Judge: Richard S. Whitney, Case: 37-2022-00030076-CU-PO-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00030076-CU-PO-CTL KIDD VS NORTHROP GRUMMAN CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT NORTHROP GRUMMAN CORPORATION FOR AN ORDER REQUIRING UNDERTAKING OF COSTS IN THE AMOUNT OF $63,752.85 PURSUANT TO C.C.P.

§1030 is GRANTED.

Defendant NORTHROP GRUMMAN CORPORATION ('Defendant') moves under CCP section 1030 to require Plaintiff Clifford Kidd's ('Plaintiff') to file an undertaking. Defendant and Cross-Complainant PACIFIC BUILDING GROUP ('PACIFIC') joins the motion but requests a separate amount of $28,845 as an undertaking. CCP section 1030(a) provides: 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(a).) CCP section 1030(a) provides: 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(b).) Defendant is not required to show that there is no possibility that Plaintiff could win at trial, but only that it is reasonably possible that Defendant would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.) Defendant cites the Customer Claim Waiver and Release as support for Defendant's chance of success in this matter. The Customer Claim Waiver and Release provides Plaintiff, who signed the waiver, waived any right to make a claim against any Allied Universal (Plaintiff's employer) customer, which included Defendant. Plaintiff asserts the waiver is against public policy. The Court is unpersuaded that Plaintiff has demonstrated the waiver is against public policy, as a matter of law, such that Defendant does not have a reasonable possibility of winning. The Court finds Defendant has sufficiently demonstrated that Defendant has met its burden to demonstrate it has a reasonable possibility of prevailing at trial. The Court also finds Defendant has demonstrated Plaintiff is not a resident of Calendar No.: Event ID:  TENTATIVE RULINGS

3073152  62 CASE NUMBER: CASE TITLE:  KIDD VS NORTHROP GRUMMAN CORPORATION [IMAGED]  37-2022-00030076-CU-PO-CTL California.

PACIFIC provides discovery responses and evidence that indicate PACIFIC did not own, control, or maintain the subject scaffold at any time while performing its contracted work at the subject premises, including the day of the incident. Plaintiff does not provide any evidence nor discovery responses to bring PACIFIC's evidence into question. Rather, Plaintiff states discovery is ongoing. The Court finds PACIFIC has demonstrated it has a reasonable possibility of winning at trial and that Plaintiff is not a resident of California.

Plaintiff asserts he is indigent, such that the bond should be waived by this Court. 'Even if the defendant establishes the grounds for an undertaking, the trial court may waive the requirement if the plaintiff establishes indigency.' (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429.) '[W]hen the plaintiff has, for whatever reason, elected not to seek in forma pauperis status, there is no rigid standard for the requisite showing of indigency; and, as discussed, it ultimately remains within the court's discretion to determine whether to grant a waiver.' (Id. at 434.) '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.) '[T]he plaintiff should make a prima facie showing that he has unsuccessfully attempted to obtain the required undertaking or that he is unable to furnish it.' (Baltayan, supra, 90 Cal.App.4th 1427, 1434.) Plaintiff has not met his burden to show entitlement to relief.

'Indigent person' means a person whose income is (1) 125 percent or less of the current poverty threshold established by the United States Office of Management and Budget, or (2) who is eligible for Supplemental Security Income or free services under the Older Americans Act or Developmentally Disabled Assistance Act. With regard to a project that provides free services of attorneys in private practice without compensation, 'indigent person' also means a person whose income is 75 percent or less of the maximum levels of income for lower income households as defined in Section 50079.5 of the Health and Safety Code. For the purpose of this subdivision, the income of a person who is disabled shall be determined after deducting the costs of medical and other disability-related special expenses.

(Bus. & Prof. Code, § 6213(d).) Plaintiff does no more than mention past earning limitations and states he cannot afford the high undertaking amount. Plaintiff does not demonstrate he is indigent. While Plaintiff state he 'cannot even cover [his] basic living expenses,' Plaintiff also states he is paying 'approximately $7,000.00 per semester' for his daughter's college tuition. Plaintiff also fails to provide any information about his wife's financial situation. While Plaintiff asserts that the undertaking should be customized to his financial situation, Plaintiff does not provide enough information to the Court for the Court to make a such a customization. The Court does not know if Plaintiff has savings nor whether he receives income from other sources. The motion is granted. The Court finds the request for bonds in the amount of $63,752.85 as to Defendant and $28,845.00 as to PACIFIC are reasonable given the estimates of costs that will be incurred through trial. The motion and joinder are granted.

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