Judge: Lisa R. Jaskol, Case: 22STCV10587, Date: 2024-12-04 Tentative Ruling

Case Number: 22STCV10587    Hearing Date: December 4, 2024    Dept: 28

Having considered the moving, opposition and reply papers, the Court rules as follows. 

BACKGROUND 

On March 28, 2022, Plaintiffs Tracy Sorcelli and Henry Sorcelli filed this action against Defendants Southern California Orthopedic Institute, Skip Presley, and Does 1-100 for medical negligence and loss of consortium. 

On September 25, 2023, Defendants Skip Presley and Southern California Orthopedic Institute LP, sued and served as Southern California Orthopedic Institute (“Defendants”), filed an answer. 

On October 2, 2024, Defendants filed a motion to require Plaintiffs to file an undertaking of $37,800.00 as security for costs.  The motion was set for hearing on December 4, 2024.  On November 20, 2024, Plaintiffs filed an opposition.  On November 22, 2024, Defendants filed a reply. 

PARTIES’ REQUESTS 

Defendants asks the Court to order Plaintiffs to file an undertaking of $37,800.00 as security for costs. 

Plaintiffs ask 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.” 

(Code Civ. Proc., § 1030.) 

“Even if the defendant establishes the grounds for an undertaking, the trial court may waive the requirement if the plaintiff establishes indigency.”  (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429 (Alshafie).)  Code of Civil Procedure section 995.240 provides: “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. In exercising its discretion 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.”  (Code Civ. Proc., § 995.240; see Alshafie, supra, 171 Cal.App.4th at p. 429.) 

“The public policy underlying an indigent’s entitlement to a waiver of security costs is essentially ‘access trumps comfort.’ ” (Alshafie, supra, 171 Cal.App.4th at p. 429, quoting Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1442 (conc. opn. of Johnson, J.) (Baltayan).)  “ ‘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.’ ” (Ibid., quoting Baltayan, supra, 90 Cal.App.4th at p. 1442; see Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 185 [“ ‘[r]estricting an indigent’s access to the courts because of his poverty ... contravenes the fundamental notions of equality and fairness which since the earliest days of the common law have found expression in the right to proceed in forma pauperis’ ”].) 

“In the first instance the ‘party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief.’ ” (Alshafie, supra, 171 Cal.App.4th at p. 432, quoting Williams v. FreedomCard, Inc. (2004) 123 Cal.App.4th 609, 614.) 

“[A] plaintiff is not obligated to obtain in forma pauperis status to be entitled to a waiver of the section 1030 bond requirement.” (Alshafie, supra, 171 Cal.App.4th at p. 434, citing Conover v. Hall (1974) 11 Cal.3d 842, 852 [in forma pauperis application is not required before relief can be granted from statutory bond requirement].)  “Under these circumstances, when the plaintiff has, for whatever reason, elected not to seek in forma pauperis status, there is no rigid standard for the requisite showing of indigency; and, as discussed, it ultimately remains within the court’s discretion to determine whether to grant a waiver.”  (Ibid., citing Code Civ. Proc., § 995.240; Baltayan, supra, 90 Cal.App.4th at p. 1443 (conc. opn. of Johnson, J.) [“Obviously the court had the power and the duty to determine whether a litigant, including appellant, is indigent and possesses a colorable claim, and thus is qualified for in forma pauperis relief. In that sense, it is a discretionary decision.”].) 

“Certainly, however, a plaintiff seeking such a waiver would be well advised to provide the detailed financial information requested on the mandatory Judicial Council form for obtaining in forma pauperis status. Completing that form would provide the trial court with a solid basis for making the waiver decision . . . .” (Alshafie, supra, 171 Cal.App.4th at p. 434.) 

“[T]o fulfill its statutory duties when exercising its discretion, the court must review the plaintiff’s showing, identify deficiencies, if any, and give the plaintiff the opportunity to supply additional information that may be necessary to establish his or her entitlement to a waiver under the circumstances of the particular case.  [Fn. omitted.] Only by taking such a proactive role can the trial court properly balance the respective rights of the parties while minimizing the circumstances in which a potentially meritorious case is dismissed solely because the plaintiff cannot post an undertaking.”   (Alshafie, supra, 171 Cal.App.4th at pp. 435-436.) 

