15.) Defendants have, indeed, presented such questions, but they have also shown there is only one percipient witness to Plaintiff’s injury – Plaintiff himself – and that the sole witness’s testimony on the matter is somewhat confused. That is sufficient to establish the minimal reasonable possibility that a jury would find in Defendants’ favor on Plaintiff’s claims.

            In his opposition, Plaintiff invokes a three-factor test imposed in a federal district court case, A. Farber & Partners, Inc. v. Garber (C.D. Cal. 2006) 417 F.Supp.2d 1143, 1147. Federal trial precedent is not binding on this Court. Moreover, Plaintiff appears to incorporate the amount of the proposed undertaking into the reasonable possibility of prevailing, which improperly begs the question posed in the analysis.

            “Where the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Code of Civil Procedure section 1030.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1433-1434; see also Bank of America v. Superior Court (1967) 255 Cal.App.2d 575, 578.) However, before security may be waived, “the plaintiff should make a prima facie showing that he has unsuccessfully attempted to obtain the required undertaking or that he is unable to furnish it.” (Ibid., citing Fuller v. State of California (1969) 1 Cal.App.3d 664, 668.)

Here, Plaintiff attests that he and his wife are unable to earn an independent income, and they rely on the support of their three children who send them approximately $200-$300 per week. (See Barrera Decl., ¶¶ 7-9.) Plaintiff struggled to pay his bills when he resided in California and he received government benefits intended for low-income individuals. (Id., ¶¶ 4-6, 10.) Although this evidence generally illustrates Plaintiff might struggle to furnish an undertaking, it does not establish he is unable to furnish it, nor does it show he has attempted to do so. Without a better showing, the Court declines to waive the undertaking owed under section 1030.

Turning to the amount of the proposed undertaking: Counsel attests to four experts, including a separate “construction/engineer expert” and “biomechanical expert” and a “dog behavior expert”. (Plessala Decl., ¶ 2(A)-(D).) The Court reduces the requested amount of the undertaking to $35,000.00

CONCLUSION

The motion is GRANTED IN PART. Plaintiff is ordered to post an undertaking of $35,000.00 within 30 days, or Defendants may apply ex parte for dismissal with prejudice.