Judge: Daniel M. Crowley, Case: 21STCV07757, Date: 2023-04-27 Tentative Ruling

Case Number: 21STCV07757    Hearing Date: April 27, 2023    Dept: 207

Background

Plaintiff Soo Kam Yeoh (“Plaintiff”) brings this action for medical malpractice against Defendant Julian Chua, M.D. (“Defendant”) and others stemming from complications in a cosmetic surgical procedure performed on Plaintiff. Defendant brings this motion under Code Civ. Proc. § 1030 to require Plaintiff to post security as a nonresident plaintiff. Plaintiff opposes the motion.

Legal Standard

In an action brought by a nonresident plaintiff, the defendant may at any time move for an order requiring the plaintiff to post security. (C.C.P. § 1030(a).) The stated grounds for the motion are that the plaintiff resides out of state or is a foreign corporation, and there is a reasonable possibility that the moving defendant will obtain a favorable judgment. (C.C.P. § 1030(b).) The motion can be brought at any time. (C.C.P. § 1030(a).) The trial court has no authority to deny the motion on the ground that it is untimely. (Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.) The motion must be accompanied by a supporting affidavit or declaration which establishes the stated grounds for the motion and sets forth the nature and amount of the costs and attorney fees the defendant has incurred and expects to incur until the action is concluded. (C.C.P. § 1030(b).) It must also be accompanied by a memorandum of points and authorities. (C.C.P. § 1030(b), CRC rule 313(a).)

The plaintiff may pursue a number of tactics in opposing a motion for security. These may include:

(1)        proof that the plaintiff is not a nonresident;

(2)        showing the plaintiff's indigency (CCP §995.240); and

(3)        arguing the defendant's failure to make an adequate prima facie showing of a reasonable possibility of success in the action.

A plaintiff can also challenge the amount of the costs and attorney fees requested by the defendant. The security can be ordered only for “reasonable” costs, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision. (C.C.P. § 1030(a).)

Analysis

Defendants Steve S. Kim, M.D. and Steve S. Kim, M.D., PhD., Inc. dba SK Plastic Surgery previously brought a motion to require Plaintiff to post an undertaking pursuant to Code Civ. Proc. § 1030. The Court granted that motion and ordered an undertaking in the amount of $28,849.52, noting Plaintiff’s non-resident status was undisputed by the parties and the moving parties had established a possibility of success. Plaintiff timely filed Cost Bond of Non-Resident Plaintiff on March 24, 2023, demonstrating her compliance with the Court’s prior order.

Plaintiff now faces a similar motion by Defendant. Plaintiff states she is indigent and would be unable to post another surety even if the Court were to grant the instant motion. Plaintiff states she is currently disabled and confined to a wheelchair. (Yeoh Decl. at ¶6.) She states she is currently unemployed and has separated from her spouse. (Ibid.) She attests she is a single mother responsible for caring for a nine-year-old child and is currently receiving governmental assistance in the form of Public Assistance, Supplemental Nutrition Assistance, and Medical Assistance. (Ibid.) She has attached documents demonstrating her enrollment in these programs. (Ex. A to Yeoh Decl.)

Defendant does not dispute Plaintiff’s indigency or inability to post an undertaking, rather Defendant simply states these factors “should not preclude the court from granting” his motion. The Court disagrees. Code Civ. Proc. § 995.240 expressly gives the Court the discretion to waive a provision for a bond in an action if the court determines that the principal is unable to give the bond because the principal is indigent. The party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief. (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 432 (citing Williams v. FreedomCard Inc. (2004) 123 Cal.App.4th 609, 614).) The Alshafie Court concluded there is no rigid standard for the requisite showing of indigency and that it remains within the court’s discretion to determine whether to grant a waiver. (Id. at 434.)

The Court accepts Plaintiff’s uncontested evidence of her indigent status and in the exercise of its discretion waivers any requirement for Plaintiff to post an additional surety pursuant to Code Civ. Proc. § 1030. Defendant’s motion is DENIED.

Conclusion

Defendant’s motion for an undertaking is DENIED.