Judge: Richard S. Whitney, Case: 37-2022-00051253-CU-MM-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Medical Malpractice Motion Hearing (Civil) 37-2022-00051253-CU-MM-CTL MYERS VS BEAR MD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT HOWARD BEAR, M.D.'S UNOPPOSED MOTION FOR UNDERTAKING PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 1030 is GRANTED.

Failure to file opposition to the motion indicates Plaintiff DEBORAH MYERS' ('Plaintiff') acquiescence that the motion is meritorious. (L.R. 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious']; See California Rules of Court, Rule 8.54(c).) Defendant HOWARD BEAR, M.D. ('Defendant') moves under CCP section 1030 to require Plaintiff to file 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.) Plaintiff does not dispute that Plaintiff now resides out of state nor that Defendant has met its burden to demonstrate a reasonable possibility of prevailing at trial. Defendant's unopposed motion is granted.

Plaintiff is ordered to post an undertaking in the amount of $43,250.

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