Judge: Peter A. Hernandez, Case: 22PSCV01340, Date: 2023-07-20 Tentative Ruling

Case Number: 22PSCV01340    Hearing Date: October 11, 2023    Dept: K

Defendant TARPWR, Inc. dba Flappy Jack’s Pancake House’s Motion to Dismiss Pursuant to California Code of Civil Procedure § 1030 is DENIED.

Background   

Plaintiff Sanaa Almarayati (“Plaintiff”) alleges as follows:

On May 27, 2021, Plaintiff sustained injuries in a trip and fall while walking at Flappy Jack’s Pancake House located at 640 W Rte 66, Glendora, CA 91740.

On October 18, 2022, Plaintiff filed a complaint, asserting causes of action against TARPWR, Inc. dba Flappy Jack’s Pancake House (“TARPWR”) and Does 1-30 for:

1.                  Premises Liability

2.                  General Negligence

On November 10, 2022, TARPWR filed a cross-complaint, asserting causes of action against Roes 1-20 for:

1.                  Total Indemnity

2.                  Declaratory Relief—Implied Partial Indemnity

3.                  Declaratory Relief—Equitable Apportionment

4.                  Express Indemnity

A Case Management Conference is set for November 17, 2023.

Legal Standard

“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 . . .” (Code Civ. Proc., § 1030, subd. (a).) “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.” (Code Civ. Proc., § 1030, subd. (c).)  

“The plaintiff shall file the undertaking not later than 30 days after service of the court's order requiring it or within a greater time allowed by the court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff's action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.” (Code Civ. Proc., § 1030, subd. (d) (emphasis added).)  

Discussion

TARPWR moves the court for an order dismissing this matter for Plaintiff’s failure to comply with the court’s order to post a security undertaking.

TARPWR’s counsel Sandra Av (“Av”) represents as follows:

On July 24, 2023, the court entered an “Order Re: Motion for a Security Undertaking Pursuant to California Code of Civil Procedure Section 1030” (“Order”). (Av Decl., ¶ 9, Exh. A.) The Order provides, in relevant part, that “Plaintiff is ordered to post a security bond in the amount of $30,235.00 within 30 days of this order.” (Id. [emphasis in original].) On July 27, 2023, TARPWR served Plaintiff with a “Notice of Order.” (Id., ¶ 10, Exh. B.) Plaintiff has failed to file an undertaking as of the September 11, 2023 date of her declaration. (Id., ¶ 11).

Plaintiff’s counsel Z. Dean Hakkak (“Hakkak”), in turn, represents that the “undertaking process” has taken longer than anticipated; that, as of the September 28, 2023 date of his declaration, this office has submitted a “Judicial Bond Application” to a local surety company, Noddle Surety & Insurance Services, Inc.; and that he is confident his office will file the undertaking in advance of the date set for hearing on the instant motion. (Hakak Decl., ¶ 3).

The instant motion may well be moot as of the time of the hearing, based upon Hakkak’s above representation; nevertheless, if the motion is not moot by that time, the court will deny same, inasmuch as Plaintiff is in the process of compliance.