Judge: Daniel M. Crowley, Case: 20STCV29325, Date: 2023-03-16 Tentative Ruling

Case Number: 20STCV29325    Hearing Date: March 16, 2023    Dept: 28

Defendant ABM Industry Groups, LLC’s Motion for Undertaking

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

BACKGROUND

On August 4, 2020, Plaintiff Margaltha Sharp (“Plaintiff”) filed this action against Defendant County of Los Angeles (“County”) for general negligence and premises liability. Plaintiff later amended the complaint to include Defendants The Judicial Council of California (“Council”) and ABM Industry Groups, LLC (“ABM”).

On October 6, 2020, County filed an answer. On April 25, 2022, ABM filed an answer.

On February 6, 2023, ABM filed a Motion for Undertaking to be heard on March 16, 2023. On March 3, 2023, Plaintiff filed an opposition. On March 9, 2023, ABM filed a reply.

Trial is currently set for June 5, 2023.

PARTY’S REQUESTS

ABM requests that the Court order Plaintiff to post an undertaking of $50,00.00.

Plaintiff requests the Court deny the motion.

OBJECTION

ABM’s Objections:

Sustained: 1, 5, 6, 7, 8, 9, 10

Overruled: 2, 3, 4,

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, ABM must prove that Plaintiff resides out of state and that there is a reasonable possibility ABM will prevail in the action. Plaintiff resides in Texas, satisfying the first element.

ABM’s moving papers do not include any arguments as to the merits of the case, instead incorporating by reference the recently filed MSJ “in the interest of judicial economy and...to avoid inundating the Court with repeated, identical facts and legal arguments.” While this approach may have saved the moving party time and energy, it was not so for the Court.  The Court still had to review the arguments being made, but instead of them being presented in the document the Court was reviewing, the Court had to search through the docket for to find the relevant documents. Additionally, the page limitations differ between a Motion for Summary Judgment and other moving papers for motions. CRC 3.113. The Court admonishes ABM in the future to include all relevant arguments in the moving papers.

Despite ABM’s failure to present arguments in the moving papers of this motion, the Court will rule on the merits.

Premises liability cases, such as this, generally require a known (whether it be actually or constructively known), non-obvious dangerous condition be the cause of Plaintiff’s injuries. Only a party who owns, controls or possess the subject premises can be liable. Plaintiff alleges she tripped and fell when her shoe was caught in the loose stair covering on an internal staircase at the Santa Monic Courthouse. ABM argues that ABM did not own, lease, occupy or control the subject premises, but instead was an independent contractor for the Council who provided maintenance and repair services. ABM states that Plaintiff has not provided admissible evidence that ABM was responsible for maintaining the subject staircase. In reviewing Plaintiff’s opposition, the Court finds that Plaintiff has identified work orders submitted by the Council to ABM for interior staircases, indicating that the subject staircases were subject to ABM’s maintenance. This can constitute an area of control.

Additionally, ABM argues it has no notice of the dangerous condition but provides no actual evidence in support of finding no actual or constructive knowledge, such as sweep sheets or inspection records.

In reviewing the presented arguments, the Court does not find that ABM has a reasonable possibility of prevailing at trial. ABM’s entire argument is that, while ABM did perform maintenance on the subject location, Plaintiff does not have evidence that they were responsible for the location’s staircase. Plaintiff submitted evidence that they were responsible for the location’s staircase. ABM’s other argument that they had no knowledge of the dangerous condition is not supported by the evidence, as ABM provided no evidence in support of this assertion. Additionally, premises liability is based on actual or constructive notice. No evidence was provided to establish that there was no constructive notice. ABM has failed to meet the requisite showing. The Court denies the motion.

CONCLUSION

Defendant ABM Industry Groups, LLC’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.