Judge: Nathan R. Scott, Case: Kabat v. City of Irvine, Date: 2023-06-14 Tentative Ruling

Defendant State of California’s motion for undertaking is granted.  (See Code Civ. Proc., § 1030.) 

Plaintiffs Juraj Kabat and Silvia Kabatova shall post a $25,986.50 undertaking within 30 days.  (Code Civ. Proc., § 1030, subd. (d).)

Plaintiffs concededly reside out of state.  (See Code Civ. Proc., § 1030, subd. (b); see also Opp. at p. 2.)

Defendant has shown “a reasonable possibility that [it] will obtain judgment in the action.”  (Code Civ. Proc., § 1030, subd. (b)].)

Defendant has shown a reasonable possibility that the property was not dangerous or, even it was, that defendant lacked actual or constructive notice.  (See Gov. Code, § 835, subds. (a), (b); see also Khoury decl., Ex. D [Engelmann decl.] ¶¶ 48-54.) 

Plaintiffs have evidence to the contrary, of course (see e.g. Upton decl. Ex. 1 [Pham depo]) and may develop more evidence of defendant’s liability as discovery unfolds.  The court need not determine now whether it is more likely than not that defendant will prevail, only whether a reasonable possibility of that exists.

The bond amount is based on defense counsel’s declaration that defendant has incurred $986.50 in costs and expects to incur $25,000 more.  (See 4/20/23 Khoury decl. ¶¶ 8-9.) 

The bond amount does not include expert costs because (1) plaintiff did not decline any 998 offer before defendant filed this motion, and (2) defendant has not offered evidence of the reasonableness of its past or expected expert fees.

Plaintiff’s objection #2 is overruled.

Plaintiff’s objection #1 and defendant’s objections are immaterial to the disposition of this motion.

Defendant shall give notice.