Judge: Ronald F. Frank, Case: 22TRCV01084, Date: 2024-01-30 Tentative Ruling
Case Number: 22TRCV01084 Hearing Date: January 30, 2024 Dept: 8
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HEARING DATE: January 30, 2024
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CASE NUMBER: 22TRCV01084
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CASE NAME: Christian
Kawaharada v. Los Angeles World Airports, et al.
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MOVING PARTY: Defendant, City of Los Angeles (which includes Los Angeles
World Airports, a department within the City of Los Angeles)
RESPONDING PARTY: Plaintiff, Christian Kawaharada
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TRIAL DATE: January 27, 2025
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MOTION:¿ (1) Motion for Undertaking
Tentative Rulings: (1) ARGUE. While there may be a reasonable possibility
that Defendant will prevail in this premises liability case, the amount of the
requested undertaking seems excessive since court costs in a garden variety
slip and fall case are perhaps 20% of the $53k amount the motion seeks
I. BACKGROUND¿¿
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A. Factual¿¿
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On October 27, 2022, Plaintiff, Christian Kawaharada
(“Plaintiff”) filed a Complaint against Defendant, Los Angeles World Airports,
City of Los Angeles, County of Los Angeles, California Department of
Transportation, and DOES 1 through 50. The Complaint alleges a cause of action
for: (1) Premises Liability.
The Complaint alleges that the “Defendants negligently, recklessly
and/or wantonly owned, maintained, managed, operated, controlled and
safeguarded the premises at or near 1 World Way, Los Angeles, CA 90045, such
that an unknown object and/or substance and/or liquid was allowed to exist and/to
accumulate, thereby causing the area to be slippery and constituting a
dangerous condition, such that Defendants failed to barricade the area, failed
to warn of the dangerous condition on the premises, and/or prematurely and/or
incorrectly allowed foot traffic in the area where the dangerous condition
existed, rendering the area on said premises and legal causing Plaintiff to be
injured in the following matter: Plaintiff was walking at or near 1 World Way when he
slipped due to an unknown object and/or substance and/or liquid causing him to
fall and sustain injuries. The conduct of the Defendants and/or its employees
were below the standard of care and was the proximate cause of Plaintiff’s
injuries.”
B. Procedural¿¿
On November 28, 2023, Defendant, City of
Los Angeles (which includes Los Angeles World Airports) (“City”) filed a Motion
for Order For Undertaking. On January 17, 2024, Plaintiff filed an opposition.
On January 22, 2024, City filed a reply brief.
II. ANALYSIS
A. Legal Standard
In
an action or special proceeding brought by a nonresident plaintiff, the
defendant may at any time move for an order requiring the plaintiff to post
security. (CCP §1030(a).) The stated grounds for the motion
are that the plaintiff resides out of state or is a foreign corporation, and
there is a reasonable possibility that the moving defendant will obtain a
favorable judgment. (CCP §1030(b).) The motion can be brought at any
time. (CCP §1030(a).) The trial court has no authority to deny the motion
on the ground that it is untimely. (Heffron v. Los Angeles Transit Lines
(1959) 170 Cal.App.2d 709.) The motion is required to be noticed.
(CCP §1030(a).) The notice of motion must be served in accordance with CCP
§1005(b). The motion must be accompanied by a supporting affidavit or
declaration which establishes the stated grounds for the motion and sets forth
the nature and amount of the costs and attorney fees the defendant has incurred
and expects to incur until the action is concluded. (CCP §1030(b).)
It must also be accompanied by a memorandum of points and authorities.
(CCP §1030(b), CRC 313(a).)
The
plaintiff may pursue a number of tactics in opposing a motion for security.
These may include:
(1)
proof that the plaintiff is not a nonresident;
(2)
showing the plaintiff's indigency (CCP §995.240); and
(3) arguing the defendant's failure to make
an adequate prima facie showing of a reasonable possibility of success in the
action.
In
cases where adequate grounds exist for granting the motion for security, the
plaintiff can still challenge the amount of the costs and attorney fees
requested by the defendant. The security can be ordered only for
"reasonable" costs and attorney fees, and the defendant must be
otherwise entitled to recover those fees by contract or by another statutory
provision. (CCP §1030(a).)
If
the motion is granted, the plaintiff shall file the undertaking no later than
30 days after service of the court’s order requiring it, and if plaintiff fails
to file the undertaking within the time allowed, the plaintiff’s action shall
be dismissed as to the moving defendant. (Code Civ. Proc., § 1030, subd.
(d).)
B.
Discussion
Here, City moves this Court for an undertaking of
$52,450, noting that Plaintiff is an out of state resident and that there is a
reasonable probability of Defendant prevailing in obtaining a favorable
judgment. Plaintiff’s residency is not in dispute, he is a resident of the
state of Oregon. However, City’s
contention that they are able to show a likelihood of obtaining a favorable
judgment is disputed. Government
Code, section 835 provides:
Except as provided by statute, a public
entity is liable for injury caused by a dangerous condition of its property if
the plaintiff establishes that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk
of the kind of injury which was incurred, and that either:
(a) A negligent or wrongful act or
omission of an employee of the public entity within the scope of his employment
created the dangerous condition; or
(b) The public entity had actual or
constructive notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against the
dangerous condition.
