Judge: Helen Zukin, Case: 21STCV41226, Date: 2023-03-06 Tentative Ruling
Case Number: 21STCV41226 Hearing Date: March 6, 2023 Dept: 207
Background
Plaintiff A.T. (“Plaintiff”) brings this action against
Defendants Le Lycee Francais De Los Angeles (“Defendant”) and others based on
childhood sexual abuse. Plaintiff alleges she was abused by one of Defendant’s
employees while she was a student at Defendant’s school. Plaintiff’s operative
First Amended Complaint, filed March 29, 2022, asserts causes of action for
negligence, intentional infliction of emotional distress, and childhood sexual
assault. Defendant brings this motion under Code Civ. Proc. § 1030 to require
Plaintiff to post security as a nonresident plaintiff currently residing in New
Jersey. 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).)
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. (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 Defendant has made a prima facie showing of a reasonable
possibility of success in the action. The Court finds Defendant has failed to
carry this burden.
To prevail on a motion for
non-resident undertaking, a moving defendant must provide an affidavit or
declaration establishing the defendant has a reasonable possibility of
obtaining a favorable judgment at trial. (C.C.P. § 1030(b) [“The motion
shall be accompanied by an affidavit in support of the grounds for the motion”].)
The only evidence or affidavit submitted by Defendant is a declaration from
counsel which characterizes Plaintiff’s discovery responses as inadequate and
lacking in proof. Defendant does not attach its discovery requests or
Plaintiff’s responses, nor does Defendant quote from these requests or
responses. Thus, the only evidence as to Defendant’s reasonable possibility of
prevailing are counsel’s unsupported assertions that Plaintiff has
“demonstrated reluctance to participate in good faith in discovery” and “will
not be able to support her allegations with admissible evidence.” (Szabo Decl.
at ¶¶6, 15.) These conclusory characterizations of Plaintiff’s discovery
responses, standing alone, are insufficient to carry Defendant’s burden in
moving to require an undertaking from Plaintiff.
Defendant also points to
Plaintiff’s operative First Amended Complaint as being “extremely vague as to
facts supporting [Plaintiff]’s causes of action.” (Motion at 3.) However, the
general rule is that the plaintiff need only allege ultimate facts in a
complaint, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42
Cal.4th 531, 550.) This asserted lack of evidentiary facts in Plaintiff’s First
Amended Complaint has no bearing on whether Defendant has established a
reasonable possibility of success on Plaintiff’s claims.
Defendant’s motion is premised on
Plaintiff’s alleged inability to support her case with admissible evidence.
However, Defendant has not demonstrated such an inability in its moving papers,
and Defendant has not put forward any affirmative evidence suggesting
Plaintiff’s claims are meritless. Defendant has thus failed to carry its burden
of establishing a reasonable possibility of obtaining judgment on Plaintiff’s
claims, and its motion to require Plaintiff to file an undertaking is thus
DENIED.
The Court also notes Defendant
filed a Notice of Stay concurrently with its motion on September 1, 2022. This
notice purported to stay the case pending resolution of Defendant’s motion to
stay. This notice is null and void. Section 1030(e) governs the process for
staying an action pending resolution of a motion for undertaking. It provides
in pertinent part:
If the
defendant’s motion for an order requiring an undertaking is filed not later
than 30 days after service of summons on the defendant, further proceedings may
be stayed in the discretion of the court upon application to the court by the
defendant by noticed motion for the stay….
(C.C.P. § 1030(e).) Thus a stay
under section 1030(e) has two prerequisites: (1) the defendant’s motion must be
filed no later than 30 days after service of the summons on the moving
defendant, and (2) the defendant must file a noticed motion requesting such a
stay. Defendant has not satisfied either requirement here.
Defendant was served with the
original summons in this action on December 3, 2021, and Defendant was served
with the First Amended Complaint on March 29, 2022. Defendant’s motion was
filed on September 1, 2022, nearly five month later and well after the 30-day
period set forth in section 1030(e) had expired. Defendant also never filed a
noticed motion to stay the action, but rather simply declared the action stayed
by the filing of the motion for an undertaking. Nothing in section 1030
authorizes a moving defendant to unilaterally declare the action is stayed
pending resolution of a motion for and undertaking. Defendant’s September 1,
2022, notice is thus void and of no effect.
Conclusion
Defendant’s motion for an undertaking is DENIED.