Judge Daniel M. Crowley, Case 20STCV10279 2023-04-04 Tentative Ruling

Judge: Daniel M. Crowley, Case: 20STCV10279, Date: 2023-04-04 Tentative Ruling

Case Number: 20STCV10279 Hearing Date: April 4, 2023 Dept: 28

Defendant Kibron Asrat’s Motion for Undertaking

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

BACKGROUND

On March 12, 2020, Plaintiff David Smiley (“Plaintiff”) filed this action against Defendants Queen Arms Homeowners Association (“Queen”), Shawnda Thomas (“Shawnda”), Kibron Asrat (“Asrat”), Mac Bennett Enterprises, Inc. dba Intentional Realty & Investments (“Mac”) and Malcolm Bennett (“Bennett”) for general negligence and premises liability.

On November 17, 2020, Plaintiff filed the FAC, adding Defendant Steven Thomas (“Steven”).

On December 16, 2020, Queen and Mac filed answers and a Cross-Complaint against Cross-Defendant Steven for equitable indemnity, contribution and declaratory relief.

On December 30, 2020, Steven filed an answer. On March 18, 2021, Shawnda filed an answer. On March 24, 2021, the Court dismissed Bennett with prejudice, pursuant to Plaintiff’s request.

On March 10, 2023, Asrat filed a Motion for Undertaking to be heard on April 4, 2023. On March 21, 2023, Plaintiff filed an opposition. On March 23, 2023, Asrat filed a reply.

Trial is currently set for July 25, 2023.

PARTY’S REQUESTS

Asrat requests that the Court order Plaintiff to post an undertaking of $55,00.00.

Plaintiff 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, Asrat must prove that Plaintiff resides out of state and that there is a reasonable possibility Asrat will prevail in the action.

Asrat alleges that Plaintiff is a Canadian resident, as indicated by Plaintiff’s January 2022 deposition, in which he testified he was then living in Toronto, Canada. In Plaintiffs 2021 Form Interrogatory responses, he cited his address as “1118 Edgemont St., Los Angeles, CA 90029.” Plaintiff submitted a declaration stating that he still considers himself to be a California resident and is unaware of any state or country that would argue to the contrary. Plaintiff did not provide any evidence to indicate that he had returned to California since his 2022 deposition; his declaration was signed in Toronto, Canada.

In reviewing whether a party is considered a resident under CCP § 1030, the Court evaluates where a party’s actual residence where they are living, rather than a mailing address or an intent to return to a place. (Myers v. Carter (1960) 178 Cal.App.2d 622, 627.) Here, Plaintiff has lived in Canada for approximately 2.5 years; there is no evidence that Plaintiff has resided in California at all during this process. Plaintiff indicated in his deposition he moved to Canada for a “fresh start,” and that he had not been back to California since his move. He is not there on a particular job, such as a long-term business trip, based on the fact he has testified he is working odd jobs. Based on the evidence, the Court finds that Plaintiff, for the purposes of CCP § 1030 is not a California resident.

The Court, however, finds that Asrat has not provided any proof to support the requested bond. Asrat’s counsel submitted a declaration stating “Defendant has incurred the following recoverable costs for filing fees, motion fees, and deposition costs: $5,403.64. In addition, Defendant expects to incur $50,000 should this case proceeds through to trial.” (Decl. Of McKenzie N. Hardy ¶8.) CCP § 1030 requires a moving party submit an affidavit that sets “forth the nature and amount of the costs the defendant has incurred and expects to incur by the conclusion of the action.” A general statement that a party has incurred approximately $5,000.00 in costs and will incur an additional $50,000.00 should the case go to trial is insufficient to meet this requirement. There is no breakdown as to the cost of each expense, or the expected future expenses. The Court cannot order a party to post a $55,000.00 bond on the basis of generalized and unexplained costs. The Court denies the motion.

CONCLUSION

Defendant Kibron Asrat’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.