Judge Kerry Bensinger, Case 21STCV12284 2023-01-27 Tentative Ruling

On April 1, 2021, plaintiff Theodore Harrison (“Plaintiff”) filed this action against defendants Global Restaurant Hospitality Group, LLC (“Global LLC”), Friedman Fleischer & Lowe, LLC (“Friedman LLC”) and Does 1 to 25, asserting causes of action for (1) general negligence and (2) premises liability.

On October 25, 2021, Plaintiff amended the Complaint to substitute Cajun Realty, LLC (“Cajun LLC”), for the defendant sued fictitiously as Doe 1, Royal California, L.P. (“Royal L.P.”) for Doe 2, and Abdollah Moezzi (“Moezzi”) for Doe 3.

On January 28, 2022, Plaintiff amended the Complaint to substitute Savine Investments LLC (“Savine LLC”) for the defendant sued fictitiously as Doe 4.

The attachments to the Complaint allege the following. On May 3, 2020, Plaintiff was walking in the parking lot of Church’s Chicken, located at 3950 W. Century Blvd., Inglewood, CA 90303 (the “Premises”), when he tripped and fell because of a pothole in the parking lot. The defendants breached their duty to maintain the Premises in a reasonably safe condition, causing Plaintiff to trip and fall.

On December 30, 2022, Global LLC filed the instant motion for undertaking pursuant to Code of Civil Procedure section 1030.

“Plaintiffs who reside outside of California may be required to post an undertaking to ensure payment of costs to a prevailing defendant.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428 (“Alshafie”).)

Code of Civil Procedure section 1030 (“Section 1030”) provides: “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.” (Code Civ. Proc., § 1030, subd. (a).)

‘there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.’ ([Code Civ. Proc.] § 1030, subd. (b).) If the plaintiff fails to file an undertaking after the court determines the grounds for the motion have been established, the plaintiff's ‘action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.’ (§ 1030, subds. (c) & (d).)” (Alshafie, supra, 171 Cal.App.4th at p. 428 [emphasis added].)

“Even if [a] defendant establishes the grounds for an undertaking, the trial court may waive the requirement if the plaintiff establishes indigency.” (Alshafie, supra, 171 Cal.App.4th at p. 429; see Code Civ. Proc., § 995.240 [“‘The 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’”].) “The public policy underlying an indigent’s entitlement to a waiver of security costs is essentially ‘access trumps comfort.’ [Citation.] ‘In ruling indigents are entitled to a waiver of security for costs, [the State is] saying one party’s economic interest in receiving its costs of litigation should it win cannot be used to deny an indigent his fundamental right of access to the courts.’ [Citations.]” (Alshafie, supra, 171 Cal.App.4th at p. 429.)

However, a trial court no longer has discretion to impose the bond requirement of Section 1030 if the plaintiff sought and the court approved an in forma pauperis order (i.e., a fee waiver permitting the plaintiff to proceed in the litigation without paying court fees and costs). (Alshafie, supra, 171 Cal.App.4th at pp. 429-431.)

To summarize, in a motion for undertaking, the burden is on the defendant to establish that the plaintiff resides out of state and there is a reasonable possibility that the defendant will obtain a judgment in its favor. However, even if the defendant establishes those grounds for an undertaking, the trial court may waive the requirement if the plaintiff establishes indigency. If the plaintiff obtained a waiver of his court fees and costs, then indigency is already proven and the court no longer has the discretion to decide whether or not to waive the bond requirement; it must waive the bond requirement. If the plaintiff did not obtain a waiver of his court and fees, then the trial court has the discretion to waive the bond requirement. “‘In exercising its discretion [to waive the bond] 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.’ [Citation.]” (Alshafie, supra, 171 Cal.App.4th at p. 429.)

Global LLC argues (and Plaintiff does not dispute) that he is a citizen and resident of Washington State. (Motion, Declaration of Jane G. Kuppermann (“Kuppermann Decl.”), ¶ 3, Exhibit A – deposition of Plaintiff Theodore Harrison (“Plaintiff’s Depo”), p. 21:1-9 [showing that during his deposition on August 25, 2022, Plaintiff testified that he was moving to Shoreline, Washington].)

Accordingly, the Court finds that the Defendant has established that Plaintiff resides out of state.

B. Whether Global LLC has a Reasonable Possibility of Obtaining Judgment in its Favor

Plaintiff asserts only two causes of action, general negligence and premises liability, against Global LLC.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Global LLC argues that it has a reasonable possibility of obtaining a judgment in its favor because (1) there is no evidence that it breached any duty of care or that the parking lot where the alleged incident occurred constituted a dangerous condition, and (2) there is no evidence of causation because it was due to the negligence of an unidentified vehicle that entered the parking lot, startled plaintiff, and caused him to fall.

“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)

Here, Global LLC does not contend that it did not own, possess, or control the Premises.

“The foundational principle of California tort law is that every person has a ‘“duty ... to exercise, in his or her activities, reasonable care for the safety of others.”’ [Citations.]” (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 254 (“Lopez”).)

