Judge: Monica Bachner, Case: 19STCV10360, Date: 2023-03-22 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: March 22, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Upon reconsideration, Defendants Marriott International, Inc.’s and Noble-Interstate Management Group—California LLC’s motion for an undertaking is denied.  Accordingly Defendants’ Motion to dismiss Defendants from Plaintiff Lauren Potter’s operative first amended complaint for Plaintiff’s failure to post a bond is denied. 

          Defendant Defendants Marriott International, Inc. (“Marriott”) and Noble-Interstate Management Group—California LLC (“Noble-Interstate”) (collectively, “Defendants”) moved for an undertaking, which motion was granted in January, and thereafter moved for dismissal of Plaintiff Lauren Potter’s (“Potter”) (“Plaintiff”) operative first amended complaint (“FAC”) against Defendants for Plaintiff’s failure to post a bond.  (Supplemental Brief Dismissal, pg. 2.)

          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 January 9, 2023, this Court granted Defendants’ motion for an undertaking by Plaintiff to secure an award of Marriott’s costs and fees and ordered Plaintiff to post a bond in the amount of $5,000.00 within 30 days of the ruling.  (1/9/23 Ruling.)  On March 1, 2023, this Court heard Defendants’ ex parte application for an order granting Defendants’ motion to dismiss Plaintiff’s action.  The Court, pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108, sua sponte indicated it was considering reconsidering its 1/9/23 Ruling ordering an undertaking on the basis that Plaintiff has not established her indigency given that she had provided information that she was on food stamps.  (3/1/23 Minute Order.)  Accordingly, the Court set this matter for hearing on March 22, 2023, and allowed supplemental briefing. 

Undertaking

C.C.P. §1030 provides:

(a)   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.

(b)  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.

(c)   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).)

          As previously determined, Defendants have demonstrated that Plaintiff resides out of state and that there is a reasonable possibility that they will obtain judgment in the action.

“The party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief.”  (Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614.)  “If an applicant fails to provide the information required by the application form or if the court has good reason to doubt the truthfulness of the factual allegations in the application, the applicant may be required to submit additional documentation.”  (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 433.)

If a Plaintiff is indigent, “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.” (C.C.P. § 995.240.)

Plaintiff has met her burden to establish indigency.  She originally submitted a conclusory declaration that “I am an indigent disabled person,” without factual support.  (7/20/22 Decl. of Potter ¶2.)  Plaintiff’s December 22, 2022, declaration stated Plaintiff was on disability, receives food stamps, earns $842 from wages as her only income, and has a rental payment of $400.00 per month, omitting references to income or expenses and providing no evidence of efforts to obtain a bond.  (12/22/2022 Decl. of Potter ¶¶2-6.)  Plaintiff’s February 23, 2023, declaration declares she qualifies for indigency based upon the fact that she receives food stamps, has received food stamps on and off since she was in her early 20s, and has consistently had food stamps for the past three years.  (2/23/23 Decl. of Potter ¶5.)  Plaintiff’s declaration also attaches a copy of Plaintiff’s food stamps card and a letter from the Warren County Department of Social Services concerning her food stamps and a statement showing her social security disability payments will increase in 2023.  (2/23/23 Decl. of Potter ¶9, Exh. 1.)  On February 24, 2023, Plaintiff filed a request for a fee waiver which was granted.  (2/27/23 Fee Waiver Order.)

Defendant argues that to receive relief from a bond under C.C.P. §1030, a litigant must attain (1) in forma pauperis status and (2) assert a non-frivolous claim.  (Supp. Brief, pgs. 9-10 citing Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1436; Ferguson v. Keays (1971) 4 Cal.3d 649, 657.)    However, this overstates the law.  As recognized in Alshafie v. Lallande, supra,  171 Cal. App. 4^th 421, “[e]ven if the defendant establishes the grounds for an undertaking, the trial court may waive the requirement if the plaintiff establishes indigency.... [¶] The public policy underlying an indigent's entitlement to a waiver of security costs is essentially ‘access trumps comfort.’ [Citation.] In ruling indigents are entitled to a waiver of security for costs, [the State is] saying one party's economic interest in receiving its costs of litigation should it win cannot be used to deny an indigent party his fundamental right of access to the courts. [Citations.]” (Id.  at pg. 429 [internal quotation marks omitted].)

Accordingly upon reconsideration, Defendants’ request for an order for Plaintiff to post an undertaking is denied.  Defendants’ motion to dismiss Defendants from Plaintiff’s FAC is denied.

Given the ruling, the Court will consider continuing the trial date.

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court