Judge: Serena R. Murillo, Case: 20STCV36677, Date: 2023-03-01 Tentative Ruling
DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)
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ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.
Case Number: 20STCV36677 Hearing Date: March 1, 2023 Dept: 29
TENTATIVE
Defendant’s motion to compel Plaintiff to post
an undertaking is GRANTED.
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(a).) The plaintiff, however,
will not be required to file an undertaking unless “there is a reasonable
possibility that the moving defendant will obtain judgment in the action or
special proceeding.” (Id., § 1030(b).) The motion must be
accompanied by an affidavit stating the nature and amount of costs and
attorney’s fees the defendant has incurred and expects to incur. (Id.)
If the motion is granted and 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(d).) “The determinations of the court under this section have
no effect on the determination of any issues on the merits of the action or
special proceeding and may not be given in evidence nor referred to in the
trial of the action or proceeding.” (Id., §1030(f).)
The second prong
of the statute requires that a defendant establish that it is “reasonably
possible” that it would obtain a judgment. (Baltayan v. Estate
of Getemyan (2001) 90 Cal.App.4th 1427,
1432 [A defendant is “not required to show that there [is]
no possibility that [plaintiff] [can] win at trial, but only that it [is]
reasonably possible that [defendant] [will] win.”].)
Discussion
Defendant moves for a court order requiring Plaintiff to post an
undertaking in the amount of $22,500 on grounds
that Plaintiff resides outside of California and there is a reasonable
possibility Defendant will prevail in this action.
As
an initial matter, Defendant argues that Plaintiff’s opposition is untimely and
should be disregarded.
“A trial court has broad discretion to overlook
late-served papers and to resolve the matter on the merits. (Gonzalez
v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162,
168 [“(E)ven if the service had been untimely, the trial court was vested with
discretion to overlook the defect”]; see also Bozzi v. Nordstrom, Inc.
(2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule
3.1300(d) of the Rules of Court to refuse to consider papers served and filed
beyond the deadline without a prior court order finding good cause for late
submission.”].) The court exercises its
discretion and considers the merits of the opposition. Further, Defendant has not argued it was prejudiced by the
opposition being one day late and has filed a reply on the merits.
Plaintiff’s Residency
Defendant argues that Plaintiff
is not a resident of California and that she lives in Colorado. (Dean Decl., ¶ 5; Exh. A.) Plaintiff concedes
this point.
Reasonable Possibility of Obtaining Judgment
Plaintiff alleges that she
was walking out to the parking lot at Westfield Santa Anita and down the cement
stairs, when she slipped and fell due to inadequate lighting and the stairs being
wet.
Defendant argues that there is a reasonable
probability of prevailing in this case because at deposition, Plaintiff testified that (1)
her accident occurred “just outside” of Clarks Shoes where she was working at
the time and since July of 2019, (2) since she began working for the Mall, her
designated parking lot was in the parking lot, down this same set of stairs
which she had “exclusively” used, (3) before the night of the incident,
Plaintiff had walked down this same set of stairs in the dark before and never
needed to use a flashlight, (4) on the night of Plaintiff’s accident, she did
not observe that the condition of the stairs was any different from when she
usually used those stairs, (5) she was carrying a can of coconut water in her
hands, (6) there was a handrail on the stairs but Plaintiff did not use the
handrail because she believes handrails are dirty, and (7) it had rained on the
day of the incident. (Dean Decl., ¶ 6; Exh. B.) As such, Defendant argues that
Plaintiff admits she frequently used the same set of stairs, never felt the
need to use a flashlight, was holding an object in her hands, and was aware of
but did not use handrails to her left and right. Defendant argues that without
evidence that Defendant was negligent in the use or maintenance of its
premises, and in the face of Plaintiff’s comparative fault, there can be no
liability.
Defendant has met its
burden of showing a reasonable possibility of prevailing. Plaintiff’s acknowledgement that she walked down these
stairs often and she never needed a flashlight and that was holding an object
in her hands and did not use the guardrail, at a minimum, show that Plaintiff
was contributorily negligent. Defendant
is only required to provide facts demonstrating that it is reasonably possible
that he will prevail; Defendant is not required to show that there is no possibility that
Plaintiff could win at trial. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)
Costs
Defense counsel
estimates that the costs through trial will total at least $22,500. This sum
includes the cost of (1) Deposition of non-expert witnesses, including
Plaintiff’s witnesses, defending depositions of Defendant’s employees or
person(s) most knowledgeable/qualified: $2,500; (2) Filing and motion fees:
$1,000; (3) Preparation of trial exhibits: $750; (4) Medical expert fees:
$10,000 after expiration of the Statutory Offer to Compromise; (5) Liability
expert fees: $7,000; and (6) the costs associated with obtaining Plaintiff’s
medical records via subpoena: $1,250. (Dean Decl., ¶ 8.)
As to expert fees, on December 8, 2022, Defendant
served a statutory offer to compromise pursuant to Code of Civil Procedure § 998,
which has since expired. The offer to compromise was not accepted. (Dean Decl.,
¶ 7.)
Plaintiff argues Defendant’s estimated
costs are not reasonable and that Defendant failed to particularize the costs. Plaintiff
argues that Defendant offers no facts as to why the costs are reasonable or
what evidence they are based on. Plaintiff contends that Defendant does not
itemize the costs and just provides a general calculation.
However, Code of Civil Procedure § 1030(b) only requires
Defendant to state the nature and amount of costs the defendant expects to
incur. Plaintiff has not cited to any proposition that states evidence is
required to prove the amount of costs it anticipates will be required. Further,
Defendant cannot itemize costs that have yet to be incurred; Defendant can only
estimate. Without any challenge specifying why these costs are not reasonable,
the Court finds the estimated costs to be reasonable.
Conclusion
Based on the foregoing, the motion
to compel Plaintiff to post an undertaking is GRANTED.
Moving
party is ordered to give notice.