Judge: Michelle C. Kim, Case: 21STCV20203, Date: 2023-04-14 Tentative Ruling

Case Number: 21STCV20203    Hearing Date: April 14, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Yvette Ortiz (“Plaintiff”) filed this action against Defendants Culver City Mall, LLC (erroneously sued as Westfield LLC), Alicia Williams, and Nationwide Janitorial Services, Inc. for damages arising from a slip and fall. 

Defendants Culver City Mall, LLC and Nationwide Janitorial Services, Inc. (“Defendants”) now move for an order requiring Plaintiff to post an undertaking in the sum of $20,000 pursuant to CCP § 1030. Plaintiff opposes the motion, and Defendants filed a reply.

Defendants assert Plaintiff is a resident of Virginia, and Defendants can establish a reasonable probability of prevailing in this action because a jury can reasonably find there that was no dangerous condition, that Defendants properly maintained the premises, and that there was no notice, actual or constructive, of a dangerous condition.

In opposition, Plaintiff does not dispute that she resides out of state, but contends that the motion is premature as certain discovery is still outstanding, and that Defendants have not shown a reasonable possibility of obtaining judgment based on picture that is bad quality and zero bathroom logs. Further, Plaintiff argues that she is indigent and therefore Section 1030 should not be applied against her.

In reply, Defendants argue that the motion is ripe and Plaintiff has not submitted any admissible evidence.

2.Evidentiary Objections

Defendants’ evidentiary objections are SUSTAINED. However, the Court notes that Plaintiff submitted a new declaration thereafter.

3.  Motion to Require Plaintiff to File an Undertaking

In an action or special proceeding brought by a nonresident plaintiff, the defendant may at any time move for an order requiring the plaintiff to post security.   (CCP §1030(a).)  The stated grounds for the motion are that the plaintiff resides out of state or is a foreign corporation, and there is a reasonable possibility that the moving defendant will obtain a favorable judgment. (CCP §1030(b).)  The motion can be brought at any time.  (CCP §1030(a).) The trial court has no authority to deny the motion on the ground that it is untimely.  (Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.)  The motion is required to be noticed.  (CCP §1030(a).) The notice of motion must be served in accordance with CCP §1005(b). The motion must be accompanied by a supporting affidavit or declaration which establishes the stated grounds for the motion and sets forth the nature and amount of the costs and attorney fees the defendant has incurred and expects to incur until the action is concluded.  (CCP §1030(b).)  It must also be accompanied by a memorandum of points and authorities.  (CCP §1030(b), CRC 313(a).)

The plaintiff may pursue a number of tactics in opposing a motion for security. These may include:

(1) proof that the plaintiff is not a nonresident;

(2) showing the plaintiff's indigency (CCP §995.240); and

(3) arguing the defendant's failure to make an adequate prima facie showing of a reasonable possibility of success in the action.

In cases where adequate grounds exist for granting the motion for security, the plaintiff can still challenge the amount of the costs and attorney fees requested by the defendant. The security can be ordered only for "reasonable" costs and attorney fees, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision.  (CCP §1030(a).)

            Here, it is undisputed that Plaintiff is an out of state resident. Thus, the first requirement is satisfied.

Second, Defendants must show a reasonable possibility of prevailing on the merits at trial.  The defendant is not required to show that there is no possibility that the plaintiff can win at trial, or that it is reasonably likely that the defendant will prevail, only that it is reasonably possible that the defendant will win.  The court must determine whether there is substantial evidence to support such a determination.  (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432-33.) 

Here, there does not appear to be sufficient evidence to make this determination. As Plaintiff points out, the picture of the bathroom stall is very poor quality. (Lara Decl., Exh. C.) Thus, the Court cannot find that this would show a reasonable possibility that no dangerous condition existed. Further, the Court also cannot find that the lighthouse report shows a reasonable possibility that Defendants maintained the premises and had no notice of a dangerous condition. First, there is no evidence of when the injury occurred, and the lighthouse report is limited in time from 11:01 to 12:11. (Lara Decl., Exh. B.) Second, there is no explanation as to what the lighthouse report is or what it indicates. Defendants state that “Defendants’ Lighthouse report confirms that janitorial customers were entering and exiting the restroom regularly throughout the day of the incident.” (Motion, p. 6.) What are janitorial customers? What does entering and exiting the restroom have to do with its maintenance? There is no evidence that they were entering to maintain it. This statement is also only provided in the motion, and thus is not admissible evidence.

The Court also notes that Plaintiff has provided proof of indigency. (See Ortiz Decl.) The Court is not inclined to require an undertaking by an indigent Plaintiff.

Plaintiff also requests sanctions but does not provide a legal basis for requesting such. Thus, the request is denied.

            The motion is DENIED.

Defendants are ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.

The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance.

Dated this 14^th day of April, 2023