Judge Jill Feeney, Case 20STCV01314 2023-03-23 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

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.

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.

Plaintiff argues that HCC failed to offer evidence that there is a reasonable possibility that it will prevail in this action. Plaintiff alleges that HCC failed to submit a declaration from its employees stating it had no notice of a dangerous condition. Additionally, Plaintiff argues that there is no evidence that establishes when HCC inspected the subject area. Plaintiff also alleges that her safety expert will be able to testify that a dangerous condition existed long enough for HCC to have had notice on the subject sidewalk for at least a decade. Finally, Plaintiff argues that HCC failed to provide a detailed estimate of costs for which an undertaking is requested.

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).)

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.

Plaintiff’s opposition was filed late on February 16, 2023, the original hearing date on this motion. Plaintiff offers the declaration of paralegal Marina C. Ventura, who testifies that she made an error calendaring the hearing on this motion and caused Plaintiff’s counsel to file the opposition late. (Ventura Decl., ¶4.) The Court will consider Plaintiff’s opposition.

The only evidence Plaintiff offers in support of her opposition is a screenshot of a Google Maps image of the subject sidewalk. (Opp., Exh. A.) Plaintiff’s counsel, Jason Smith, testifies that there is a dangerous condition captured in the image, which dates back to February 2011. (Smith Decl., ¶2.) However, the image is not properly authenticated because Smith does not have personal knowledge of the subject sidewalk and its condition in 2011. Smith’s declaration does not meet the requirements of Evid. Code, section 1400 which provides that evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.

On the other hand, HCC provides evidence that Plaintiff responded to Item 17.1 of HCC’s request for Form Interrogatories with legal conclusions, including that HCC knew or should have known of the alleged dangerous condition and that HCC’s employees failed to inspect and maintain the subject sidewalk. (Motion, pdf p.63.) Item 17.1 required Plaintiff to set forth the facts, witnesses, and documents that support each of her denials to HCC’s requests for admissions. (Id., pdf p. 30.) Plaintiff denied admitting that HCC was not liable for premises liability in her responses to HCC’s requests for admissions. (Id., pdf p. 43.) Plaintiff’s responses dated December 2, 2022 continued to state only legal conclusions in response to Item 17.1. (Id., pdf p. 107.) On February 24, 2023, the Court ordered Plaintiff to serve further responses to HCC’s Form Interrogatories. To date, Plaintiff has identified no facts, witnesses, and or documents to support Defendant’s liability in this action. (Id., ¶7.) HCC’s counsel’s declaration and Plaintiff’s discovery responses are sufficient to show that there is a reasonable possibility that HCC will prevail in this action because Plaintiff’s discovery responses show she has no evidence to support HCC’s liability.

Although Plaintiff argues in her opposition that her expert will be able to testify that a dangerous condition existed on the property, Plaintiff provided no evidence of this testimony and did not disclose this information as required in Item 17.1 in HCC’s Form Interrogatories. Plaintiff also argues that HCC has not provided evidence that it had no notice of a dangerous condition or that it ever inspected the subject sidewalk. However, HCC is not required to show there is no possibility that Plaintiff will prevail at trial. Rather, it is sufficient to show that HCC has a reasonable possibility of prevailing at trial. As it stands, Plaintiff’s discovery responses show she does not possess any facts, witnesses, and documents to support HCC’s liability. There is a reasonable possibility that HCC will prevail at trial.