Judge: H. Jay Ford, III, Case: 23SMCV03597, Date: 2024-04-18 Tentative Ruling

Case Number: 23SMCV03597    Hearing Date: April 18, 2024    Dept: O

  Case Name:  Scott v. Sands, D.D.S

SUBJECT:                 MOTION FOR UNDERTAKING

MOVING PARTY:   Defendant Kevin Sands, D.D.S

RESP. PARTY:         Plaintiff Sara Scott

TENTATIVE RULING

            Defendant Kevin Sands, D.D.S.’s Motion for Undertaking pursuant to CCP § 1030 is GRANTED. Plaintiff is ordered to post a bond for $__________________ [to be determined at the hearing]. Defendant establishes that Plaintiff resides out of state. Defendant established that he has a reasonable possibility of prevailing on the claims through expert declarations.

            CCP §1030(a) states “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.” (Code Civ. Pro. § 1030, subd. (a).)

            CCP §1030(b) states “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.” (Code Civ. Pro. § 1030, subd. (b).)

            “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.” (See Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The moving defendant is not required to show that the out-of-state plaintiff has no possibility of prevailing, but only that moving defendant has a “reasonable possibility” of prevailing. (Id. at 1432 [finding that moving defendants' sufficiently sustained their burden by directing court to arbitrator's award and police report]; Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 [reasonable probability of prevailing established by prior arbitration award in defendant’s favor on plaintiff’s claims].)

            “Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)

            It is undisputed that Plaintiff Sara Scott (“Scott”) is not a resident of California. (See De Heras Decl., ¶¶ 2, 3, Ex. B “Plaintiff RFA Responses” No. 2, C “Plaintiff FROG Responses No. 2.5.)

            Defendant Kevin Sands, D.D.S (“Sands”) provides an admissible expert declaration from Mark Exler, D.D.S, a licensed dentist in the state of California, and a “Diplomate of the American Board of Prosthodontics.” stating that Sands met the applicable standard of care in the treatment of Scott, thus demonstrating there is a reasonable possibility Sands will prevail on the action. (See Motjon, Ex. D, Exler Decl., ¶¶ 1–2, 5, 6.) Mark Exler D.D.S specifically declares:

5. I have reviewed Dr. Sands’ dental records and radiology for patient Sara Scott. I relied on these materials as well as my education, training and experience in forming my opinions.

6. Based on my review of the available materials, I found no evidence that the restorative treatment performed by Dr. Sands for Ms. Scott was performed below the standard of care or caused her harm based on a reasonable medical probability.

(Ibid.)

            Scott submits expert testimony to refute Sands expert testimony but Scott’s expert testimony does not show that there is no reasonable possibility that Scott will prevail on the claims. (See Code Civ. Pro. § 1030; see also Baltayan, supra, 90 Cal.App.4th at p.1430 [“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”.)  The Court finds that Sands expert testimony is enough to reach a reasonable possibility that he will prevail on the action through negating the negligence element of duty or standard of care.

            Sands submits an affidavit stating the nature and amount of reasonable attorney’s fees, and expert costs Sands has incurred and expects to incur pursuant to CCP § 1030(b), totaling $33,095.00. Specifically, Sands declares the following costs:

First Appearance Fee - incurred cost $435.00

Motion for Summary Judgment - projected cost $500.00

Motion for Undertaking Fee - projected cost $60.00

Deposition of Plaintiff - projected cost $3,500.00

Deposition of Sands - projected cost $3,500.00

Deposition of Expert - projected cost $3,500.00

Expert Witness Fees - projected cost $15,000.00

Jury Fees - two week trial, one half cost – projected cost $1,750.00

Court Reporting Fees - two week trial, one half - projected cost $3,850.00

Trial Exhibits and Blow Ups - projected cost $1,000.00

Total $33,095.00

(Motion, p. 6, De Heras Decl., ¶ 5.)

            Scott argues in the alternative that the $15,000 in expert witness fees, and the $3500 for deposition costs requested by Sands is excessive and the total award should be lowered to $15,000.  Sands argues that pursuant to CCP § 1032 and 1033.5(8) the prevailing party is entitled as matter of right to the opposing party’s costs of the suit and payment of expert fees is up to the discretion of the Court. The Court finds that the estimated fees in the amount of ____________________ are reasonable.

            Thus, Defendant Sands’ Motion for Undertaking is GRANTED.