Judge: Holly J. Fujie, Case: 21STCV18162, Date: 2024-04-12 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.

Case Number: 21STCV18162    Hearing Date: April 12, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTIONS

MOVING PARTY: Defendants Hyundai Motor Company and Hyundai Motor America (collectively, “Hyundai” or “Defendants”)

RESPONDING PARTY: Plaintiffs Nayeli Viridiana Saldaña Canico, Gustavo Alfredo Saldaña Canico, Jorge Uriel Saldaña Canico, and Ismael Saldaña Canico (collectively, “Canico Siblings” or "Plaintiffs")

            The Court has considered the moving, opposition and reply papers.

BACKGROUND

            This action arises out of an alleged automobile accident.  The currently operative second amended complaint (the “SAC”) alleges: (1) negligence; (2) product liability; and (3) wrongful death and survival action.

            On February 28, 2024, Defendants filed the instant action. On March 29, 2024, Plaintiffs filed their opposition. On April 5, 2024, Defendants filed their reply.

DISCUSSION

            Defendants Hyundai move for a court order requiring Plaintiffs to post an undertaking in the amount of $5,000 each for a total undertaking of $20,000 on the grounds that Plaintiffs reside outside of California, there is a reasonable possibility that Defendant will obtain a judgment in its favor, and the requested amount of the undertaking is reasonable. (Not. of Mot. p.1.) Plaintiffs argue that Hyundai failed to make an evidentiary showing that there is a reasonable probability of obtaining a judgment against the Canico Siblings, and the Canico Siblings are indigent. (Opp’n p.9.)

Legal Standard

“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.”  (Code Civ. Proc., § 1030(a).)  The plaintiff, however, will not be required to file an undertaking unless “there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.”  (Id., § 1030(b).)  The motion must be accompanied by an affidavit stating the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur.  (Id.) 

If the motion is granted and 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.  (Code Civ. Proc., §1030(d).)  “The determinations of the court under this section 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.”  (Id., §1030(f).)

Residence of Canico Siblings

            It is undisputed by both parties that Plaintiffs reside in Mexico. (Mem. of P&A p.7; Opp’n p. 8.) Residency in this context means the actual residence rather than domicile at the time the court considers the motion for an undertaking. (Myers v. Carter (1960) 178 Cal.App.2d 622, 626; Enter v. Crutcher (1958) 159 Cal.App.2d Supp. 841, 845. [“A residence is established by personal presence in a fixed and permanent abode, with the intent of remaining there.”].) Therefore, this requirement is satisfied as to each of the Canico Siblings.         

Reasonable Possibility

The Canico Siblings assert three causes of action: (1) negligence; (2) product liability; and (3) wrongful death (CCP § 377.60) and survival action (CCP §§ 377.30 and 377.32). A motion for summary judgment is scheduled to be heard on August 21, 2024.  The Canico Siblings argue that the brakes of the vehicle which was in the alleged accident were defective. Hyundai argues that Hyundai will likely prevail on its motion for summary judgment because the Canico Siblings are unable to show there was a manufacturing defect, a design defect or a warning defect. (Mem. of P&A pp. 8-12.) Alternatively, Hyundai argues that even if the motion for summary judgment fails, they will prevail at trial. (Id. at p.12.) Hyundai offers the following expert declarations in support of the motion: Declaration of Greg Webster; Declaration of Robert Scheibe, Ph.D., P.E.; and Declaration of John D. “Danny” Olivas. The experts found that the subject vehicle demonstrated no abnormalities in its functionality or its component parts and therefore a manufacturing defect did not exist. (Mem. of P&A p.9;Webster Decl. at ¶ 9; Scheibe Decl. at ¶¶ 18,22-23,26; Olivas Decl. at ¶¶ 10-15.)

Expert Robert Schiebe, Ph.D., P.E. also found that there was no design defect because “the evidence establishes that, at the time of the collision, the Subject Vehicle’s brakes were operating as designed and had Cadena applied sufficient force to the brake pedal, the Subject Vehicle would have stopped.” (Scheibe Decl. at ¶ 26.) Hyundai also argues that there is no warning defect because Plaintiffs fail to show that had an adequate warning been provided, the alleged car accident would not have occurred because it is pure speculation that had Co-Defendant Cadena read and understood the warning, he would not have sped at almost 70 miles per hour in a 35 mile per hour zone while under the influence of illegal drugs and alcohol. (Mem. P&A p.11.)

