Judge: Cherol J. Nellon, Case: 21STCV38095, Date: 2023-04-19 Tentative Ruling

Case Number: 21STCV38095    Hearing Date: April 19, 2023    Dept: 28

Defendant Flexeco Incorporated’s Motion for Undertaking

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

BACKGROUND

On October 14, 2021, Plaintiffs Martin F. O’Toole, individually and as Successor-in-Interest to The Estate of Martin P. O’Toole (“Martin”) and Mary Lou O’Toole (“Mary”) filed this action against Defendants Flexeco Incorporated (“Flexeco”) Victor Gil Neyra (“Neyra”) and Eric Friedrichsen, M.D. (“Friedrichsen”) for negligence (wrongful death) and negligent hiring, retention, supervision and training (wrongful death).

On September 22, 2022, Plaintiffs filed a FAC, removing Neyra.

On October 27, 2022, Flexeco filed an answer.

On March 3, 2023, Flexeco filed a Motion for Undertaking to be heard on April 19, 2023. On April 7, 2023, Plaintiffs filed an opposition. On April 12, 2023, Flexeco filed a reply.

Trial is currently set for September 14, 2023.

PARTY’S REQUESTS

Flexeco requests that the Court order Plaintiffs to post an undertaking of $115,384.81.

Plaintiffs requests 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.)

DISCUSSION

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

Negligence causes of action, such as the ones alleged in this case, are based in Plaintiff providing evidence of four elements: duty, breach of duty, causation and damages. Flexeco argues that it is reasonably possible that Flexeco will prevail in this action, as Decedent died of a

drug overdose, meaning there is no breach of duty or causation. Decedent was a guest at Flexeco’s spa who was found by another customer, Friedrichson, passed out on the floor. Friedrichson found a Flexeco employee to help him move Decedent to his room; the employee went back to check on Decedent a few minutes later, but he was blocking the employee’s entrance. The employee then called 911, and first responders announced Decedent dead on arrival. Flexeco alleges that expert testimony will reveal that Decedent took a legal dose of drugs, not obtained on the property, and would have died even had 911 been called sooner. However, Flexeco offers no evidence in support of this assertion. There is no declaration from either counsel or the expert discussing this finding, nor is there any sort of expert report. Flexeco does not even name the expert that allegedly will be testifying to this fact. The Court cannot find there is a reasonable possibility a party will prevail at trial merely based on an unsupported statement that there will be expert testimony presented at trial. Flexeco attached three exhibits to the reply papers, none of which support the alleged expert’s testimony. Ex. B., the coroner’s report, opines that death was due to drug overdose, but does not address whether an earlier 911 call would have prevented Decedent’s death.

Flexeco has failed to meet their burden. The Court denies the motion.

CONCLUSION

Defendant Flexeco Incorporated 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.