“As applied to persons who own or occupy land, California tort law imposes a duty ‘to maintain land in their possession and control in a reasonably safe condition.’ [Citations.]” (Lopez, supra, 55 Cal.App.5th at pp. 254-255.) “This duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)

“An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 (“Stathoulis”).) “The law imposes no duty on a landowner—including a public entity—to repair trivial defects, or ‘to maintain [its property] in an absolutely perfect condition.’ [Citation.]” (Ibid.) “‘[A] property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.’ [Citation.] Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents.” (Ibid.)

“The decision whether a crack or other defect in a walkway is dangerous does not rest entirely on the size of the depression.” (Stathoulis, supra, 164 Cal.App.4th at p. 566.)

“Although the size of a crack or pothole is a pivotal factor in the determination, ‘a tape measure alone cannot be used to determine whether the defect was trivial.’ [Citation.]” (Stathoulis, supra, 164 Cal.App.4th at pp. 566–567.)

“‘Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.’ [Citation.]” (Stathoulis, supra, 164 Cal.App.4th at p. 567.) “‘Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian's view of the defect.’ [Citation.]” (Ibid.) “The court should also consider the weather at the time of the accident, plaintiff's knowledge of the conditions in the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury.” (Ibid.)

Here, Global LLC does not dispute that there were potholes on its parking lot or even that the potholes were in a dangerous condition.

Instead, it argues that the area where Plaintiff alleges he fell, was at least 11 feet away from the potholes and, therefore, not in a dangerous condition.

It offers the following evidence to support that argument. On the date of the incident, Plaintiff testified that he went to the Premises, and parked in the back of the parking lot because it was during Covid-19. (Motion, Kuppermann Decl., Exhibit A – Plaintiff’s Depo., p 27:10-13.) When he parked, he backed into his parking spot instead of parking headfirst. (Plaintiff’s Depo., p. 49:3-5.) He did not park in the first parking spot which was next to grass. (Plaintiff’s Depo., p. 47:23-25.) He was sitting in his vehicle eating his chicken when he remembered that he forgot to get his soda. (Plaintiff’s Depo., p. 27:10-13.) Therefore, he got out of his vehicle, began walking forward towards the front of the restaurant, and was “in front of [his] car,” when he saw a “car coming real fast ….” (Plaintiff’s Depo., p. 49:7-25.) Specifically, “[he] got out of [his] door, and [was] walking, and then this car [sic] just coming. [He] couldn’t do nothing but step back. Or he would have hit [him].” (Plaintiff’s Depo., pp. 49:18-50:7.)

Counsel asked: “Had you gotten past the front bumper of your car vehicle?” (Plaintiff’s Depo., p. 50:2-3.) Plaintiff answered: “I think I was -- no. Like I said, I got out of my car, and he coming real fast. I’m right there by the front of my car. By the side of my car. I wasn’t in front of my car on the driver’s side. That side.” (Plaintiff’s Depo., p. 50:2-3.) Counsel clarified: “And I just want to make clear, you got out of your car, you shut your door, you walked up the driver’s side of your car, but you didn’t go in front of the front of you bumper. Is that correct?” (Plaintiff’s Depo., p. 50:13-16.) Plaintiff answered: “I was on the side of my car. My bumper is in the front of my car. I was on the side. I’m walking to go to get a soda. I’m just about maybe a foot or two in front of -- on the side in front of my car.” (Plaintiff’s Depo., p. 50:17-20.)

Therefore, Plaintiff testified that he was not parked in the parking spot next to the grass; he exited his vehicle and began walking towards the restaurant to get a soda; he had not reached the front bumper of his car; he was still (about one or two feet) away from the side of his car, when he saw an unidentified car coming really fast; and to prevent getting hit by the car, he moved.

Global LLC also submits as evidence the declaration of Brad Rutledge, MS PE (“Rutledge”), a California licensed professional mechanical engineer, who attests to the following (among other) facts. (Motion, Kuppermann Decl., Exhibit C (“Rutledge Decl.”), ¶ 3.) “Based on DMV records and a VIN decode, [he] determined that [Plaintiff] was driving a 2005 Pontiac G6 at the time of the alleged incident.” (Rutledge Decl., ¶ 9.) Placing a scaled model of a 2006 Pontiac G6 into a scaled aerial image of the incident’s location, he determined that the location that Plaintiff claims to have stepped backwards into the parking lot defect was approximately 11 to 27 feet from the front left corner of his vehicle, depending on his path of travel. (Rutledge Decl., ¶ 9.) “Assuming an average step length of approximately 2.5 feet, as shown in published biomechanical research, [Plaintiff] would have taken approximately 11 to 27 to the northwest of his vehicle to be positions such that his back was to the parking lot defect and the front of his body was facing the path that a vehicle would have been entering.” (Rutledge Decl., ¶ 11.) Therefore, “[Plaintiff’s] testimony describing the subject incident is inconsistent with the scene geometry.” (Rutledge Decl., ¶ 13.) Rutledge has included aerial images of the parking lot with annotations to illustrate his opinion.

