Judge: Michael E. Whitaker, Case: 21STCV46856, Date: 2023-01-05 Tentative Ruling

Case Number: 21STCV46856    Hearing Date: January 5, 2023    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 Ana Tzintzun (Plaintiff) sued Defendant City of Culver City, erroneously sued as Culver CityBus, (Defendant) based on a vehicle-to-bus collision.  Plaintiff alleges that Defendant failed to keep a proper lookout for other vehicles and keep its bus under such control to avoid collision with Plaintiff.  Defendant moves to require Plaintiff to post an undertaking.  Plaintiff opposes the motion.  Defendant replies. 

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, Defendant asserts that Plaintiff is not a resident of California, but rather resides in Oregon.  In support of this contention, Defendant advances Plaintiff’s responses to Special Interrogatories propounded on her by Defendant.  Defendant specifically cites to page 6, lines 6-10 of the Plaintiff’s discovery responses. 

In opposition, Plaintiff attests none of the interrogatories or responses within the Special Interrogatories advanced by Defendant mention or reference Plaintiff’s current residence.  (See Declaration of Tiffany Schneider, Exhibit 1.)  In reply, Defendant advances Plaintiff’s responses to Form Interrogatories which indicate that Plaintiff resides in Beaverton, Oregon.  (See Declaration of Tiffany Schneider, Exhibit 1, FROG No. 2.5.)  As such Defendant has sufficiently established that Plaintiff resides out of state.

Next, in support of their contention that there is a reasonable probability Defendant will prevail in the action, Defendant advances the declaration of its attorney, Tiffany Schneider, who states that Exhibits 2 and 3 attached to Defendant’s motion are true and correct copies of the camera recording taken from cameras installed inside and outside the Culver City bus, as well as still photographs from the video.  (See Declaration of Tiffany Schneider, Exhibits 2 and 3.). These Exhibits demonstrate with reasonable probability that Plaintiff’s black Toyota Camry attempted an abrupt, ill-timed lane change in front of the Culver City bus in order to avoid a construction truck stopped in front of Plaintiff when there was insufficient room to safely complete the lane change.  (See ibid.)  Defendant has thus advanced sufficient evidence to show there is a reasonable possibility Defendant will prevail in the action.

Defendant’s counsel avers that the sum of Defendant’s cost incurred as of the filing date of the motion plus expected future costs, including attorneys’ fees, is $22,836.50 and thus requests a bond in the amount of $15,000.  (See Declaration of Tiffany Schneider, ¶¶ 5-10.)

In opposition, Plaintiff argues that bond amount of $15,000 is unreasonable improperly determined, and not recoverable pursuant to Code of Civil Procedure sections 1032 and 1033.5.  Within Defendant counsel’s itemization of costs, Defendant counsel includes tasks such as reviewing documents, preparing and responding to discovery, and drafting a motion for summary judgment.  Plaintiff argues that these tasks fall under the category of attorneys’ fees which are not recoverable in a personal injury action unless provided for by an applicable statute or contract.

In reply, Defendant argues that here Defendant would be entitled to recover attorney’s fees pursuant to Code of Civil Procedure section 1038.  Under Code of Civil Procedure section 1038, in any civil proceeding under the Government Claims Act, “[i]f the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party.”  Defense costs under Section 1038 include reasonable attorney’s fees.  (Code Civ. Proc., § 1038, subd. (b).)  Here, because Defendant is a governmental entity, the cause of actions brought against it by Plaintiff are made under the Government Claims Act.  Accordingly, the Court finds that Defendant has sufficiently established that Defendant may be entitled to recover costs including attorney’s fees upon the conclusion of this case to support a bond amount of $15,000.

            Further in opposition Plaintiff argues that she is indigent and thus the Court should exercise its discretion to waive posting of the $15,000 security.  However, Plaintiff has failed to advance any evidence in support of her claimed indigent status.

CONCLUSION & ORDER

Therefore, the Court grants Defendant’s motion to require Plaintiff to post an undertaking in the amount of $15,000, and orders such undertaking to be filed within 30 days of notice of the Court’s order per Code of Civil Procedure section 1030, subdivision (d).)   

Defendant is ordered to provide notice of the Court’s orders and file a proof of service of such.