Judge: Cherol J. Nellon, Case: 20STCV47389, Date: 2023-04-13 Tentative Ruling

Case Number: 20STCV47389    Hearing Date: April 13, 2023    Dept: 28

Defendant State of California’s Motion for Undertaking

Having considered the moving, opposition and reply papers, the Court rules as follows.

BACKGROUND

On December 10, 2020, Plaintiffs Renaldo Orozco (“Renaldo”), Rosalia Del Carmen Orozco (“Rosalia”), Sheiffer Melissa Palacios Lopez (“Sheiffer”), and Brandon Ali Palacios Lopez (“Brandon”) filed this action against Defendants City of Los Angeles (“City”), County of Los Angeles (“County”), State of California (“State”), and Benjamin Martinez Orozco (“Benjamin”) for motor vehicle negligence, general negligence, and government code section 815.2(a) and 820(a).

On December 13, 2021, the County filed its answer to Plaintiff’s complaint. Bejamin filed his answer on January 19, 2022.

On March 29, 2022, Plaintiffs filed the FAC.

On April 5, 2022, Benjamin filed an answer. On April 12, 2022, the County filed an answer. On October 25, 2022, the Court dismissed Renaldo and Rosalia with prejudice, pursuant to Plaintiff’s request.

On December 15, 2022, Plaintiffs filed the SAC, changing the government code cause of action to dangerous condition of public property.

On December 28, 2022, the State filed an answer. On December 28, 2022, the County filed an answer. On January 3, 2023, Benjamin filed an answer.

On March 6, 2023, the State filed a Motion for Undertaking to be heard on March 28, 2023. The Court continued the hearing on the motion to April 13, 2023. On March 15, 2023, Plaintiffs filed an opposition. On March 21, 2023, the State filed a reply.

Trial is currently set for February 1, 2024.

PARTY’S REQUESTS

The State requests that the Court order Plaintiffs to post an undertaking of $150,00.00.

Plaintiffs request the Court deny the motion.

LEGAL STANDARD

Under California Code of Civil Procedure §1030, a 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 which may be awarded in the action or special proceeding when the plaintiff in an action resides out of the state. The motion shall be made on the grounds that the plaintiff resides out of the state and that there is a reasonable possibility that the moving defendant will obtain judgment in the action. It 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 the defendant has incurred and expects to incur by the conclusion of the action. 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.

For purposes of the statute, residence is based upon Plaintiffs’ actual residence, and not their domicile. (Myers v. Carter (1960) 178 Cal App 2d 622, 626.)

The moving defendant is required to show that it is reasonably possible that the moving defendant will win at trial, not that Plaintiff has no possibility to win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

A prevailing party includes: 1) a party with a monetary recovery; 2) a party in whose favor a dismissal is entered; 3) a defendant where neither plaintiff nor defendant obtains any relief; and 4) a defendant as against those plaintiffs who do not recover any relief against that defendant. (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737-738; C.C.P. § 1032(4).)

“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.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429.)

“Design immunity persists only so long as conditions have not changed. Having approved the plan or design, the governmental entity may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation of the plan. Once the entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard.” (Baldwin v. State of California (1972) 6 Cal. 3d 424, 431

“‘Substantial conformance’ with the design plans is all that is required; a minor deviation from the approved plan as designed will not preclude the application of the immunity.” (Menges v. Dep't of Transportation (2020) 59 Cal. App. 5th 13, 24.)

DISCUSSION

In order for the Court to grant a Motion for Undertaking, the State must prove that Plaintiffs reside out of state and that there is a reasonable possibility the State will prevail in the action. Plaintiffs reside in Guatemala, satisfying the first element.

Plaintiffs’ complaint alleges that Orozco was driving his car on the ramp onto SR 118, when he lost control of said vehicle. The vehicle veered towards the right and subsequently rolled down the embankment. Decedent died as a result of being pinned by Orozco's vehicle.

The State alleges that it has a reasonable possibility of prevailing under a theory of design immunity, a complete defense to a dangerous condition of public property claim. In order for design immunity to apply to a claim for a dangerous condition, a design must have been approved by a proper authority, pursuant to previously established standards. The design must have then been implemented properly and no conditions must have changed since the implementation. Should the government entity be put on notice as to a new dangerous condition, the government entity is required to act reasonable to correct or alleviate the hazard.

Plaintiff’s SAC specifically identifies the dangerous conditions as a lack of adequate guardrails or fencing, safeguards to remedy or prevent roadway flooding and signage, leading to Decedent’s death.

The subject on-ramp was constructed pursuant to three projects, two of which were focused on the on-ramp, and the third of which planted trees along the embankment. All three

contracts were approved by CALTRANS engineers, who were the officials with discretionary authority to approve such designs. Each project plan bears a stamp of “As-Built Plans,” indicating the projects were built in conformity to the approved plans. The State’s expert opined that the design was in compliance with applicable design guidelines at the time of construction but did not identify any specific guidelines in support of this opinion. The expert also did not explain how they complied with specific guidelines, just making a general statement of compliance. Such a statement is insufficient, as it provides no facts or evidence in support of such an assertion. The State did not provide any statements indicating there have been no changes to the design, nor did it attest that it was not on notice as to any dangerous condition. Currently, the moving papers do not present a reasonable likelihood of prevailing based on design immunity as they do not provide evidence in support of all elements of such a defense.

The State also argues that it has a reasonable possibility of prevailing on the basis that Orozco was the sole cause of the accident. However, the State’s entire argument in support of Orozco’s liability is based on a Traffic Collision Report. TCRs are not admissible as evidence under VC § 20013. The Court cannot find that a party has a reasonable chance of prevailing at trial if the only evidence offered in support of their argument is inadmissible.

The State also argues that it is entitled to “Sign Immunity.” Under Compton v. City of Santee (1993) 12 Cal.App.4th 591, 600, a condition of public property that is not already dangerous is not made dangerous as a matter of law simply because a public entity has placed insufficient signage at the subject location. However, Plaintiffs are not only alleging there was a lack of adequate signage. Plaintiffs also point to alleged defects in the actual construction of the ramp. As the State failed to provide adequate evidence in support of a design immunity defense, those allegations remain.

The State has failed to provide evidence of a reasonable possibility that the State prevails at trial, at this time. The Court denies the motion.

CONCLUSION

Defendant State of California’s Motion for Undertaking is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.