Judge: Daniel S. Murphy, Case: 24STCV01968, Date: 2025-05-14 Tentative Ruling

Case Number: 24STCV01968    Hearing Date: May 14, 2025    Dept: 32

BACKGROUND

            Plaintiff Winston Brown (“Plaintiff”) filed this action against defendant Filecia Lyttle (“Defendant”) on January 25, 2024, asserting claims for breach of fiduciary duty and unjust enrichment. Plaintiff alleges he and Defendant shared a child, Jahson Brown, who died in an accident in Los Angeles in January 2019. (Compl., ¶ 2.) Defendant filed a wrongful death action against one or more defendants she alleged caused Jahson’s death (“the Wrongful Death Action”). (Id., ¶ 4.) Defendant “intentionally omitted including Plaintiff as a party to the Wrongful Death [A]ction”. (Id., ¶ 5.) In August 2022, the Wrongful Death Action settled. (Id., ¶ 6.) Plaintiff sues to recover a portion of the settlement.

            On April 15, 2025, Defendant moved to require Plaintiff to post an undertaking of $77,000.00. Plaintiff filed an on May 12, 2025, and Defendant filed a reply on May 13, 2025.

LEGAL STANDARD

“Code of Civil Procedure section 1030 provides that upon a defendant's motion, the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney's fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The section reads:

“(a)      When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the 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 and attorney’s fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney’s fees” means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract. 

(b)       The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion 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 and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding. 

(c)        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 and attorney’s fees. “

(Code Civ. Proc., § 1030.)

            “The purpose of [section 1030] is to enable a California resident sued by an out-of-state resident ‘ “to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court's jurisdiction.” ’ . . . The statute therefore acts to prevent out-of-state residents from filing frivolous lawsuits against California residents. . . . ” (Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331, internal citations omitted.)

            A defendant proposing the imposition of an undertaking bears the burden to demonstrate grounds for the undertaking, namely (1) the plaintiff’s nonresidency and (2) a reasonable possibility that the defendant will obtain judgment in its favor. (See Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914; see also .)

EVIDENTIARY MATTERS

            Defendant requests judicial notice of four records from the Wrongful Death Action. Her requests are granted in their entirety.

            Defendant’s objections are overruled.

DISCUSSION

The parties filed a stipulation on March 3, 2025, in which Plaintiff acknowledged he lives in Jamaica. (03-03-2025 Stip., 1:23.) He is a nonresident plaintiff subject to section 1030.

The declaration of Defendant’s counsel and the noticed materials demonstrate a reasonable possibility that Defendant will prevail by showing that her counsel (1) named Plaintiff as a nominal plaintiff in the Wrongful Death Action, (2) conferred with him about it, (3) facilitated his service with process in that case, and (4) suggested he retain his own counsel. (See Seck Decl., ¶¶ 4-11, D.RJN Exhs. A-D.)

Plaintiff has failed to establish that he is indigent.  Plaintiff earns $2,500 per month.  While Plaintiff does not own property in the United States, Plaintiff is silent as to property owned in Jamaica  or other countries.  Lastly, Plaintiff was recently in possession of  $100,000.

An undertaking is warranted.

However, Defendant’s calculation of her expected costs is slightly excessive. Her counsel speculates that she “may require expert witnesses to address the issues from the underlying Wrongful Death Action, a standard of care expert, an ethics expert, and experts to opine on Mr. Brown’s alleged damages”. (Alcumbrac Decl., ¶ 1.) The Court disagrees that a standard of care expert and an ethics expert would be separately necessary, or that a great deal of expertise would be required to re-litigate matters from the Wrongful Death Action. The Court therefore orders a reduced posting.

CONCLUSION

            The Court GRANTS Defendants’ motion in part. Defendant is ordered to post an undertaking of $05,000.00 within 30 days of this order, or Defendant may apply ex parte for dismissal with prejudice.