Judge: Lisa R. Jaskol, Case: 22STCV01233, Date: 2024-12-19 Tentative Ruling
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Case Number: 22STCV01233 Hearing Date: December 19, 2024 Dept: 28
Having considered the moving, opposition and reply papers, the Court rules as follows.
BACKGROUND
On January 12, 2022, Plaintiff Nisha Anaya (“Plaintiff”) filed this action against Defendants Bernie Jose, BR Party Rentals, and Does 1-50 for general negligence and premises liability.
On June 26, 2023, Defendant Bernabe Ibarra doing business as BR Party Rental, sued as Bernie Jose and BR Party Rentals, filed an answer. On October 10, 2024, the Court dismissed Defendants Bernie Jose and Bernabe Ibarra Doing Business as BR Party Rentals with prejudice at Plaintiff’s request.
On December 1, 2023, Plaintiff amended the complaint to include Defendant The Robert Group, Inc. (“Defendant”) as Doe 1. On March 29, 2024, Defendant filed an answer.
On September 13, 2024, Defendant filed a motion for a security undertaking under Code of Civil Procedure section 1030. The motion was set for hearing on November 13, 2024. On October 31, 2024, Defendant filed a notice of non-opposition. Also on October 31, 2024, Plaintiff filed an opposition. (The Court exercises its discretion to consider the opposition.) On November 5, 2024, Defendant filed a reply. The Court continued the hearing to December 19, 2024.
PARTIES’ REQUESTS
Defendant asks the Court to order Plaintiff to file an undertaking of $35,000.00 as security for costs.
Plaintiff asks the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 1030 provides:
“(a) 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. 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.
“(b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set 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.
“(c) 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.
“(d) The plaintiff shall file the undertaking not later than 30 days after service of the court’s order requiring it or within a greater time allowed by the court. If 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.
“(e) If the defendant’s motion for an order requiring an undertaking is filed not later than 30 days after service of summons on the defendant, further proceedings may be stayed in the discretion of the court upon application to the court by the defendant by noticed motion for the stay until 10 days after the motion for the undertaking is denied or, if granted, until 10 days after the required undertaking has been filed and the defendant has been served with a copy of the undertaking. The hearing on the application for the stay shall be held not later than 60 days after service of the summons. If the defendant files a motion for an order requiring an undertaking, which is granted but the defendant objects to the undertaking, the court may in its discretion stay the proceedings not longer than 10 days after a sufficient undertaking has been filed and the defendant has been served with a copy of the undertaking.
“(f) 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.
“(g) An order granting or denying a motion for an undertaking under this section is not appealable.”
DISCUSSION
A. The complaint
The complaint includes the following allegations:
On November 2, 2019, at 265 S Avenue 55, Los Angeles, CA 90042 (“premises”), “Defendants’ employee negligently was carrying party tables and stuck Plaintiff in the head with three party rental tables causing her to suffer brain injury and injuries to her spine. Defendants’ employees were negligent and Defendants were negligent in maintaining and/or training its employees.”
Defendants negligently owned, maintained, managed and operated the premises. The Defendant owners willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity. Defendants were the agents and employees of the other Defendants and acted within the scope of the agency.
B. Defendant’s motion
Defendant contends that Plaintiff lives in Oregon and there is a reasonable possibility that Defendant will prevail in the case because (1) Plaintiff’s sole remedy against Defendant, her employer at the time of the accident, is workers’ compensation, (2) Plaintiff has no evidence that the person who struck Plaintiff with a table was Defendant’s employee, and (3) Plaintiff took no action to mitigate her alleged injuries. Defendant estimates that it will incur costs of “in excess of $35,000” to defend Plaintiff’s claims. Defendant asks the Court to order Plaintiff to post a bond of “at least $35,000.00.”
To support Defendant’s contention that Defendant was Plaintiff’s employer, Defendant has provided an excerpt from Plaintiff’s deposition in which Plaintiff answered “Yes” to the question “So did The Roberts Group, did they employ you on or about November 2, 2019?” (Exh. C.)
To support Defendant’s contention that Plaintiff lacks evidence showing that the person who struck her with a table was Defendant’s employee, Defendant has provided an excerpt from Plaintiff’s deposition in which Plaintiff testified she “didn’t really know” if the man who hit her with the tables was employed by The Roberts Group on the day of the incident. (Exh. D.)
C. Plaintiff’s opposition
In opposition, Plaintiff argues that Defendant’s evidence is insufficient to show that it is reasonably possible that Defendant will prevail based on the assertion that Plaintiff was an employee whose exclusive remedy is workers’ compensation. Plaintiff notes that Defendant has not presented evidence that it carried workers’ compensation insurance for Plaintiff or used paperwork typically associated with employment. Plaintiff has submitted a declaration asserting that she was an independent contractor, not an employee.
Plaintiff
also argues that Defendant has not shown that Plaintiff cannot establish that Defendant
employed the person who struck Plaintiff with tables. Plaintiff’s declaration asserts that Defendant’s
co-founder told Plaintiff that Defendant employed the person who dropped the
table.
D. Analysis
Likewise,
Plaintiff’s deposition testimony that she “didn’t really know” who hired the
person who struck her with a table does not, by itself, create a reasonable
possibility that Plaintiff will be unable to establish that Defendant hired that
person at trial. Moreover, the context
of Plaintiff’s statement suggests that Plaintiff was referring to her
knowledge before the accident took place.
(See exh. D [“We were all just there.
So I didn’t know who hired who, because I was hired by The Roberts
Group, so I didn’t know”].)
The Court denies the motion.
CONCLUSION
The Court DENIES Defendant The Robert Group, Inc.’s motion for an order requiring Plaintiff Nisha Anaya to file an undertaking.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.