Judge Blaine K. Bowman, Case Number: 37-2023-00009049-CU-PO-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2023-00009049-CU-PO-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00009049-CU-PO-CTL LUNA VS SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant San Diego County Regional Airport Authority's motion for undertaking pursuant to CCP § 1030 is DENIED.

SDCRAA brings this motion pursuant to CCP § 1030 [Security for costs and attorney's fees; motion; hearing; undertaking]. This section provides: (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.

(d) The plaintiff shall file the undertaking not later than 30 days after service of the court's order requiring it or within a greater time allowed by the court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff's action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.

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Yao v. Superior Court (2002) 104 Cal.App.4th 327, explains, [t]he 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 [210 Calendar No.: Event ID: TENTATIVE RULINGS

3113829 1 CASE NUMBER: CASE TITLE: LUNA VS SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY 37-2023-00009049-CU-PO-CTL Cal.Rptr. 861], quoting from Recommendation Relating to Security for Costs (Oct. 1978) 14 Cal. Law Revision Com. Rep. (1978) p. 323.) The statute therefore acts to prevent out-of-state residents from filing frivolous lawsuits against California residents. (See also Gonzales v. Fox (1977) 68 Cal.App.3d Supp. 16, 18 [137 Cal.Rptr. 312].) The statute violates neither federal nor state due process guarantees because the 'statutory hearing procedure is the one usually prescribed for pretrial motions, that is, the opportunity to present declarations and other documentary evidence, the opportunity for both counsel to be present, and the opportunity to be heard.' (Shannon, supra, 164 Cal.App.3d at p. 913.) Yao, 104 Cal.App.4th at 331.

Based on the analysis in Shannon and Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, SDCRAA is only required to show that it is reasonably possible that it will prevail in this action. Baltayan, 90 Cal.App.4th at 1432 ['Respondents were not required to show that there was no possibility that appellant could win at trial, but only that it was reasonably possible that respondents would win. (Code Civ. Proc., §1030, subd. (b).)'].

It is undisputed that Plaintiff is not a resident of California. As pled the operative complaint alleges one cause of action against SDCRAA for dangerous condition of public property [ROA 24]. Based on the evidence SDCRAA submits, the court finds SDCRAA establishes that it is reasonably possible the trier of fact will find against Plaintiff on the issues of whether the condition at issue was dangerous and whether SDCRAA had notice of the condition. Plaintiff offers no evidence in opposition on this issue.

Therefore, the court finds SDCRAA meets its burden of establishing that it is reasonably possible that SDCRAA will prevail in this action.

In opposition Plaintiff raises indigency-based arguments citing to Baltayan and Alshafie v. Lallande (2009) 171 Cal.App.4th 421. Alshafie explains, [e]ven if the defendant establishes the grounds for an undertaking, the trial court may waive the requirement if the plaintiff establishes indigency. Section 995.240, which 'codifie[d] the common law authority of the courts' (Cal. Law Revision Com. com., 18 West's Ann.Code Civ. Proc. (2009 supp.) foll.

§ 995.240, p. 169), provides, 'The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.' (See also Baltayan v. Getemyan, supra, 90 Cal.App.4th at p. 1433, 110 Cal.Rptr.2d 72 (Baltayan ) '[w]here the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under [§ ]1030'.) The public policy underlying an indigent's entitlement to a waiver of security costs is essentially 'access trumps comfort.' (Baltayan, supra, 90 Cal.App.4th at p. 1442, 110 Cal.Rptr.2d 72 (conc. opn. of Johnson, J.).) 'In ruling indigents are entitled to a waiver of security for costs, [the State is] saying one party's economic interest in receiving its costs of litigation should it win cannot be used to deny an indigent his fundamental right of access to the courts.' (Ibid.; see Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 185, 14 Cal.Rptr.3d 917 (Cruz ) [' '[r]estricting an indigent's access to the courts because of his poverty ... contravenes the fundamental notions of equality and fairness which since the earliest days of the common law have found expression in the right to proceed in forma pauperis' '].) Alshafie, 171 Cal.App.4th at 429.

In reply, SDCRAA argues that Plaintiff fails to provide sufficient evidence of indigency. However, a review of the court file shows that on June 21, 2024, Plaintiff's Request to Waive Court Fees was granted in whole [ROA 55 – Order on Court Fee Waiver]. In light of this order, and considering the nature of Plaintiff's claims and Plaintiff's status as a minor, and also considering that SDCRAA is a public Calendar No.: Event ID: TENTATIVE RULINGS

3113829 1 CASE NUMBER: CASE TITLE: LUNA VS SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY 37-2023-00009049-CU-PO-CTL entity, the court exercises its discretion in favor of waiving the posting of security. Alshafie, 171 Cal.App.4th at 429.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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