Judge Olivia Rosales, Case 19STCV28159 2022-08-17 Tentative Ruling

Judge: Olivia Rosales, Case: 19STCV28159, Date: 2022-08-17 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 19STCV28159 Hearing Date: August 17, 2022 Dept: SEC

KRAFT v. RANDOLPH HOTEL

CASE NO.: 19STCV28159

HEARING: 08/17/22

JUDGE: OLIVIA ROSALES

ADD ON

TENTATIVE ORDER

I. Defendants NK PROPERTIES, INC.; MIKE PATEL; and NINETTE PATEL’s Motion to Reclassify is DENIED.

II. Defendants NK PROPERTIES, INC.; MIKE PATEL; and NINETTE PATEL’s Motion for an Order Requiring Plaintiff to File an Undertaking Pursuant to CCP §1030 is GRANTED.

Defendants to give Notice.

These matters were originally set for hearing on August 3, 2022. Without leave of Court, Plaintiffs filed untimely Oppositions on August 1, 2022. Although the Oppositions were due by no later July 21, 2022, the Court waived the procedural defect in the interests of judicial efficiency. (CCP §1005(b).) However, in fairness to the Moving Parties, the Court CONTINUED these matters to August 17, 2022 to provide Defendants with the opportunity to file Reply documents. The Court has now reviewed and considered all documents filed prior to the date of this hearing, including Defendants’ Replies filed on August 10, 2022.

Motion to Reclassify:

Defendants NK PROPERTIES, INC.; MIKE PATEL; and NINETTE PATEL (collectively “Defendants”) argue that Plaintiff’s case is incorrectly classified as an unlimited jurisdiction case and should be reclassified as a limited jurisdiction case because Plaintiff has failed to establish sufficient damages to justify the case as other than a limited case. (See Walker v. Sup. Ct. (1991) 53 Cal.3d 257, 269.) Defendants correctly note that attorney’s fees are not included in the classification determination and contend that punitive damages should be stricken from the operative pleading (as argued in their pending Motion to Strike).

The Walker Court delineated the standard for determining whether a case should be reclassified pursuant to CCP §396, holding that a matter may be transferred when: (1) the absence of jurisdiction is apparent before trial from the complaint, petition, or related documents, or (2) during the course of pretrial litigation, it becomes clear that the matter will necessarily result in a verdict below the superior court jurisdictional amount and the court affords the parties an opportunity to contest the transfer. (Walker v. Sup. Ct. (1991) 53 Cal.3d 257, 262.) The test is whether lack of jurisdiction is clear or “virtually unattainable.” (Id. at 269.) “The court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount which he has demanded. [Citation.].” (Id. at 270.)

In the operative Second Amended Complaint, Plaintiff alleges that Plaintiff “[h]as suffered and continue[s] to suffer physical injuries…and emotional injuries (including, but not limited to, severe embarrassment, annoyance, discomfort, pain, apprehension, tension, anxiety, and emotional distress) as a direct result of her stay at the RANDOLPH HOTEL.” (SAC ¶45.) The Court cannot value Plaintiff’s emotional distress, which she alleges is ongoing. While attorneys’ fees are not used as part of the calculation, and while the request for punitive damages was previously stricken from prior complaints, the Court cannot find, as a matter of law, that the case will necessarily result in a verdict below $25,000.00.

The Motion is DENIED.

Motion for an Order Requiring Plaintiff to File an Undertaking:

CCP §1030 provides, in pertinent part: “(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 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.” (Id.)

In her untimely Opposition, Plaintiff states that she “recently moved to California.” (Kraft Decl., ¶8.)

In Reply, Defendants argue that Plaintiff has not provided sufficient evidence to show that she is a resident of California, or that she has an actual physical residence in California. The Court agrees. The term “residence” is frequently regarded as equivalent to “domicile,” but the proper construction depends upon the purpose of the particular statute. The purpose of CCP §1030, to cope with the difficulty of enforcing judgments against persons not physically within the court’s jurisdiction, is best served by construing the phrase as referring to actual residence rather than legal domicile. (See Myers v. Carter (1960) 178 Cal.App.2d 622.)

Here, Plaintiff’s Declaration submitted in Opposition does not identify: a residence address, a place of employment, or an indication to permanently reside in California. As argued by Defendants, Plaintiff has maintained a physical residence in, and lived in North Dakota when this action was filed in 2019, and when the Second Amended Complaint was filed on June 23, 2022. (Second Amended Complaint ¶3.) Plaintiff’s Declaration fails to sufficiently show that she now resides in California or intends to permanently reside in California.

In obtaining an order for an undertaking under CCP §1030, Defendants “are not required to show that there [is] no possibility that [plaintiff] [can] win at trial, but only that it [is] reasonably possible that [Defendants] will win.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

Plaintiff alleges that “Hotel management authorized and ratified housekeeping staff at the hotel to either not change bed skirts on a regular basis or to not inspect and ensure that bed skirts are free from a [bedbug] infestation in Plaintiff’s room prior to Plaintiff’s arrival.” (SAC ¶32.) “Defendants… rented the room to Plaintiff despite having knowledge, as of August 11, 2017, that there was a bedbug infestation present in the hotel and specifically, Plaintiff’s Room. Defendants… concealed this bedbug infestation and deliberately chose not to notify, or otherwise failed to notify Plaintiff of the presence of [bedbugs] in Plaintiff’s room upon her arrival.” (SAC ¶43.)

To rebut Plaintiff’s allegations, Defendants argue that Plaintiff’s discovery responses to date, offer no evidence that Defendants had actual or constructive notice of bed bugs in the room prior to Plaintiff’s alleged injury.

Having reviewed Plaintiff’s discovery responses, the Court finds that Plaintiff has not conclusively established Defendants’ knowledge of bedbugs at the hotel prior to Plaintiff’s stay there.

The Court finds that Defendants have met their burden of showing that there is a reasonable possibility that they may obtain judgment in their favor in this action.

The Motion is GRANTED. The Court ORDERS Plaintiff to post a bond in the amount of $5,000.00 in accordance with CCP §1030 within 10 days of the Court’s issuance of this ruling. In the event that Plaintiff fails to timely post the required bond, Defendants may apply for dismissal of the action via ex parte application.