Judge Lynne M. Hobbs, Case Number: 20STCV25096, Date: 2024-05-09 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV25096, Date: 2024-05-09 Tentative Ruling

Case Number: 20STCV25096 Hearing Date: May 9, 2024 Dept: 30

KERILYN HURLEY vs OUTDOOR SUPPLY HARDWARE

TENTATIVE

Defendant Combined Properties, Inc.’s motion for an undertaking is GRANTED, but in a reduced amount. Plaintiff is ordered to post bond in the amount of $11,890 within thirty days or risk dismissal of her action. Defendant Common Area Maintenance’s motion for an undertaking is DENIED.

Defendant Combined Properties, Inc. is ordered to give notice.

Legal Standard

“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.” (Code Civ. Proc., § 1030(a).) The plaintiff, however, will not be required to file an undertaking unless “there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.” (Id., § 1030(b).) The motion must be accompanied by an affidavit stating the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. (Id.)

If the motion is granted and 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. (Code Civ. Proc., §1030(d).) “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.” (Id., §1030(f).)

The second prong of the statute requires that a defendant establish that it is “reasonably possible” that it would obtain a judgment. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 [A defendant is “not required to show that there [is] no possibility that [plaintiff] [can] win at trial, but only that it [is] reasonably possible that [defendant] [will] win.”].)

As to a plaintiff’s financial condition, where a nonresident plaintiff establishes that he or she is indigent, the court has discretion to waive the posting of security. (Baltayan, supra, 90 Cal.App.4th at p. 1433.) A plaintiff is not required to request a determination of in forma pauperis. Rather, the court has discretion to waive the bond requirement for others whose individual situation justifies a waiver under the circumstances of the particular case. “Not only must the courts exempt poor people entirely, but they may have to reduce the security bond required for middle income litigants, as well.” (Alshafie v. Lallande (2009) 171 CA4th 421, 436.)

Discussion

Defendant moves for a court order requiring Plaintiff to post an undertaking in the amount of $53,890 on grounds that Plaintiff resides outside of California and there is a reasonable possibility Defendant will prevail in this action.

Plaintiff’s Residency

Defendant argues that Plaintiff is not a resident of California and that she lives in Georgia. (Plaintiff’s Depo., 14:24-15:1.) Plaintiff does not dispute this point, but argues she lived in California at the time of the incident. There is no information before the Court to show that this would change the fact that Plaintiff is not currently a resident of California.

Reasonable Possibility of Obtaining Judgment

Plaintiff alleges that she slid on sand from a tree planter box on the walkway and injured her wrist.

Defendant argues that there is a reasonable probability of prevailing in this case because Seventy-Fifth LLC owns the subject property, and as its agent, Combined Properties Incorporated (CPI) contracted with RCA in March 2017 to provide landscape maintenance, including maintenance of the planter that allegedly spilled sand onto the walkway. Safarian Decl., ¶ 4, Exh. “B” (Service Contract). That contract included a “Scope of Work” provision detailing RCA’s obligations, making RCA responsible for tasks related to “trees,” “potted plants,” “hardscapes,” and “litter and debris.” Id. RCA was required to “air blow or broom sweep curbs and storefront edges” and to “remove all litter and debris from the lawns and planter areas each service.” Id. RCA was given explicit responsibility “to maintain all city trees, tree wells, ground cover, walkways, and curb lines ... including but not limited to ... debris/trash collection.” Id.

Common Area Maintenance (CAM) was contracted to provide day porter service, pressure washing, and parking lot sweeping services. Safarian Decl., ¶ 5, Exh. “C” (CPI’s response to Plaintiff’s Special Interrogatories) at 4:7-20. Significantly, CAM did not provide any landscaping maintenance services, which were provided by RCA. Id. Plaintiff slipped on sand apparently spilled from a palm tree planter, which RCA was responsible for. Safarian Decl., ¶ 4, Exh. “B” (Service Contract).

Further, CPI did not have notice prior to the incident that there was a dangerous condition. Safarian Decl., ¶ 6, Exh. “D” (CPI’s response to Plaintiff’s Request for Admission) at 2:17-23.

