Judge Jill Feeney, Case 21STCV21269 2023-02-15 Tentative Ruling

This is an action for negligence arising from a slip and fall incident which took place in June 2019. Plaintiff Natalia Busiy filed her Complaint against Defendant Watt Construction Co. dba Kona Kai Mobile Village on June 8, 2021.

Defendant argues that Plaintiff should be ordered to pay a bond amount of $120,000 on the grounds that Plaintiff resides in Nevada and that there is evidence showing Defendant did not have notice of a dangerous condition on its premises.

Plaintiff argues that Defendant fails to show that Plaintiff has no reasonable probability of prevailing on their claims. Plaintiff also argues that Defendant failed to show a reasonable possibility of prevailing. Plaintiff also argues that Defendant failed to demonstrate that costs are reasonable and recoverable and that the bond request was untimely. Finally, Plaintiff argues that she has established indigency which excuses the obligation to post bond.

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 is 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).)

Defendant argues it has a reasonable possibility of obtaining judgment in its favor on the grounds that there is evidence that Defendant did not have notice of the dangerous condition that caused Plaintiff’s fall.

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.)

Because the owner is not the insurer of the visitor’s personal safety…, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it.¿ (Ortega, 26 Cal.4th at 1203, 1206.)

However, the plaintiff need not show actual knowledge where evidence suggests the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence, which may be shown by circumstantial evidence. (Ortega, supra, 26 Cal.4th at p. 1206.) A plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence that an inspection had not been made within a particular period of time prior to the accident, warranting the inference that the defective condition existed long enough that a person exercising reasonable care would have discovered it. (Id. at p. 1210.)

A moving party “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Ortega, supra, 26 Cal.4th at pp. 1205-1206.) “In the context of a business owner’s liability to a customer or invitee, speculation and conjecture with respect to how long a dangerous condition existed are insufficient to satisfy a plaintiff’s burden. (Id.)

“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie v. Hagstrom's Food Stores (1947) 81 Cal.App.2d 601, 608.) “It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.” (Ortega, supra, 26 Cal.4th at p. 1213.)

Here, Defendant relies on Plaintiff’s deposition and declarations from its employees to show that it did not have notice of a dangerous condition on its premises. Plaintiff alleges that in June 2019, she used Defendant’s clubhouse swimming pool and slipped while using the bathroom on the premises.

Plaintiff testified at deposition that when she fell, it was dark and the floor where she slipped was wet. (Buiy Decl., 44:1-25.) Plaintiff also testified that she wrote to the facility’s management repeatedly before she fell regarding safety in the pool and the pool bathroom. (Id., 46:12-47:17.) Plaintiff testifies that she began going to the pool in the evening due to her concerns over safety caused by other patrons’ use of the pool in the daytime. (Id.)

Defendant’s former employee, Al Gonzalez, testifies in a declaration that maintenance issues with the pool and pool bathroom were reported to him or to his supervisor, Betty Gutierrez, at the time of the incident. (Gonzalez Decl., ¶3.) Gonzalez also testifies that there were no complaints of water on the floor where Plaintiff fell, nor were the lights turned off when the pool bathroom closed at the end of the day. (Id., ¶¶7-8.) Betty Gutierrez testifies the same in an identical declaration. (Motion, Exh. D.) Finally, the facility’s maintenance handyman, Juan Carlos Mata, testifies in his declaration that he conducted his morning inspection that day and saw no leaks, water, or other substance on the floor, and confirmed that the lights were functioning properly. (Mata Decl., ¶9.)

Defendant’s evidence is insufficient to establish that there is a reasonable possibility that Defendant will prevail against Plaintiff’s claims. The evidence shows that Defendant’s employees did not observe any water on the floor on the morning of the incident and when the pool closed and that the lights were functioning at those times.. However, there is no evidence of whether Defendant had constructive notice of the water or lack of light in the pool bathroom at the time of the incident. Here, there is no evidence provided as the time of Plaintiff’s fall as compared to the time of the last inspection. Moreover, there is no evidence that that a reasonable person exercising due care would not have discovered the issues with the bathroom. Given that the bathrooms at the pool are obviously subject to being slick due to water on the floor, it is not evident that checking the floor twice a day is exercising reasonable care under the circumstances.