Judge Jill Feeney, Case 20STCV01314 2023-02-16 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV01314, Date: 2023-02-16 Tentative Ruling

Case Number: 20STCV01314 Hearing Date: February 16, 2023 Dept: 30

Department 30, Spring Street Courthouse

February 16, 2023

20STCV01314

Motion to Compel Undertaking filed by Defendant Hollywood Chamber of Commerce

DECISION

The motion is granted.

An undertaking in the amount of $52,250 must be posted within 30 days.

The Court sets an OSC for March 30, 2023 at 8:30 a.m. Re: Status / Proof of Posting of Undertaking.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for negligence, premises liability, and a dangerous condition of public property arising from a trip and fall incident that took place in July 2019. Plaintiff Anna Nguyen filed her Complaint against the City of Los Angeles, the County of Los Angeles, the Hollywood Chamber of Commerce, and the Hollywood Historic Trust on January 10, 2020.

On January 20, 2023, Defendant the Hollywood Chamber of Commerce (“HCC”) filed the instant motion to compel undertaking.

Summary

Moving Arguments

Defendant HCC moves to compel Plaintiff to pay an undertaking of $52,250 on the grounds that Plaintiff resides out of California, specifically in Florida, and that HCC has a reasonable possibility of obtaining judgment in its favor. HCC argues that there is a reasonable possibility that it will prevail against Plaintiff’s claims because Plaintiff has refused to cooperate in litigation and because Plaintiff has no evidence of HCC’s liability in this matter.

Opposing Arguments

None.

Legal Standard

Where a plaintiff in an action resides out of the state, the defendant may, at any time, apply to the court 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. (Code Civ. Proc., § 1030, subd. (a).) The motion shall be made on grounds that the plaintiff resides out of the state and there is a reasonable possibility that the moving defendant will obtain judgment in their favor. (Id., subd. (b).) The motion shall be accompanied by an affidavit in support of the grounds for the motion and setting forth the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. (Id., subd. (b).) “The purpose of [Code of Civil Procedure section 1030] is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428.)

The moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial. Rather, the moving party is required to show only that it was reasonably possible that they would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the court’s order requiring it, and if plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action shall be dismissed as to the moving defendant. (Code Civ. Proc., § 1030, subd. (d).)

Discussion

HCC provides a breakdown of anticipates expenses of $52,250 and seeks to compel Plaintiff to post an undertaking in that amount. (Poli Decl., ¶11.)

Out of State

HCC’s Counsel testifies that during discovery, Plaintiff revealed in her Form Interrogatories that she now resides in Florida. (Poli Decl., ¶8.)

HCC satisfies this element.

Defendant’s Reasonable Possibility of Obtaining Judgment in its Favor

Defendant states it has a reasonable possibility of obtaining judgment in its favor because Plaintiff has refused to participate in litigation and has no evidence of HCC’s liability.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

Here, HCC alleges that it is not in possession of any documents establishing that it had a duty to inspect the sidewalk at issue or that HCC’s conduct caused her fall. (Motion, p.8.) Plaintiff has not produced any evidence of HCC’s liability and failed to produce substantive responses to HCC’s discovery requests. (Poli Decl., ¶7.)

HCC’s evidence shows that there is no discovery showing HCC had a duty to inspect the sidewalk or that HCC’s conduct caused Plaintiff’s fall. Therefore, there is a reasonable possibility that HCC will prevail against Plaintiff’s claims for negligence and premises liability.

HCC’s evidence shows that there is a reasonable probability that it will obtain judgment in its favor. Plaintiff has not opposed this motion.