Judge: Christopher K. Lui, Case: 21STCV41308, Date: 2023-11-09 Tentative Ruling

Case Number: 21STCV41308    Hearing Date: November 9, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            This is a medical malpractice lawsuit.

Defendant Cedars-Sinai Medical Center and Geoffrey Scott Marececk, M.D. move for an order requiring Plaintiffs to post undertakings to secure an award of costs which may be awarded in this action.

TENTATIVE RULING

Defendant Cedars-Sinai Medical Center and Geoffrey Scott Marececk, M.D. motion for an order requiring Plaintiff to post a $50,000 undertaking pursuant to Civ. Proc. Code § 1030 is GRANTED.

Plaintiff is to file the undertaking within 30 days of service of this order. (Civ. Proc. Code, § 1030(d).)

ANALYSIS

Motion For An Undertaking

Discussion

Defendants Cedars-Sinai Medical Center and Geoffrey Scott Marececk, M.D. move for an order requiring Plaintiffs to post undertakings to secure an award of costs which may be awarded in this action.

            Civ. Proc. Code § 1030 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.

(e) If the defendant’s motion for an order requiring an undertaking is filed not later than 30 days after service of summons on the defendant, further proceedings may be stayed in the discretion of the court upon application to the court by the defendant by noticed motion for the stay until 10 days after the motion for the undertaking is denied or, if granted, until 10 days after the required undertaking has been filed and the defendant has been served with a copy of the undertaking. The hearing on the application for the stay shall be held not later than 60 days after service of the summons. If the defendant files a motion for an order requiring an undertaking, which is granted but the defendant objects to the undertaking, the court may in its discretion stay the proceedings not longer than 10 days after a sufficient undertaking has been filed and the defendant has been served with a copy of the undertaking.

(f) The determinations of the court under this section have no effect on the determination of any issues on the merits of the action or special proceeding and may not be given in evidence nor referred to in the trial of the action or proceeding.

(g) An order granting or denying a motion for an undertaking under this section is not appealable.

     (Civ. Proc. Code § 1030 [bold emphasis added].)

Defendants’ motion is brought pursuant to Code of Civil Procedure section 1030 on the following basis:

Plaintiff Lindsey Gross resides in the State of Georgia. (Declaration of Jo Lynn Valoff, Exh. B, Response To FROG No. 2.5.)

Defendants have a reasonable possibility of obtaining judgment in this matter because Defendants has submitted an expert opinion that no negligent act or omission by Defendants caused or substantially contributed to Plaintiff’s injuries. (Newman Decl., ¶¶ 7 – 38.)

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606 [90 Cal. Rptr. 2d 396].)

 Because the standard of care in a medical malpractice case is a matter “peculiarly within the knowledge of experts” (Sinz v. Owens (1949) 33 Cal.2d 749, 753 [205 P.2d 3]), expert testimony is required to “prove or disprove that the defendant performed in accordance with the standard prevailing of care” unless the negligence is obvious to a layperson. (Citation omitted.) However, the expert testimony must be based on such matters as may be reasonably relied upon by an expert in forming an opinion on the subject. (Citation omitted.) With regard to a standard of care derived from a professional practice “the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice.” (Citation omitted.)

(Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

Particularly in light of Plaintiff’s failure to file an opposition, Defendants’ evidence is sufficient do demonstrate that there is a reasonable possibility of obtaining judgment in this matter.

Although Defendants did not cite any statutory or contractual basis for obtaining attorney’s fees[1], as prevailing Defendants, they would be entitled to recover costs. (Civ. Proc. Code, § 1032(a)(4) & (b).)

Defendants have submitted an estimate the costs to be awarded in this action total approximately $50,000, as set forth in the Declaration of Jo Lynn Valoff, ¶ 6, as follows:

Approximately $2,500.00 in filing and motion fees; approximately $ 1,500.00 in jury fees; $15,000.00 in deposition costs, including depositions of plaintiff, plaintiff's subsequent treaters, at least two other percipient witnesses that plaintiff identified in her discovery responses, and plaintiff's anticipated expert(s); $1,200.00 for service of process; $20,000.00 in witness fees at trial (full day testimony rates for plaintiff's anticipated experts); $3,500 in court reporter fees as established by statute; $7,000.00 on models, enlargements, and photocopies of exhibits; as well $500.00 for fees for electronic filing or service.

Assuming Defendants can justify these costs after obtaining entry of judgment in their favor, these costs total $51,200. As such, Defendants have demonstrated that the requested $50,000 undertaking is appropriate.

 As such, the motion for an order requiring Plaintiff to post a $50,000 undertaking pursuant to Civ. Proc. Code § 1030 is GRANTED. Plaintiff is to file the undertaking within 30 days of service of this order. (Civ. Proc. Code, § 1030(d).)