Judge: Erick L. Larsh, Case: 2020-1152717, Date: 2023-05-18 Tentative Ruling

Defendants Howroyd-Wright Employment Agency, Inc. and The Act 1 Group, Inc.’s motion for an order requiring Plaintiff Tamarha Gorman to post an undertaking is DENIED.

“When the plaintiff in an action… resides out of the state…, 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... 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.” (Code Civ. Proc., § 1030, subd. (a).)

“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... 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.” (Code Civ. Proc., § 1030, subd. (b).)

“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, subd. (c).) “The plaintiff shall file the undertaking not later than 30 days after service of the court's order requiring it or within a greater time allowed by the court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff's action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.” (Id., § 1030, subd. (d).)

Defendants are “not required to show that there was no possibility that [the plaintiff] could win at trial, but only that it was reasonably possible that [defendants] would win.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432, emphasis in original.) “Section 1030(b)'s ‘reasonable possibility’ standard ‘is relatively low.’ [Citation.] But it ‘is not so low as to be non-existent.’ [Citation.] [ ] [C]ourts should not ‘read section 1030 so broadly as to require every out-of-state litigant who brings a non-frivolous suit in California to post a bond simply because there is a reasonable chance the defendant may prevail.’ [Citations.]” (Johnson v. Altamirano (S.D. Cal. 2019) 418 F.Supp.3d 530, 564 (Johnson).)

“To satisfy the requirements of section 1030, the Defendant must demonstrate a reasonable possibility of success on each of Plaintiff's claims. [Citations.]. ‘[I]f Defendants do not show a reasonable possibility of defeating even one of Plaintiff's claims, the Court must deny the motion.’ [Citation.]” (Johnson, supra, 418 F.Supp.3d at p. 564.)

A. Resides out of state

Defendants demonstrated that Plaintiff lives out of state. In support, Defendants submitted a declaration from one of their attorneys, Stuart E. Cohen. Cohen stated that, on December 29, 2022, in trying to arrange for Plaintiff to undergo a mental exam with Plaintiff’s counsel, he learned that Plaintiff is now residing in Sparks, Nevada. [Cohen decl., ¶ 2 and Exh. 1] Plaintiff did not file an opposition to dispute Defendants’ evidence that she now lives in Nevada.

B. Reasonable possibility of prevailing

In support of their argument that they have a reasonable possibility of prevailing, Defendants only submitted one declaration. The declaration is from Rick Hagmann. The substance of the declaration largely consists of a meeting on October 9, 2018 with Plaintiff, Hagmann and Runde in which Hagmann described Plaintiff’s unprofessional behavior that warranted termination, and the days afterwards that lead to Plaintiff’s termination. [Hagmann decl., ¶ 5-14] Defendants use Hagmann’s declaration to argue that they had a legitimate business reason for terminating Plaintiff’s employment and therefore, it is reasonably possible that they will prevail on Plaintiff’s claims for age discrimination, retaliation, failure to prevent discrimination/harassment, and wrongful termination.

However, Defendants failed to submit any evidence to show a reasonable possibility of prevailing on Plaintiff’s wage claim. Specifically, the 6th cause of action alleges that Defendants misclassified her as an exempt employee, that she was an administrative employee that performed clerical and administrative tasks more than 50% of the time at work, and that her primary duties did not involve the exercise of discretion and independent judgment with respect to matters of significance. [FAC, ¶ 54-60] Hagmann’s declaration only stated what Plaintiff’s most recent job title was and attached a copy of her job duties. [Hagmann decl., ¶ 3 and Exh. 2]

Defendants argue that they will present evidence at trial that Plaintiff spent more than 50% of her time on exempt duties, that her work was directly and closely related to exempt duties, and that she did exercise discretion and independent judgment on a regular basis.

Without any such evidence presented at this time, Defendants fail to show a reasonable possibility of prevailing on Plaintiff’s wage claim.

Because Defendants did not show a reasonable possibility of obtaining a favorable judgment on all of Plaintiff’s causes of action, the motion for Plaintiff to post an undertaking is DENIED