Global LLC argues that “[t]he photographs of the parking lot clearly show the area claimed to have been negligently maintained by the Defendant to have been significantly separate from the area of the parking lot in which he parked his vehicle.” (Motion, p. 10:5-7.) “If the incident occurred, Plaintiff’ [sic] was merely startled by a fast-moving vehicle that caused him to fall backwards.” (Motion, p. 10:8-10.) Plaintiff’s alleged fall was solely due to the negligence of the unidentified vehicle that entered the parking lot. (Motion, pp. 10:28-11:3.)

In opposition, Plaintiff argues that there is no “evidence provided by the Defendant apart from its speculation of how the incident occurred, which even it, does not prove fault on the side of Plaintiff.” (Opposition, p. 7:8-10.) Plaintiff submits his declaration as evidence. In his declaration, he states: “I … exited my vehicle and started walking toward the drive-thru window. However, after taking a few steps, there was a vehicle that had been traveling on Prairie Avenue that turned into the parking lot of the restaurant. The vehicle was driving at a high rate of speed toward me. In an attempt to avoid getting hit, I jumped back and stepped into a hole in the parking lot that was covered with water. The incident occurred very fast.” (Opposition, declaration of Theodore Harrison (“Plaintiff’s Opposing Decl.”), ¶ 5 [emphasis added].) “I was startled by the vehicle that was driving at a high rate of speed toward me and I stepped in a hole that was covered with water resulting in me falling to the ground resulting in me sustaining serious injuries.” (Plaintiff’s Opposing Decl., ¶ 5.)

In reply, Global LLC argues that a reasonable possibility standard requires only that it present a sufficient showing to support a judgment in its favor (a lesser standard that on summary judgment), and that it has met that standard. (Reply, p. 3:14-16.)

In Baltayan v. Estate of Getemyah, 90 Cal.App.4th 1427 (“Baltayan”), the Court of Appeal explained the meaning of “reasonable possibility.” The appellate court held that the “[r]espondents [in that case] were not required to show that there was no possibility that appellant could win at trial, but only that it was reasonably possible that respondents would win.” (Id. at p. 1432 [italics in original].) Therefore, the question here is not whether Global LLC has shown that there is no possibility that Plaintiff could win at trial. Rather the question is whether Global LLC has established that it is reasonably possible it may win at trial. This is a relatively low standard.

The Court finds that Global LLC has shown it is reasonably possible it may win at trial. Global LLC’s evidence may well carry the day. As described above, it’s reasonably possible.

As discussed above, even if a defendant establishes grounds for granting a motion for undertaking, the Court may waive the bond requirement under Section 1030 if the plaintiff is indigent.

Here, there is no record of Plaintiff filing, or the Court approving, a request for waiver of court fees and costs. In addition, Plaintiff neither argues nor presents evidence showing indigency.

“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.” (Code Civ. Proc., § 1030, subd. (c).) “For the purposes of this section, ‘attorney’s fees’ means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract.” (Code Civ. Proc., § 1030, subd. (a).)

Global LLC is required to file an “affidavit … set[ting] 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.” (Code Civ. Proc., § 1030, subd. (b).)

In opposition, Plaintiff argues that “there is not a basis for the defendant to recover at least $40,000 of the costs,” because defense counsel is “estimating … costs which clearly would not be recoverable …,” such as independent medical examination fees, expert and consultant fees, and witness fees. (Opposition, p. 8:11-16.)

In reply, Global LLC argues that the purpose of a Section 1030 undertaking is to secure an award of costs and attorney’s fees “which may be awarded in the action.” (Reply, p. 6:7-8.) Therefore, it explains, since fees for expert witnesses, independent medical examinations, and ordinary witness (subject to Government Code section 68093) could be recoverable if ordered by the Court, it is entitled to an undertaking of such value to cover all costs and fees that could be awarded. (Reply, p. 6:6-13.)

At this point in the litigation, however, a section 998 offer has not been made or is at issue. The Court finds an undertaking of $6,600 to be appropriate, determined as follows: $600 in appearance fees, $1,000 in witness fees; $2,000 for deposition transcripts, $1,000 for services of subpoena and copying and Plaintiff’s medical records, $750 in filing fees, $250 for exhibits, $1,000 for court reporter fees.

Even though Global LLC argues that it is possible it could recover fees for independent medical examination, experts and consultant, it does not show that why it is likely the case that those fees will be awarded here.

Plaintiff Theodore Harrison is ordered to file the undertaking in the amount of $6,600 as security for costs and attorney’s fees. (Code Civ. Proc., § 1030, subd. (c).)

Plaintiff shall file the undertaking no later than 35 days of this ruling. (Code Civ. Proc., § 1030, subd. (d).)

If Plaintiff fails to file the undertaking within the time allowed, his action shall be dismissed as to defendant Global Restaurant Hospitality Group, LLC, in whose favor this order requiring the undertaking is made. (Code Civ. Proc., § 1030, subd. (d).)

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.

Hon. Kerry Bensinger

Judge of the Superior Court