Judge: Elaine W. Mandel, Case: 23SMCV05447, Date: 2024-05-16 Tentative Ruling

Case Number: 23SMCV05447    Hearing Date: May 16, 2024    Dept: P

Tentative Ruling

Epstein v. Munoz, et al. Case No. 23SMCV05447

Hearing Date: May 16, 2024

Defendants’ Motion for Undertaking

Plaintiff sustained serious injuries while go-karting at defendants’ property when she was 12 years old. Defendants seek an order requiring plaintiff to post an undertaking of $56,000 under CCP §1030 on the grounds that plaintiff resides outside of California and defendants present a reasonable possibility they will prevail.

“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.” Code Civ. Proc. §1030(a). Plaintiff will not be required to file an undertaking unless “there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.” Id., §1030(b). The motion must be accompanied by an affidavit stating the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. Id. 

If the motion is granted and plaintiff fails to file the undertaking, the action shall be dismissed. Code Civ. Proc. §1030(d). “The determinations of the court under this section have no effect on the determination of any issues on the merits of the action or special proceeding and may not be given in evidence nor referred to in the trial of the action or proceeding.” Id., §1030(f).

Per plaintiff’s responses to form interrogatories, set one, she lives in London, United Kingdom. Safarian Decl., Exh. C at 3:12.

Defendants argue they present a reasonable possibility they will prevail because they were not negligent in supervising the then-12-year-old plaintiff and maintaining a safe driveway. Defendants argue the negligence claim is barred under the primary rights doctrine and the 12-year-old plaintiff should have been aware of the risk of colliding with a gate while riding the go-kart downhill. Defendants argue they did not increase the inherent risks of go-karting downhill by failing to inform plaintiff about the open and obvious condition of the driveway slope. Defendants state that they did not represent their driveway was a safe place for scootering. Defendants cross-complained against plaintiff’s mother, who was present, and contend the mother should have been supervising plaintiff.

In opposition, plaintiff contends defendants have not presented evidence of a reasonable possibility that they will obtain judgment in their favor. The court agrees. There is no evidence provided, only argument.

Granting an undertaking is discretionary. Code Civ. Proc. §1030(d). Defendants fail to establish sufficient evidence of a reasonable probability of prevailing. DENIED.

Plaintiff’s request for sanctions is DENIED, as plaintiff did not provide the opportunity to withdraw the motion under the 21-day safe harbor period before seeking sanctions. Code Civ. Proc. §128.45(f)(1)(B).