Judge: Michael E. Whitaker, Case: 20STCV03577, Date: 2024-12-16 Tentative Ruling

Case Number: 20STCV03577    Hearing Date: December 16, 2024    Dept: 207

TENTATIVE RULING

MOTION

Defendants and Cross-Complainants Label 27, LLC (“L27”) and Brooks Ellis (“Ellis”) (together, “Defendants”) move for an order that Plaintiff Derek Underwood (“Plaintiff”) post an undertaking pursuant to Code of Civil Procedure section 1030, subdivision (b) in the amount of $18,810.25.  Plaintiff opposes the motion and Defendants reply. 

EVIDENTIARY OBJECTIONS

            The Court rules as follows with respect to Defendants’ Evidentiary Objections to the Declaration of Manuel Balam:

1.     Sustained

2.     Sustained

3.     Sustained

4.     Sustained

5.     Sustained

6.     Sustained

7.     Sustained

8.     Sustained

9.     Sustained

10.  Overruled

11.  Sustained

12.  Sustained

13.  Sustained

14.  Sustained

15.  Overruled

16.  Overruled

17.  Sustained

18.  Sustained

The Court rules as follows with respect to Defendants’ Evidentiary Objections to the Exhibits:

1.     Sustained

2.     Sustained

The Court rules as follows with respect to Defendants’ Evidentiary Objections to the Testimony of Brooks Ellis:

1.     Overruled

ANALYSIS

“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, subd. (a).)  The plaintiff is not required to file an undertaking unless “there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.”  (Code Civ. Proc., § 1030, subd. (b).)  The defendant is not required to show that there is no possibility that the plaintiff can prevail at trial, but rather must demonstrate only that it is reasonably possible that the defendant will prevail.  (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432-1433.)  The defendant must also submit an affidavit stating the nature and amount of costs and attorney’s fees the defendant has incurred, and expects to incur throughout the remainder of the proceedings.  (Code Civ. Proc., § 1030, subd. (b).)  

“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).)  If the court grants the motion and the plaintiff fails to file the undertaking within the time allowed, the court must dismiss the plaintiff’s action or special proceeding as to the defendant in whose favor the order requiring the undertaking was made.  (Code Civ. Proc., § 1030, subd. (d).) 

Here, Defendants advance the Declaration of Kent G. Mariconda, counsel for Defendants (“Mariconda”), asserting that Plaintiff is a resident of Panama.  In support, Defendants provide Plaintiff’s response to a demand for a Defense Medical Examination (“DME”), to which Plaintiff provided a written objection on the grounds “that Plaintiff currently resides in Panama, which is more than 75 miles from the location set forth in the Demand.”  (Mariconda Decl. ¶ 4, Ex. 1.)  Plaintiff does not contest that he lives in Panama.

With regard to a reasonable possibility that Defendants will prevail, Defendants primarily point to the fact that Plaintiff failed to show for a DME.  Defendants also provide an attorney declaration, which purports to summarize the discovery responses received in this case, indicating that Plaintiff was intoxicated and initiated the physical altercation, first by shouting racial epithets toward Ellis and [Andrew] Heric, then physically charging at them with a cornhole board, and ultimately physically moving aggressively in a small group toward an individual protecting the premises, at which point Ellis tackled an individual to subdue him.  (Mariconda Decl. ¶ 3.)

In opposition, Plaintiff advances the declaration of Manuel D. Balam, counsel for Plaintiff (“Balam”).  Regarding Plaintiff’s failure to appear for a physical examination, Balam indicates that Defendants have no recourse to obtain issue, evidentiary, or terminating sanctions due to Plaintiff’s failure to appear for the examination, because it was served on Plaintiff by other Defendants to the litigation, who have since settled with Plaintiff:

14) […] LABEL27 Defendants […] have failed to conduct their own discovery in riding the coattails of settled-out TCP Defendants and they never filed joinder to their applicable discovery. Fatally, there is and will be no basis for LABEL27 Defendants to seek exclusion of anything.

15) The truth is that LABEL27 Defendants did not actually serve their own demand for physical examination, did not serve their own demand for expert exchange, did not engage in a mutual exchange of expert information, and served no expert deposition notices. The Motion fails to point out that all prior discovery activity was solely by TCP Defendants, who are no longer in the case as Defendants. To certain discovery by TCP Defendants and only TCP Defendants, Plaintiff served objections. TCP Defendants never moved to compel. Thus, it has never been a matter of simply not appearing or not participating. Since LABEL27 Defendants did not conduct their own discovery—no DME; no expert demand; no expert exchange; and no expert notices; and no joinders to any of these things, they lack a basis to exclusion of anything. In fact, quite the opposite. Plaintiff is highly likely, if not certainly, to get exclusionary and dispositive orders against LABEL27 Defendants because they failed to designate ANY experts. Defendant has no experts. They will not be able to oppose Plaintiff’s experts. Plaintiff, who actually did participate in expert exchanges, will or should win on exclusionary issues as a matter of law pursuant to CCP §2034.300.

(Balam Decl. ¶¶ 14-15.)  Plaintiff also provides purported video surveillance of the incident, in which Balam indicates was “authenticated by ELLIS and HERIC during their depositions.”  (Balam Decl. ¶ 5.)  However, the deposition transcripts provided do not provide any such authentications.  As such, the video evidence is unauthenticated and provides no evidentiary value.

            Ultimately, the Court finds that, although it is a low bar, Defendants have not met their burden to demonstrate a reasonable possibility that they will prevail.  With regard to Plaintiff’s failure to appear for a physical examination, the matter of issue, evidentiary, or terminating sanctions is not properly before the Court.   

With regard to Defendants’ evidence regarding who actually started the fight, the attorney declaration describing and summarizing the deposition testimony is clearly inadmissible hearsay, and Defendants did not provide authenticated copies of the transcripts themselves.  Therefore, Defendants have not provided any admissible evidence that there is a reasonable possibility they will prevail at trial in establishing that Plaintiff is culpable for starting the fight.          

At the initial hearing on July 17, Defendants’ counsel represented to the Court that he submitted his declaration as a legal expert opining on the probability of obtaining a defense verdict.  However, without copies of the underlying discovery responses, the Court cannot, in its role as gatekeeper, conduct even a basic assessment of whether those responses support counsel’s “expert” opinion.  (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771–772 [“under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative”].) 

This issue is particularly marked, because in addition to being hearsay, the declaration’s wording is, at times, too vague and ambiguous to clearly discern what the deponents actually said.  For example, paragraph 3.e of the Mariconda declaration provides:

“Instinctively intending to continue to protect patrons in the area, a close watch was made upon the individuals who continued to hurl racial slurs toward ELLIS and Heric.  Heric testified that he went to his car to get a stun gun in case the matter further escalated.  The situation further escalated as one of the individuals moved in an aggressive manner towards one of the individuals trying to protect the premises.  This resulted in ELLIS trying to subdue the individual by tackling him.” 

(Mariconda Decl. at ¶ 3.e.)  

Use of the passive voice makes it unclear who made a close watch, and use of the words “individual” and “him” to refer to multiple people make it difficult to ascertain who exactly Ellis tackled.  In fact, as counsel pointed out at the prior hearing, the Court apparently misinterpreted this passage in its prior tentative ruling.  Thus, without a copy of the underlying testimony, the Court cannot determine whether counsel’s understanding and interpretation of it is in accord with the record.

CONCLUSION & ORDER

            The Court finds Defendants have failed to establish a reasonable possibility that they will prevail at trial and therefore, the Court denies Defendant’s motion to require Plaintiff to post an undertaking.

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  December 16, 2024                        ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court