(Gov’t Code, § 835.)
A condition of public property is not a
dangerous condition “if the trial or appellate court, viewing the evidence most
favorably to the plaintiff, determines as a matter of law that the risk created
by the condition was of such a minor, trivial or insignificant nature in view
of the surrounding circumstances that no reasonable person would conclude that
the condition created a substantial risk of injury when such property or
adjacent property was used with due care in a manner in which it was reasonably
foreseeable that it would be used.” (Gov’t Code, § 830.2.) “Courts
have referred to this simple principle as the ‘trivial defect defense,’
although it is not an affirmative defense but rather an aspect of duty that
plaintiff must plead and prove.” (Caloroso v. Hathaway (2004) 122
Cal.App.4th 922, 927.)
“As a general rule, the issue of whether a
given set of facts and circumstances amounts to a dangerous condition poses a
question of fact.” (Biscotti v. Yuba City Unified School Dist.
(2007) 158 Cal.App.4th 554, 558-559.) “Nevertheless, that question may be
decided as a matter of law if no reasonable person could conclude the
property's condition is dangerous as that term is statutorily defined.” (Id.
at p. 559.) “[T]he plaintiff has the burden to establish that the
condition is one which creates a hazard to persons who foreseeably would use
the property with due care.” (Ibid., internal quotations
omitted.) The possessor or operator of a given premises “is entitled to
assume that any such invitee will perceive that which should be obvious to him
in the ordinary use of his senses.” (Danieley v. Goldmine Ski Assocs.
(218 Cal.App.3d 111, 121.) “[I]f the danger is so obvious that a
person could reasonably be expected to see it, the condition itself serves
as a warning, and the landowner is under no further duty unless harm was
foreseeable despite the obvious nature of the danger." (Id.
at p. 122, emphasis in original.)
With
these principles in mind, the Court turns to the precise factual circumstances
of the case. First, Defendant argues that the available written evidence does
not suggest that the existence of an actionable dangerous condition as to the
terminal and gate where Plaintiff’s accident took place because the sweep/cleaning
and inspection logs for the area in question show no dangerous condition or
report of a dangerous condition. As noted by Defendant City, Plaintiff will be
required to establish that City had actual or constructive knowledge of the
dangerous condition. Defendant City asserts it will be able to show – at trial
– that it had no actual or constructive knowledge of a dangerous condition at
Terminal 2, Gate 23, because either there existed no actual tripping or other
hazard near the Gate, at or about the time Plaintiff fell, or that City did not
have actual or constructive knowledge of such condition even if the condition
existed at the time.
Next,
City asserts it will be able to argue that no act or omission on its part was
the actual cause of Plaintiff’s accident. City asserts that the evidence in
this case as to the cause of Plaintiff’s fall is his admission that he was
hurrying from Gate 23 to another Gate to catch his connecting flight. Based on
this, City argues it will be able to assert that Plaintiff’s fall was not
caused by any breach of duty by City but rather by the fact that Plaintiff was
rushing to catch his connecting flight, and not paying attention to what he was
doing. Third, City asserts that any such dangerous condition of an object
and/or liquid on the floor was open and obvious that Plaintiff had a duty to
avoid such a condition. City argues that this is evidenced by the fact that no
other complaints of slip and falls were reported at or about the alleged time
of Plaintiff’s fall.
In
opposition, Plaintiff notes that Defendant has failed to include declarations
by the actual sweepers and /or inspectors, and that City’s only evidence used
being the sweep/cleaning logs does not prove this point. Plaintiff also points
out that the declaration of the supervisor/declarant fails to confirm that he
visited the inspected areas to corroborate the contents of the reports, only
that he signed off on them. In fact, Plaintiff uses this declaration to its
advantage, arguing that this declaration validates that Plaintiff unexpectedly
slipped and fell on a clear liquid, measuring approximately two to three feet
in diameter, that was observed on the floor after the fall.
Next,
Plaintiff also argues in opposition that City will not be able to establish
that they lacked constructive notice as the fall occurred between 7:00am and
7:30 am. However, Plaintiff contends that the Custodial Inspection Report noted
that inspections only occurred at 12:30 am, 3:30am, and 6:00 am, and thus, at
least one hour to one and a half hours took place where there was no inspection
of the area. Plaintiff argues that the time frame between inspections is not reasonably
adequate for an inspection system, especially for a location that sees the
level of foot traffic at the terminal where Plaintiff fell.
Here,
this Court understands Plaintiff’s arguments and notes that the standard does
not require a probability of a successful judgment. The standard only requires
a possibility that a public entity defendant will pprevail. Based on the
submitted evidence, the Court finds City has a possibility of success sufficient
for a granting of this motion. However, the Court finds that the amount of the
undertaking requested does not match the Court’s experience in awarding costs
in garden variety slip and fall cases. The
Court will take oral argument about a lowered amount such as in the $7,500 to
$15,000 range. Finally, a household income
of $66,000 does not qualify as indigency under the standards employed for fee
waivers.