Judge Peter A. Hernandez, Case Number: 23PSCV01126, Date: 2023-09-26 Tentative Ruling

Plaintiff William Chen (“Plaintiff”) alleges that his mother, Alice Mao (“Mao”), went to the Altamed Health Services Corporation (“AHSC”) clinic in West Covina on October 23, 2019, April 7, 2020, July 22, 2020 and October 5, 2020 with complaints of weight loss and pain to her buttocks area, but was misdiagnosed with hemorrhoids. Mao was diagnosed with colorectal cancer on October 7, 2020 at Emanate Health Queen of the Valley Hospital (“Hospital”). Mao subsequently underwent two unnecessary surgical operations performed by Doctor Jared Sze Wei Wong (“Wong”) at Emanate Health Queen of the Valley Hospital, which left Mao in a vulnerable condition that led her to contract COVID-19 at a nursing home she had been sent to afterwards. Mao was rushed to the Emanate Health Inter-Community Hospital on December 21, 2020, but received negligent care from nursing staff while in the ICU there. Mao died on January 25, 2021.

On October 2, 2023, the court entered an “Order Determining Settlement Between Plaintiff and Defendant B.P. Care, Inc. dba Garden View Post-Acute Rehabilitation to be in Good Faith.”

On October 20, 2023, Plaintiff dismissed B.P. Care, Inc. (“B.P. Care”), with prejudice.

On October 31, 2023, Plaintiff filed a First Amended Complaint, asserting causes of action against AHSC, Wong, Emanate Health and B.P. Care for:

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

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

“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).)

Emanate Health moves the court for an order requiring Plaintiff to post security for Emanate Health’s current and projected costs to defend this lawsuit in the amount of $12,263.20, on the basis that Plaintiff is a resident of the state of Indiana and that there is a reasonable possibility that Emanate Health will obtain judgment against Plaintiff in this action.

Emanate Health claims that Plaintiff has confirmed his out of state residency via his responses to Emanate Health’s Form Interrogatories. (Hayati Decl., ¶¶ 3 and 4, Exhs. A and B [i.e., listing his “present residence address” as "716 N Niles Ave Suite 221, South Bend IN 46617” in response to No. 2.5(a); advising that he has lived at the aforesaid address “since June 11, 2021 to Present” in response to No. 2.5(c); listing his current employer as University of Notre Dame, 124 McKenna Hall, Notre Dame, IN 22 46556, (574) 631-4344 in response to No. 2.6 and advising that he has been seeking treatment from Saint Joseph County VA Clinic, 1540 Trinity Pl, 24 Mishawaka, IN 46545 since June 2021 to present for his alleged injuries in response to No. 6.4].).

Plaintiff, in turn, attests that his presence in Indiana is solely for the purpose of pursing his education at the University of Notre Dame (Chen Decl., ¶ 4), that his presence in Indiana is temporary (Id.), that he periodically returns to California (Id., ¶ 2), that various documents attached as Exhibit A to his declaration (including his driver’s license, voter registration, mortgage statement, home insurance statement, utility statements, bank account statements, etc.) support his residency in California (Id., ¶ 3), that he has no intention of establishing residency in Indiana in the future (Id., ¶ 4) and that his permanent address remains 557 N. Broadmoor Ave., West Covina, CA 91790 (Id.).

The court agrees with Emanate Health. The phrase “resides out of the State” utilized in Code of Civil Procedure § 1030 is construed as “referring to actual residence, rather than domicile.” (Myers v. Carter (1960) 178 Cal.App.2d 622, 626.) Plaintiff’s citation to California Code of Regulations Title 18, § 17014 is not controlling, inasmuch as the foregoing provision defines residency for purposes of the California Franchise Tax Board, and not for Code of Civil Procedure § 1030. The evidence reflects that, while Plaintiff may be domiciled in California, he is currently a resident of Indiana.

Emanate Health next claims that there is a reasonable possibility that it will obtain judgment in the action. Under this standard, Emanate Health is “not required to show that there [is] no reasonable possibility that [Plaintiff] c[an] win at trial, but only that it [i]s reasonably possible that [Defendant] w[ill] win.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4^th 1427, 1432.)

The court determines that Emanate Health has carried its burden of showing that there is a reasonable possibility it will obtain a judgment in its favor.[2] Code of Civil Procedure § 340.5 provides, in relevant part, that “[i]n an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” In this case, Mao died on January 25, 2021. Plaintiff filed his complaint, however, over two years later, on April 17, 2023.

The instant motion must be accompanied by an affidavit setting 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. A “prevailing party” includes “a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).) Allowable costs are identified in Code of Civil Procedure § 1033.5 and include, but are not limited to filing, motion, and jury fees, various deposition costs, trial exhibits, and court report fees as established by statute. Expert witness fees are likewise potentially available under Code of Civil Procedure § 998.

Emanate Health’s motion is accompanied by an affidavit from attorney Pamela Hayati (“Hayati”). Hayati sufficiently “set[s] forth the nature and amount” of the costs Emanate Health has incurred and expects to incur by the conclusion of case in Paragraphs 5 and 6, as per Code of Civil Procedure § 1030, subdivision (c).

The court grants the motion. Plaintiff is ordered to file an undertaking in the amount of $12,263.20 “not later than 30 days after service of the court's order.” (Code Civ. Proc., § 1030, subd. (d).)

[1] The motion was filed (and served via mail and email) on August 29, 2023 and originally set for hearing on November 16, 2023. On September 26, 2023, the court continued the November 16, 2023 hearing to November 21, 2023; notice was waived.

[2] Plaintiff has failed to address the element of “reasonable possibility of prevailing” whatsoever in his opposition.