SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Gerardo Antonio (“Plaintiff”) filed this action against VCA Inc. (“VCA”), erroneously sued herein as VCA West Los Angeles Animal Hospital, and Selena Inouye (“Inouye”) for damages relating to a dog bite incident.¿Plaintiff brings two causes of action for negligence and for strict liability. 

On September 6, 2023, Inouye filed the instant motion for an order requiring Plaintiff to post an undertaking in the sum of $58,000 pursuant to CCP § 1030. Plaintiff opposes the motion.  

On September 25, 2023, Plaintiff filed a motion for relief from the Court’s previous order to post bond related to VCA. The motion for relief is set to be heard on the same date as Inouye’s motion for undertaking. The Court notes that it granted VCA’s motion for summary judgment on December 4, 2023, thereby rendering Plaintiff’s motion for relief from posting bond moot.  

Therefore, the Court will only address Inouye’s motion for undertaking.  

 

II. 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).) 

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).) 

 

A. Plaintiff’s Status as a Non-Resident 

Inouye submits evidence showing Plaintiff is a resident of Nevada. (Safarian Decl. Exh. A.) Plaintiff does not dispute this.  

 

B. Defendant’s Prima Facie Burden of Showing Reasonable Possibility of Prevailing  

Inouye asserts that Plaintiff speculates the bite on his hand was from the small dog and not his own. Inouye argues her dog has no prior history of biting, and that it was Plaintiff’s dog as the aggressor because Plaintiff’s dog had Inouye’s dog’s head in its mouth. Inouye refers to the same arguments raised in VCA’s motion for undertaking, arguing that there is a reasonable possibility of Inouye prevailing because  a trier of fact may conclude that Plaintiff assumed the risk of being bitten when he intervened between two fighting dogs.  

Plaintiff argues the assumption of risk doctrine is not applicable to dog bites, and makes arguments about duty of care owed by VCA, rather than by Inouye. However, contrary to Plaintiff’s argument, the Court notes that the defense of assumption of the risk is available despite the language of Civil Code, section 3342. (Burden v. Globerson (1967) 252 Cal.App.2d 468, 470.) “In adopting section 3342 of the Civil Code, the Legislature did not intend to render inapplicable such defenses as assumption of risk or wilfully invited injury. Therefore those defenses are available in all proper cases.” (Gomes v. Byrne (1959) 51 Cal. 2d 418, 420.) Inouye 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.)   

Defendant provides evidence by way of Plaintiff’s deposition transcript excerpts (Safarian Decl.; Exh. A.), wherein Plaintiff testified that prior to the incident, his dog Wilson had a history of aggression, including biting another animal. Further, Plaintiff did not actually see which dog bit each other first, and when he turned around, he already saw his dog with the smaller dog’s head in its mouth. Plaintiff then attempted to pry open Wilson’s jaws to release the other dog and was bitten in the process of this 20 to 30 second scuffle. Defendant has met its prima facie showing of possibly prevailing. A trier of fact may conclude that Plaintiff assumed the risk of being bitten by either of the two dogs, regardless of which dog instigated the action first, when Plaintiff stuck his hand in between in an attempt to get Plaintiff’s dog to release the head of the smaller dog. Accordingly, the Court finds Defendant has met its low burden of showing a reasonable possibility of prevailing exists. 

 

C. Plaintiff's Indigency (CCP §995.240) 

Bond may be waived for indigent litigants who make a showing that they are unable to obtain sufficient sureties to post an undertaking, and that such an order would limit their access to the courts.  (Garcia v. Santana (2009) 174 Cal.App.4th 464, 472 [“The fact that a litigant had some limited resources was insufficient to deny such a person the right to proceed, an entitlement grounded ‘in a common law right of access to the courts and constitutional principles of due process’”].)  

Where a plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Code Civ. Proc., § 1030. (Bank of America v. Superior Court (1967) 255 Cal.App.2d 575, 578.) However, the plaintiff should make a prima facie showing that he has unsuccessfully attempted to obtain the required undertaking or that he is unable to furnish it. (Fuller v. State of California (1969) 1 Cal.App.3d 664, 668.) 

Plaintiff only declares that he owns no real property and has no money saved. In support of his financial condition, Plaintiff provides a barely legible FW-001. However, Plaintiff also declares that it is possible for him to post bond “if the bond amount were only the present $35,000 or so.” (Antonio Decl. ¶ 4.) Therefore, in light of Plaintiff’s representation, the Court will limit the bond to the range feasible for Plaintiff.  

 

D. Reasonable Costs and Attorney Fees 

Should Inouye prevail in this lawsuit, Inouye intends to pursue costs. Defendant submits an affidavit requesting a total of $58,000 based on filing costs, deposition transcript and court reporter fees, fees paid to opposing medical experts and fees paid to Inouye’s experts, jury fees for trial, court reporter fees for trial, and exhibits. Inouye’s itemization of estimated costs does not include any request for attorney’s fees, and thus Plaintiff’s argument that any request for attorney fees should be rejected is not at issue.  

However, in consideration of Plaintiff’s limited financial ability and the amount he declares he is able to furnish, the Court will reduce Inouye’s counsel’s estimated costs to a range within Plaintiff’s financial means.  

 

III. Conclusion 

Plaintiff’s Motion for relief from undertaking is moot. 

Inouye’s Motion for an undertaking GRANTED and reduced from $58,000 to $35,000 to be posted within 30 days of the date of this Order. Thus, Plaintiff is ordered to post bond in the amount of $35,000 within thirty (30) days or risk dismissal of his action.    

 

Moving parties are ordered to give notice.   

 

 

Dated this 11th day of December 2023