Judge Holly J. Fujie, Case 18STCV00236 2022-08-16 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This action arises out of alleged wrongdoing that occurred while Plaintiff was a patron at a nightclub. The currently operative third amended complaint (the “TAC”) alleges: (1) battery; (2) assault; (3) false imprisonment; (4) negligence; (5) negligent supervision; and (6) premises liability.

Moving Defendant filed a motion to compel Plaintiff to file an undertaking (the “Motion”) on the grounds that Plaintiff resides out-of-state and there is a reasonable possibility that Moving Defendant will obtain judgment in this action.

Moving Defendant’s objection to the Declaration of Scarlett Benchley (“Benchley Decl,”) is OVERRULED.

California Code of Civil Procedure (“CCP”) section 1030, subdivision (a) provides that 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. (CCP § 1030, subd. (a).) 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. (CCP § 1030, subd. (b).) The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. (Id.) 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. (Id.)

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. (CCP § 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. (CCP § 1030, subd. (d).) 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.)

The determinations of the court in considering a motion to compel an undertaking 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. (CCP § 1030, subd. (f).) A defendant is not required to show there is no possibility the plaintiff will prevail at the trial, but only that there is a reasonable possibility that the defendant will win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

Moving Defendant presents evidence that Plaintiff currently resides in Montana. (Declaration of Nicholas T. Koumoulis (“Koumoulis Decl.”) ¶ 5, Exhibit D.) Moving Defendant also presents evidence that the nightclub security guards who Plaintiff alleges used unlawful force against her were acting in self-defense. (See Koumoulis Decl. ¶¶ 6-8, Exhibits E-G.) Moving Defendant has incurred approximately $70,377.50 in attorney’s fees and $17,601.85 in costs. (Koumoulis Decl. ¶ 10.)

The Court finds that Moving Defendant has not satisfied its burden to demonstrate the need for Plaintiff to file an undertaking. First, the Motion does not identify a proper basis for an award of attorney’s fees. Second, while the Motion demonstrates that Plaintiff lives out-of-state and that there is a reasonable possibility that Moving Defendant may prevail on Plaintiff’s battery claim, Moving Defendant’s evidence does not dispose of the remainder of the causes of action alleged in the TAC.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court