The Court finds that CAM has not met its burden to show a reasonable possibility of prevailing, as it uses CPI’s responses to discovery, but it is not used against CAM. Answers to interrogatories are admissible only against the party giving the answer. (See Code Civ. Proc., § 2030.410 (“At trial or any other hearing in the action…the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party.”).) Here, CAM (any other party) may use the answer to this interrogatory only against the responding party, which is CPI. But CAM is attempting to use CPI’s responses against Plaintiff, which it may not do. Thus, no admissible evidence has been presented on behalf of CAM.

On the other hand, Defendant CPI has met its burden of showing a reasonable possibility of prevailing due to the contract with RCA to provide landscape maintenance, including maintenance of the planter that allegedly spilled sand onto the walkway. Defendant is only required to provide facts demonstrating that it is reasonably possible that he will prevail; Defendant is not required to show that there is no possibility that Plaintiff could win at trial. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.) Courts have provided little guidance as to what reasonably possible means. In Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, the Court found that the moving defendants had satisfied their burden by offering evidence of a non-binding arbitration award. See, also, Shannon v. Sims Service Center, Inc. (1985) 164 Cal. App. 3d 907, 914. Here, the court has no such guideposts. Instead, the court must look at the totality of the evidence and determine whether Defendants have proven that they have a reasonable possibility of prevailing at trial. In doing so, the court is guided by the purpose of which 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.”’ (Shannon v. Sims Service Center, Inc. (1985) 164 Cal. App. 3d 907, 913 [210 Cal. Rptr. 861], quoting from Recommendation Relating to Security for Costs (Oct. 1978) 14 Cal. Law Revision Com. Rep. (1978) p. 323.) The statute therefore acts to prevent out-of-state residents from filing frivolous lawsuits against California residents.” (Yao v. Superior Court (2002) 104 Cal. App. 4th 327, 331.)

As such, the Court finds that CAM failed to meet its burden, but CPI met its burden.

Costs

Defendants seek an undertaking in the total amount of $53,890. The nature and amount of costs that defendants expect to incur during the action are set forth in defense counsel’s declaration.

Plaintiff contends that Defendants are not entitled to $42,000 in expert fees. Indeed, “[r]ecoverable costs generally do not include the fees of expert witnesses not ordered by the court.” (Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227, 237.) In reply, Defendants rely on Code of Civil Procedure Section 998 for their assertion that they are entitled to expert fees. Expert witness fees may, within the court’s discretion, be awarded in connection with the rejection of a pretrial section 998 offer made by a defendant. (See Code Civ. Proc., § 998, subd. (c)(1).) However, what is missing in defense counsel’s declaration is a statement that a Code of Civil Procedure Section 998 Offer to Compromise has been served and expired.

Additionally, Defendant has failed to provide further details that would allow the Court to better appraise the appropriateness of a possible award of expert witness fees. The Court would need to know the amount of the offer, the other terms thereof, as well as the facts behind the calculation of the offer. (See Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 548 [“courts determine the reasonableness of a section 998 offer—that is, whether it was rendered in good faith or was an invalid token offer—as of the time the offer was made… ‘An offeree cannot be expected to accept an unreasonable offer…’”].)

Further, Defendants’ counsel does not provide sufficient information for the court to deem the total amount sought for expert fees is reasonable or appropriate. In particular, they did not provide with their moving papers sufficient detail to explain the total cost of the expert examinations.

For the foregoing reasons, the Court is unable to determine at this time whether expert witness fees would be recoverable by Defendant in this action. The Court, thus, finds that expert witness fees should not be included in calculating the amount required for the undertaking. As such, the Court reduces the amount of the undertaking in connection with the expert costs, i.e., by $42,000.

Thus, Plaintiff is ordered to post bond in the amount of $11,890 within thirty days or risk dismissal of her action.

Indigency

The Court notes that while Plaintiff correctly argues that a trial court may waive that requirement if plaintiff establishes indigency or even for middle-income litigants, Plaintiff has failed to argue and set forth evidence that she is indigent or middle-income. As such, the Court cannot waive the bond without a proper showing.

Conclusion

Based on the foregoing, Defendant Combined Properties, Inc.’s motion for an undertaking is GRANTED, but in a reduced amount. Plaintiff is ordered to post bond in the amount of $11,890 within thirty days or risk dismissal of her action. Defendant Common Area Maintenance’s motion for an undertaking is DENIED.