Judge Michelle C. Kim, Case Number: 21STCV21968, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BRENTON LAMAR GRIFFIN,

Plaintiff(s),

vs.

CITY OF GARDENA, ET AL.,

Defendant(s).

)

CASE NO: 21STCV21968

[TENTATIVE] ORDER RE: MOTION FOR ORDER REQUIRING PLAINTIFF TO FILE UNDERTAKING

Dept. 31

1:30 p.m.

December 15, 2023

I. Background

Plaintiff Brenton Lamar Griffin (“Plaintiff”) filed this action against City of Gardena (“City”) and Eugene Winthrop Warren, Jr. for damages arising from a bus v. motor scooter accident.¿

The City now moves for an order requiring Plaintiff to post an undertaking in the sum of $62,515 pursuant to CCP § 1030.

Plaintiff opposes the motion, and the City filed a reply.

II. Motion to Require Plaintiff to File an Undertaking

Legal Standard

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).)

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the court’s order requiring it, and if plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action shall be dismissed as to the moving defendant. (Code Civ. Proc., § 1030, subd. (d).)

Discussion

The City submits evidence showing Plaintiff is a resident of Indiana, and has been for the past five years. (Dumont Decl., ¶ 4; Exh. A.) Plaintiff’s opposition to the motion does not dispute this.

A defendant 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.)

The City avers that Plaintiff attempted to pass the City’s bus on the right at the time of the accident, and alleges Plaintiff violated multiple Vehicle Codes such as failure to hold a valid driver’s license and failure to provide evidence of financial responsibility for the vehicle. The City argues that Plaintiff’s uninsured and unlicensed status is a factor to the incident, and that therefore Plaintiff is comparatively negligent in this case. In support, the City refers to its Exhibits C, E, and G. First, the Traffic Collision Report (TCR) is hearsay (Exh. E). Exhibit C is Plaintiff’s response to the City’s request for production of documents, which includes the TCR and motor scooter information (Exh. G.) However, just because Plaintiff was unlicensed, and the motor scooter involved in the incident was unregistered and uninsured, does not demonstrate a reasonable likelihood of a defense verdict. Although the standard of “reasonable possibility” is low, the City has not submitted substantial evidence to meet its burden.

Based on the foregoing, the City’s motion for an undertaking is DENIED.

Moving Defendant is ordered to give notice.

PLEASE TAKE NOTICE:

Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.
Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 14th day of December 2023


	Hon. Michelle Kim Judge of the Superior Court