Judge: Helen Zukin, Case: 21STCV07757, Date: 2023-02-21 Tentative Ruling

Case Number: 21STCV07757    Hearing Date: February 21, 2023    Dept: 207

Background

Plaintiff Soo Kam Yeoh (“Plaintiff”) brings this action for medical negligence against Defendants Steve S. Kim, M.D. (“Dr. Kim”) and Steve S. Kim, M.D., PhD., Inc. dba SK Plastic Surgery (collectively with Dr. Kim, “Defendants”) and others stemming from complications in a cosmetic surgical procedure performed by Defendants. Defendant brings this motion under Code Civ. Proc. § 1030 to require Plaintiff to post security as a nonresident plaintiff. Plaintiff opposes the motion.

Legal Standard

In an action brought by a nonresident plaintiff, the defendant may at any time move for an order requiring the plaintiff to post security. (C.C.P. § 1030(a).) The stated grounds for the motion are that the plaintiff resides out of state or is a foreign corporation, and there is a reasonable possibility that the moving defendant will obtain a favorable judgment. (C.C.P. § 1030(b).) The motion can be brought at any time. (C.C.P. § 1030(a).) The trial court has no authority to deny the motion on the ground that it is untimely. (Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.) The motion must be accompanied by a supporting affidavit or declaration which establishes the stated grounds for the motion and sets forth the nature and amount of the costs and attorney fees the defendant has incurred and expects to incur until the action is concluded. (C.C.P. § 1030(b).) It must also be accompanied by a memorandum of points and authorities. (C.C.P. § 1030(b), CRC rule 313(a).)

The plaintiff may pursue a number of tactics in opposing a motion for security. These may include:

(1)        proof that the plaintiff is not a nonresident;

(2)        showing the plaintiff's indigency (CCP §995.240); and

(3)        arguing the defendant's failure to make an adequate prima facie showing of a reasonable possibility of success in the action.

A plaintiff can also challenge the amount of the costs and attorney fees requested by the defendant. The security can be ordered only for “reasonable” costs, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision. (C.C.P. § 1030(a).)

To succeed on its motion, a defendant is not required to show there is no possibility the plaintiff can win at trial, or that it is reasonably likely that the defendant will prevail, only that it is reasonably possible that the defendant will win. The court must determine whether there is substantial evidence to support such a determination. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432-33.)

Analysis

Plaintiff’s non-resident status is undisputed by the parties. The principle issue raised by the parties’ briefing concerns whether Defendants have made a prima facie showing of a reasonable possibility of success in the action. A review of the parties’ submission shows Defendants have made such a showing.

Plaintiff’s claims against Defendants appear to turn on whether Defendants can be held liable for the action of Defendant Julian Chua, M.D. (“Dr. Chua”). Plaintiff asserts Defendants may be held liable for Dr. Chua’s actions under theories of ostensible agency and the “captain of the ship” doctrine. However, as Defendants point out, Plaintiff’s success on these theories will turn on factual questions regarding Defendants’ ability to exercise control over Dr. Chua, and the particular circumstances and statements of Plaintiff’s dealings with Dr. Chua and Dr. Kim. Defendants have submitted evidence in the form of Dr. Kim’s declaration which indicates the evidence is in dispute on this point. The Court offers no opinion as to whether Plaintiff will ultimately prevail on these theories at trial, however the Court finds there is a reasonable possibility the jury could credit the evidence submitted in the declaration of Dr. Kim over the evidence submitted by Plaintiff and find for Defendants on Plaintiff’s causes of action.

Defendants seeks an undertaking in the total amount of $89,849.52. Defendants represent this figure is an approximation of the costs Defendants may be awarded pursuant to Code Civ. Proc. §§ 998 and 1033. (Motion at 9-11) Included in Defendants’ calculations is $60,000 in expert fees for three unidentified experts Defendants anticipate retaining in this litigation. (Id. at ¶10.) While Defendants may reasonably anticipate retaining these experts, Code Civ. Proc. § 1033.5(b)(1) expressly identifies “Fees of experts not ordered by the court” as one of the categories which “are not allowable as costs, except when expressly authorized by law.” Defendants represent they have served Plaintiff with an offer to compromise under C.C.P. § 998, and the Court may ultimately award Defendants their reasonable expert fees if Plaintiff fails to beat the section 998 offer at trial. However, the award of expert costs under section 998 depends on findings of reasonableness of the expenses and the good faith of the offer. Such questions are not before the Court at this time, and the Court in its discretion therefore reduces the amount of the undertaking by $60,000.

Defendants’ motion is GRANTED, and Plaintiff is ordered to post bond in the amount of $28,849.52 within thirty days or risk dismissal of this action.

Conclusion

Defendants’ motion for an undertaking is GRANTED in the amount of $28,849.52.