Judge: Daniel M. Crowley, Case: 22STCV17338, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV17338    Hearing Date: January 27, 2023    Dept: 28

Defendant HG Burbank JV’s Motion for Undertaking

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

BACKGROUND

On May 26, 2022, Plaintiff Armen Kajberouni (“Plaintiff”) filed this action against Defendants Burbank-Glendale-Pasadena Airport Authority (“AA”), City of Burbank (“Burbank”), City of Glendale (“Glendale”), City of Pasadena (“Pasadena”), County of Los Angeles (“County”), California Department of Transportation (“CDT”) and HG Burbank JV (“HG”) for general negligence and premises liability.

On June 21, 2022, AA filed an answer. On August 3, 2022, HG filed an answer.

On December 30, 2022, HG filed a Motion for Undertaking to be heard on January 27, 2023. On January 13, 2023, Plaintiff filed an opposition. On January 20, 2023, HG filed a reply.

Trial is currently set for November 27, 2023.

PARTY’S REQUESTS

HG requests that the Court order Plaintiff to post an undertaking of $61,410.40.

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, HG must prove that Plaintiff resides out of state and that there is a reasonable possibility HG will prevail in the action. Plaintiff resides in Arizona, 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 he sustained injuries when he tripped and fell on defective carpet and floor molding at the subject airport. HG provided an image of the location of the fall, which shows the meeting of a tile and carpet floor: there is a small rubber molding separating the two. (Ex. B.) There are no apparent defects or large changes in elevation. HG alleges that Plaintiff fell as a result of medical conditions and intoxication rather than any defect in the floor. HG cites to the First Aid Report, which listed that Plaintiff had a few alcoholic drinks prior to the incident and has numerous medical issues. (Ex E.) Based on the above, the Court finds that there is a reasonable possibility HG will prevail in the action.

Plaintiff wrongfully asserts that a moving defendant must prove there is no reasonable possibility the out-of-state plaintiff will prevail, citing to Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331. Yao does not actually discuss this standard, instead focusing on whether CCP § 1030 applies to a nonresident cross-complainant. The case on-point is Baltayan, which states a moving defendant must only prove there is a reasonable possibility of the moving defendant prevailing at trial. Plaintiff even wrongfully cites to Baltayan, despite the fact that Baltayan’s Court explicitly holds “[Defendants] were not required to show that there was no possibility that appellant could win at trial, but only that it was reasonably possible that respondents would win. (Code Civ. Proc., § 1030, subd. (b).)” Baltayan at 1432.

Plaintiff then argues that HG fails to meet this burden because it does not provide evidence supported by a declaration, affidavit or request for judicial notice. This is factually incorrect. HG’s moving papers contain a declaration from HG’s attorney, authenticating the relied upon evidence.

Plaintiff makes no arguments as to the actual merits of HG’s argument. Based on the above, the Court finds Plaintiff may be subject to an undertaking.

However, as pointed out in Plaintiff’s opposition, HG provided no proof of actual costs to be incurred or that have already been incurred. This is a requirement for the Court to impose an undertaking on a party. CCP §1030 requires an affidavit explaining the associated costs. A mere list of discovery tasks to be completed is insufficient to justify the Court imposing a bond of $61,410.40. Additionally, Plaintiff provided a declaration stating that Plaintiff is indigent. Plaintiff is paid $16 per hour, working 40 hours per week. He pays approximately half of his net pay to child and spousal support. He currently owes approximately $130,000.00 in child and spousal support, and $55,000.00 to the IRS. There is no indication he would be able to obtain a loan to post the undertaking. The Court finds, regardless of merit, the Plaintiff is indigent and unable to obtain sufficient sureties. The Court denies the motion.

CONCLUSION

Defendant HG Burbank JV’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.