Judge: Michael E. Whitaker, Case: 20STCV19378, Date: 2022-08-08 Tentative Ruling

Case Number: 20STCV19378    Hearing Date: August 8, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Shawnna Morgan sued Defendant/Cross-Complainant Dolores Athuil (“Defendant”) based on injuries Plaintiff alleges she sustained in a slip and fall involving a jacuzzi on property owned and controlled by Defendant. Defendant moves to require Plaintiff to post an undertaking.  Plaintiff opposes the motion. 

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, Plaintiff is a resident of Kentucky.  (Declaration of Shawnna Morgan, ¶ 3.)  Defendant advances Plaintiff’s discovery responses and deposition testimony.  According to Plaintiff, she consumed a number of cans of beer before entering and exiting the jacuzzi, she wrung water from her bathing suit while standing on the ledge of the jacuzzi, and she did not put on her anti-slip shoes before stepping out of the jacuzzi.  (See Declaration of Ivan Iles, Exhibit A, pp. 23-26, 36-37; Exhibit B, p. 4.)   Defendant has thus advanced sufficient evidence to show there is a reasonably possibility Defendant will prevail in the action. 

Defendant advances the declaration of counsel for Defendant, Ivan Iles (“Iles”).  Iles avers that the sum of Defendant’s costs incurred as of the filing date of the motion plus expected future costs, including attorney fees, is $70,738.83.  (Declaration of Ivan Iles, Exhibit J.)  

In opposition, Plaintiff argues that she is indigent and thus unable to provide 100% collateral nor provide a 100% cash deposit in the requested amount of $70,738.83 to file an undertaking.  Plaintiff advances her own declaration and sufficient financial information by which the Court can determine that Plaintiff is entitled to relief under Code of Civil Procedure section 995.240.  (See Declaration of Michelle Parra, ¶¶ 4-7; Exhibit A; see also Alshafie v. Lallande (2009) 171 Cal.App.4th 421 [finding error in granting a motion for undertaking without first considering the plaintiff’s financial ability to satisfy the bond requirement].) 

Accordingly, the Court denies Defendant’s motion.  Defendant is ordered to provide notice of the Court’s ruling and file proof of service of such.