Judge Elaine W. Mandel, Case Number: 22SMCV01853, Date: 2025-02-13 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01853, Date: 2025-02-13 Tentative Ruling

Case Number: 22SMCV01853 Hearing Date: February 13, 2025 Dept: P

Tentative Ruling

Von Neitsch v. Naysan, Case no. 22SMCV01853

Hearing date February 13, 2025

Defendant’s Motion for Order Requiring Plaintiff to Post Security Bond

Plaintiff’s Motion for Order Requiring Defendant to Post Bond

Plaintiff Von Neitsch, in pro per, sues defendants Bedford Dental Group and Dr Naysan for medical malpractice arising from dental work. Defendants move for an order requiring plaintiff to post a security bond for costs of $50,717 pursuant to Cal. Code Civ. Proc. §1030. Defendants request $50,717.36 based on costs/fees already incurred ($17,081.69 - Decl. Kamel para. 5) and anticipated expenses ($33,635.67 - Decl. Kamel para. 6, based on counsel’s experience plus the provided breakdown of expenses). Plaintiff moves for an order requiring defendants to post bond totaling $3,368,645 “pursuant to the court’s inherent equitable powers.”

Defendant’s Motion for Order Requiring Plaintiff to Post Security Bond

The court has the authority to impose a bond requirement under Cal. Code Civ. Proc. §1030, which states that when plaintiff resides out of state, defendant may apply for an order requiring plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action. Such undertaking includes “reasonable attorney’s fees a party may be authorized to recover by a statute apart” from §1030. Cal. Code Civ. Proc. §1030(a). A defendant’s motion must also be made on the grounds that there is a reasonable possibility moving defendant will obtain judgment. Cal. Code Civ. Proc. §1030(b).

Plaintiff resided in Texas. Decl. Kamel para. 13; exh. B. Plaintiff filed a Notice of Change of Address stating her current address is at 15657 N. Hayden Rd., #1054, Scottsdale, AZ 85260. Decl. Kamel para. 14; exh. C.

Plaintiff argues she possesses California identification cards, owns and operates a California business and maintains a California bank account, demonstrating California residency. See generally Decl. Von Neitsch. Defendants argue §1030 does not address legal residency, but rather where a plaintiff physically resides. Defendants argue plaintiff offers no current California address and fails to disclose her location in her declaration. Section §1030 states “when the plaintiff in an action resides out of state;” this is interpreted to mean a plaintiff’s physical location. Plaintiff does not offer a California address; she is not a California resident for purposes of this motion.

For a bond to be required, defendants must show it is “reasonably possible” they will prevail at trial. Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.

Plaintiff alleges breach of contract and negligence. For plaintiff to prevail on her negligence claim, she must prove that defendants failed to use the skill, prudence, and diligence as other members of his profession, causation and damages. See Hanson v. Grode (1999) 76 Cal.App.4th 601, 606. Plaintiff must also prove that defendant(s)’ conduct fell below the standard of care and that, to a reasonable degree of medical certainty, defendant caused the alleged injuries; such typically requires expert testimony. See Landeros v. Flood (1976) 17 Cal. 3d 399, 408.

Prosthodontist Hewlett declared defendants’ treatment met the applicable standard of care. Decl. Hewlett para. 13. Defendants engaged in pre-treatment photos and examinations of plaintiff, obtained consent, advised plaintiff of potential complications and made adjustments to comply with plaintiff’s treatment goals. Id. Medical malpractice and its requisite duty of care turns on expert opinions; defendants offered evidence that it is reasonably possible for them to succeed at trial. Baltayan, supra.

GRANTED; plaintiff is to post a security bond in the amount of $50,717 pursuant to Cal. Code Civ. Proc. §1030.

Plaintiff’s Motion for Order Requiring Defendant to Post Bond

Plaintiff moves for an order requiring defendants to post of $3,368,645, the amount she seeks. Plaintiff argues defendants’ financial condition poses a substantial risk of nonpayment. Plaintiff makes her motion pursuant to Cal. Code Civ. Proc. §1030 and the court’s “inherent powers.” Section1030 offers no authority to require the posting of such a bond. Further, the court’s “inherent powers” neither authorize nor justify requiring defendants to post a bond. DENIED.