Judge: Monica Bachner, Case: 19STCV10360, Date: 2023-01-09 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV10360    Hearing Date: January 9, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Marriott International, Inc.’s and Noble-Interstate Management Group—California LLC’s motion for an undertaking by Plaintiff Lauren Potter to secure an award of Marriott’s costs and fees is granted.  Plaintiff is to post a bond in the amount of $5,000.00 within 10 days.

          Defendant Defendants Marriott International, Inc. (“Marriott”) and Noble-Interstate Management Group—California LLC (“Noble-Interstate”)[1] (collectively, “Defendants”) move for an order requiring an undertaking by Plaintiff Lauren Potter (“Potter”) (“Plaintiff”) to secure an award of Marriott’s costs and fees.  (Amended Notice of Motion, pg. 2; C.C.P. §1030.)

          Background

          On March 25, 2019, Plaintiff filed her complaint against Marriott and The Westin Long Beach.  On April 5, 2021, Plaintiff filed her first amended complaint (“FAC”) alleging two causes of action against Defendants: (1) negligence, and (2) public nuisance.  On June 22, 2022, Defendant Marriott initially filed its motion for an undertaking.  On August 1, 2022, Defendant Marriott re-filed its motion for this December 12, 2022 hearing.  On October 31, 2022, Defendant Noble-Interstate filed its answer. On November 14, 2022, Defendants jointly filed the amended instant motion for undertaking.  On November 30, Plaintiff filed her opposition to the instant motion.  Defendants filed their reply on December 1, 2022.  On December 12, 2022, this Court continued a hearing on this motion to allow for Plaintiff’s supplemental declarations setting forth deficiencies in her declaration and any supplemental pleading, and allowed Defendants to file a response.  (12/12/22 Minute Order.)  On December 22, 2022, Plaintiff timely filed her supplemental briefing and declaration in opposition.  On December 27, 2022, Defendants timely filed their response.

Undertaking

C.C.P. §1030 provides:

1. 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.

    

2. The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.

    

3. 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.

(C.C.P. §1030(a)-(c).)

Pursuant to C.C.P. §1030(b), Defendants have demonstrated Plaintiff resides out of state and works in New York in the construction industry.  (Decl. of Austin ¶14, Exh. D at 16:13-22, 18:5-16.) 

Pursuant to C.C.P. §1030(b), Defendants have demonstrated there is a reasonable possibility they will obtain judgment in this action.  (Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914.)  In meeting this second requirement of C.C.P §1030(b), the court in Shannon v. Sims recognized “that it is impossible to predict in advance the outcome of a trial by jury,” but, a defendant may “present the best evidence available to divine the possible outcome of the trial.”  (Id.) 

Plaintiff’s deposition testimony indicates that the motel she stayed at on March 25-26, 2017 was the location where the bed bug incident occurred, based on Plaintiff’s description of the motel room along with the video clips taken during her stay.  (Decl. of Austin ¶¶14, 16, Exh. D at 22:24-23:2, 23:8-25, 24:10-18, 26:2-9, 30:17-31:3, 39:7-40:9, 41:7-42:2, 45:6-10, 47:10-18, 54:11-55:10, Exh. E.)  At the conclusion of Plaintiff’s deposition, Plaintiff was shown a photograph from The Westin Long Beach located at 333 East Ocean Boulevard, Long Beach, California 90802 (“Subject Property”), which was marked as Exhibit C to Plaintiff’s deposition.  (Decl. of Austin ¶¶14, 16, Exh. D at 54:11-55:10, Exh. E.) When asked if the image of The Westin Long Beach appeared to be the motel at which the bed bug incident occurred, Plaintiff responded, “…I don’t think that’s the place….”  (Decl. of Austin ¶¶14, 16, Exh. D at 54:11-55:10, Exh. E.)  Plaintiff’s statements demonstrate that Plaintiff does not identify the Subject Property as the location where the bed bug incident took place.

          The Declaration of Jeff Bonds, a twenty-three-year employee at the Subject Property states that guest rooms are from the 4th through 16th floors, and access to the hotel rooms is from the inside of the building.  (Decl. of Bonds ¶6.)  Bonds declares there are no security bars on any of the guest room windows.  (Decl. of Bonds ¶7.)  Bonds declares after reviewing the clips taken by Plaintiff in the room where the bed bug incident took place, the clips appear to depict a motel room that does not depict any guest room or other portion of the Subject Property.  (Decl. of Bonds ¶8.)  Bonds declares that on or about August 22, 2022, he searched the names Lauren Potter, Nicholas Pacyna, and Mason Pacyna in the database for past hotel guests at the Subject Property, which includes March 2017, and the search did not yield results for a registered guest at the Subject Property under one of those three names.  (Decl. of Bonds ¶9.)[2]  Bonds’ declarations demonstrate that Plaintiff’s identification of the room where the bed bug incident occurred was not located in the Subject Property, and Plaintiff has never been a guest at the Subject Property.  Defendants have submitted substantial proof they have a reasonable possibility of prevailing on the merits, and the grounds for the motion have been established.

          Defendant requests a bond be in the amount of not less than $5,000.00, for filing fees, subpoenas, and depositions associated with the defense of the case, and are costs authorized under C.C.P. §1033.5.  (Decl. of Austin ¶18.)

          Plaintiff argues she is indigent and disabled, and it would be unconstitutional for this Court to enforce such a ruling in violation of the equal protection clause and due process.  (See Decl. of Potter ¶2.) 

C.C.P. § 995.240 provides: 

“The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.” 

In Fuller v. State of California, where the trial court ordered the plaintiff to post an undertaking, the Court of Appeals determined the trial court did not abuse its discretion when it refused to waive the undertaking due to the plaintiff’s claim of indigency.  (Fuller v. State of California (1969) 1 Cal.App.3d 664, 670.)  The Fuller Court concluded that although the plaintiff had demonstrated her limited means, the plaintiff had made no showing that she had made any attempt to obtain sureties or was unable to do so.  (Id.)  Here, as in Fuller, Plaintiff does not support her statement of indigency with factual support or the basis for which she claims indigency, but rather asserts conclusory statements that are insufficient to evaluate Plaintiff’s claim of indigency.  (See Decl. of Potter; Supp.-Decl. of Potter.)  

Further, Plaintiff does not argue or offer factual support that she cannot obtain a bond in the amount requested by Defendants, nor that she cannot obtain personal sureties.  (See Decl. of Potter; Supp.-Decl. of Potter.)  Similarly, in Venice Canals Resident Home Owners Association v. Superior Court, the court noted that while the plaintiff might arguably have established his indigency, the court did not abuse its discretion by refusing to waive a stay bond because the plaintiff, “made no showing that he cannot obtain a stay bond. He has not even made a showing that he made any attempt to obtain a bond. Under such circumstances it cannot be said that as a matter of law the trial court abused its discretion in denying [the plaintiffs] application for a waiver of the stay bond.”  (Venice Canals Resident Home Owners Association v. Superior Court (1977) 72 Cal.App.3d 675, 684.) Finally, Plaintiff asserts that she is “easily able to travel back and forth between New York and any part of California,” contradicting her claim of indigency.

          Accordingly, Defendants’ request for an order for Plaintiff to post an undertaking for costs and fees is granted.  Plaintiff is to post a bond in the amount of $5,000.00 within 10 days.

Dated:  January _____, 2023

Hon. Monica Bachner

Judge of the Superior Court