Judge: Michael J. Strickroth, Case: 2020-01155102, Date: 2023-07-31 Tentative Ruling

Motion for Undertaking

Defendants C Clear Custom Installation, LLC and Theca Ferdinand Winter’s Motion for Undertaking is DENIED.

“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.” Code of Civil Procedure, § 1030(a).

The motion must be supported by points and authorities and affidavits showing: (1) plaintiff's nonresidency; (2) a “reasonable possibility” defendant will prevail in the action; and (3) the nature and amount of costs and fees defendant is likely to incur in the action. Code Civ. Proc., § 1030(b).

To obtain an order requiring such bond, defendant must show a “reasonable possibility” that it will prevail at trial, and a detailed estimate of the costs it is likely to incur. Code Civ. Proc. § 1030(a), (b); Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1433 (fact that defendant prevailed in judicial arbitration established “reasonable possibility” it would prevail at trial).

Plaintiff is a resident of Tucson, Arizona.  Defendants argue there is a reasonable possibility they will prevail at trial as the deposition testimony and discovery responses indicate Plaintiff was traveling against a red light when he was hit. 

Plaintiff testified that when he entered the intersection the light was green, but then turned to yellow and red within 5 to 10 seconds.  (Robinson Depo, Vol. I, p. 59:2-16. 

An independent witness traveling directly behind Defendant, Nora Joyce, confirmed that when she saw Plaintiff the light in her direction was green.

Plaintiff asserts the light was green when he entered the intersection, and therefore he had the right-of-way.  Defendant was required to yield to him.  Vehicle Code § 21800(a) provides that the driver of a vehicle approaching an intersection shall yield the right-of-way to any vehicle which has entered the intersection.  Plaintiff who was riding a bike is considered the same as a person driving a vehicle.  Thus, it did not matter that the light turned red while Plaintiff was in the intersection.  Defendant should have yielded the right-of-way until the intersection was clear.  

Based on the evidence submitted, the Court finds Defendant has not sufficiently demonstrated a reasonable possibility Defendants will prevail at trial.  While there might be some comparative fault, Plaintiff testified that he entered the intersection when the light was green.  His presence in the intersection after the light had turned red does not mean Defendant is absolved of all liability.  Defendants have not submitted sufficient evidence for the Court to reach this conclusion. 

Accordingly, Defendants’ motion for undertaking is DENIED. 

Moving party to give notice.