DISCUSSION              

A.   The complaint 

          The complaint includes the following allegations: 

On or about April 19, 2021, Defendants negligently examined, diagnosed, advised, cared, treated, and administered to Plaintiff Tracy Sorcelli.  In their examination, diagnosis, advice, care, treatment and administration of medical care to Plaintiff Tracy Sorcelli, Defendants failed to exercise that degree of skill and care commonly possessed and exercised by health care providers, medical practitioners, medical doctors, medical specialists, physicians, surgeons, physician’s assistants, nurses, technicians, aides, radiologists, anesthetists, laboratory assistants, x-ray assistants and/or medical facilities who perform the same and similar treatment and diagnostic procedures in the area where Defendants practice.  As a result of Defendants’ negligence, Plaintiff Tracy Sorcelli was injured. 

          Henry Sorcelli, Tracy Sorcelli’s husband, asserts a claim for loss of consortium. 

B.   Defendants’ motion 

Defendants contend that Plaintiffs live in Arizona and there is a reasonable possibility that Defendants will prevail in the case.  Defendants estimate that they will incur costs of $37,829.09 through trial.  They ask the Court to order Plaintiffs to post a bond of $37,800.00. 

In opposition, Plaintiffs argue the Court should waive the bond undertaking because they are indigent.  Plaintiffs have submitted declarations stating that they have approximately $300 in their checking account, no savings account, and no investments. Aside from their home and a shared vehicle, they own no property of any significant value, real or personal. They are retired and have not worked since 2022. Tracy Sorcelli’s only sources of income are Social Security Disability payments and a modest retirement benefit which, together, bring in approximately $2,400 per month. Henry Sorcelli receives Social Security benefits as well as a modest retirement benefit totaling approximately $3,000. Plaintiffs’ monthly living expenses include the following: Groceries $800; Electricity $400; Water $100; Cell phones $444; Cable $187; Medications $176; HOA Fees $101; Car Insurance $189.98; Home Owners Insurance $173.34; Loan Repayment $150; Lowes Credit Card $200; Home Depot Credit Card $150; Medical Co-pays $70; Waste Management $53; Pool Cleaner $260; Wells Fargo Loan $329.82; Home Republic Ins. $301; Dog Food $300; Amazon $100; Orthodontist $200; Vet Bills $400; Total Monthly Expenses: $5,085.  When living expenses are paid there is nothing left over.  Plaintiffs assert that they are unable to pay the requested undertaking and do not have the ability to get a bond for it.  They cannot proceed with the lawsuit if required to post the undertaking. 

In reply, Defendants argue that Plaintiffs “did not provide evidence of indigency or that they attempted to and were ‘unable to obtain sufficient sureties,’ which is required to request a waiver of the undertaking under section 995.240.”  (Reply p. 2.)

In Alshafie, the Court of Appeal rejected the contention that a plaintiff must unsuccessfully attempt to obtain a bond before he or she may be granted a waiver of the section 1030 requirement for an undertaking, stating, “[i]f it is apparent from the plaintiff’s declaration and financial information that obtaining an undertaking would be impossible, the law does not require the futile act of attempting to do so.”  (Alshafie, supra, 171 Cal.App.4th at p. 435, fn. 10.)  The Court of Appeal added: “Similarly, although information concerning the unavailability of relatives or friends to provide the resources for a bond may be of interest, we are unaware of any basis—statutory or otherwise—for requiring a litigant to demonstrate that people outside his or her own household or nuclear family cannot assist in paying court fees or costs.”  (Ibid.)  Here, the Court finds that Plaintiffs' declarations show that obtaining an undertaking would be impossible.

Defendants also suggest that Plaintiffs were required to submit “tax returns, receipts or other substantive documentation” to support their declarations.  (Reply p. 4.)  However, Defendants base this argument on a reference to the trial court ruling which the Court of Appeal reversed in Alshafie.  (See Reply p. 4, citing Alshafie, supra, 171 Cal.App.4th at p. 427.) 

The Court concludes that Plaintiffs have carried their burden of showing they are entitled to relief from the undertaking requirement under Code of Civil Procedure section 995.240.  The Court denies Defendants' motion. 

CONCLUSION 

The Court DENIES the motion filed by Defendants Skip Presley and Southern California Orthopedic Institute LP to require Plaintiffs Tracy Sorcelli and Henry Sorcelli to file an undertaking. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.