In opposition, the Canico Siblings argue that the arguments of Hyundai are conclusory. (Opp’n p.5.)  The Canico Siblings fail to offer any expert declaration in support of their pedal-droop theory, do not point to any testing or analysis, and do not offer any explanation as to how this supposed defect came to exist, what caused it or how it caused the subject incident because they state that additional discovery is required. (Nunez Decl. ¶ 5.)  The Canico Siblings argue that a continuance was granted for the motion for summary judgment to allow for additional fact and expert discovery necessary to oppose the motion for summary judgment and their opposition is not due until June 21, 2024. (Nunez Decl. ¶ 2.) Additionally, the Canico Siblings argue that Hyundai primarily, and inappropriately, relies on Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907 and Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427 because arbitration had taken place in those cases and is therefore required. The Court disagrees with this position.

The aforementioned cases do not require arbitration, mediation or the proposal of a mediator for Code of Civil Procedure § 1030 to apply. Although both cited cases involved motions in which the moving defendant relied on prior arbitration awards to carry their burden of proving a reasonable possibility of prevailing at trial, neither case articulated a rule that motions for an undertaking may only be granted where there is a prior arbitration award. In Shannon, the Court of Appeal held: “the statutory hearing procedure is the one usually prescribed for pretrial motions, that is, the opportunity to present declarations and other documentary evidence, the opportunity for both counsel to be present, and the opportunity to be heard. (Shannon v. Sims Serv. Ctr. (1985) 164 Cal.App.3d 907, 913.) (emphasis added.) In Baltayan, the Court of Appeal stated: “[g]iven the fact of the arbitration award, as well as the evidence submitted in support of each side's position, the trial court properly found that there was a reasonable possibility that respondents would win at trial. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1433.) (emphasis added.)

“[Defendants] [are] not required to show that there was no possibility that [plaintiffs] 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.)  Hyundai has shown that there is a reasonable possibility that it may win at trial.

Amount Requested is Reasonable

Hyundai seeks an undertaking in the amount of $5,000 per Canico Sibling for a total undertaking of $20,000. Here, this amount is reasonable considering the nature and amount of the costs that Hyundai has incurred to date, including the substantial expert fees that Hyundai has incurred since February 2023 when it served 998 offers to compromise on each of the Canico Siblings that they ultimately rejected. (Code Civ. Proc., § 1030, subd. (b).)

Indigency of Plaintiffs

Even if Defendant establishes the grounds for an undertaking, the trial court may waive the requirement if Plaintiffs establish indigency.¿(Alshafie v. Lallande (2009) 171 Cal. App. 4th 421, 429.) ¿CCP section 995.240 states that “[t]he court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers.”¿ (Code Civ. Proc., § 995.240.) ¿“In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.” (Id.) 

In opposition, Plaintiffs argue that they do not have the money to file an undertaking. (Opposition, pp.7-8.) In support, one of the siblings, Nayeli Viridiana Saldaña Canico, offered her own declaration on behalf of herself and her siblings. She declares that she is responsible for all of the household’s finances and their combined weekly income is 5,800 MXN pesos. (Canico Decl. ¶¶ 2-7.) She avers that they do not have the money to pay for the undertaking. (Canico Decl. ¶¶ 7-9.) She also states that they do not own any real property, nor any type of vehicle . . . any significant jewelry, furniture, stocks or bonds that can be used as collateral . . . significant savings [and] . . . did not inherit anything from [their] mother when she died. (Canico Decl. ¶¶ 8-9. )To the extent that Plaintiffs are trying to argue that they are indigent for the purposes of not paying the undertaking, this declaration is insufficient because the declaration does not meet the Code of Civil Procedure  §2015.5 requirements and therefore cannot be relied on. For instance, the declaration states “Executed on this 29th day of March, 2024 at Mexico City, Mexico” rather than “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” 

The Court therefore continues the hearing to allow the Canico Siblings to file amended declarations with the necessary language by April 22, 2024.  If such declarations are not filed by that date, the Court will GRANT the motion at the time of the continued hearing.

            Moving party is ordered to give notice of this ruling.

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.

   Dated this 12^th day of April 2024