Judge: Daniel M. Crowley, Case: 21STCV14457, Date: 2023-03-14 Tentative Ruling

Case Number: 21STCV14457    Hearing Date: March 14, 2023    Dept: 28

Defendant SBE Restaurant Group, LLC’s Motion for Undertaking

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

BACKGROUND

On April 16, 2021, Plaintiff Polina Kourotchkina (“Plaintiff”) filed this action against Defendant SBE Restaurant Group, LLC (“Defendant”) for premises liability.

On June 18, 2021, Defendant filed an answer.

On February 7, 2023, Defendant filed a Motion for Undertaking to be heard on March 14, 2023. On March 2, 2023, Plaintiff filed an opposition. On March 7, 2023, Defendant filed a reply.

Trial is currently set for June 7, 2023.

PARTY’S REQUESTS

Defendant requests that the Court order Plaintiff to post an undertaking of $34,951.80 to secure an award of costs and fees.

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

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. Plaintiff alleges that she slipped and fell on a slippery surface on Defendant’s premises.

Defendant argues that Plaintiff did not slip, but rather fell because her shoes were insecure. At the time of the incident, Plaintiff was wearing 4-inch platform wedge shoes, with only straps securing her feet. Defendant's employee testified that Plaintiff’s “heel buckled,” resulting in her falling. Another employee testified that Plaintiff told him she “got brand new cork shoes and the straps weren’t fitting right...[that] these new shoes...keep on making [her] trip.” One of Plaintiff’s friends allegedly stated that Plaintiff was drunk, resulting in her fall. Additionally, multiple of Defendant’s employees testified that the floors were cleaned regularly and that they had a system in place to deal with liquid spills—they also stated there was no liquid at the time of the incident.

However, Plaintiff was a minor at the time of the incident; under Business and Professions Code § 25602, a cause of action may be brought on behalf of any minor against any person/business that furnishes alcohol to said minor if that alcohol is the proximate cause of injury sustained by that person and the minor appears to be obviously intoxicated. Defendant claims that Plaintiff had only 1.5 drinks at the time of the incident, that she had a high alcohol tolerance, and that she did not feel alcohol impaired her at the time of the incident. The Court notes that Defendant earlier stated that Plaintiff’s friend told employees that Plaintiff was drunk, which was the cause of the injury.

Plaintiff’s reply addresses the merits of Defendant’s argument. Plaintiff notes that one of Defendant’s employee testified that Plaintiff appeared heavily intoxicated, and two testified it is frequent for guests to fall on the premises. Defendant indicated in Defendant’s discovery responses that they did not maintain sweep sheets or inspections logs, both of which are potentially important evidence going towards Defendant’s knowledge of an allegedly dangerous condition. Additionally, Defendant’s employee testified the club has security cameras, and it is Defendant’s protocol to preserve video any time an injury results in the generation of an incident report; another employee testified an incident report was produced following this incident, but Defendant has stated it does not have a copy of said incident report or any security footage.

Based on the above, the Court does not find that there is a reasonable possibility of Defendant prevailing at trial. Defendant’s witnesses contradict each other and provide very different accounts of what happened. Defendant has security cameras and allegedly wrote an incident report but has neither said report or any footage of what happened. Multiple witnesses have alleged that the minor Plaintiff was visibly intoxicated. There are no inspection or cleaning records to provide a basis for Defendant keeping the premises safe. Overall, the evidence does not support a finding of a reasonable possibility of prevailing at trial.

Additionally, Plaintiff notes that while not indigent, she is a resident of the Russian Federation. Financial Institutions in the Russian Federation are under sanctions in the United States, putting Plaintiff in the untenable position of having to potentially violate sanction laws in order to post bonds. The Court finds this is further good cause not to impose an undertaking.

Based on the above, the Court denies the motion.

CONCLUSION

Defendant SBE Restaurant Group, 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.