Judge: Serena R. Murillo, Case: 21STCV30898, Date: 2023-03-06 Tentative Ruling
Case Number: 21STCV30898 Hearing Date: March 6, 2023 Dept: 29
TENTATIVE
Defendant Universal Studios LLC’s unopposed motion to compel Plaintiff to post an undertaking is GRANTED. Plaintiff is ordered to post an undertaking in the amount of $11,508.40 within 30 days’ notice of this ruling.
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 an amount of $25,794.75 on grounds that Plaintiff resides outside of California and Defendant has a reasonable possibility of prevailing in this case.
Plaintiff’s Residency
Plaintiff’s response to Universal’s Form Interrogatories indicates he was a resident of the State of Washington before and at the time of the incident. (Quadri Decl.; Exh. B.) On the date in question, Plaintiff was in Los Angeles but has since returned to his residence in Washington. (Id.)
Plaintiff has not filed an opposition to contend otherwise. As such, it is undisputed that Plaintiff is not a resident of California.
Reasonable Possibility of Obtaining Judgment
Plaintiff asserts two causes of action for negligence, and premises liability. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.¿¿(Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)¿¿Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property¿to¿avoid exposing others to an unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿The existence and scope of duty are legal questions for the court.¿¿(Id.¿at¿36.)¿¿If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition¿reasonably safe …. or to give a warning adequate to enable them to avoid the harm.”¿¿(Bridgman v. Safeway Stores, Inc.¿(1960) 53 Cal.2d 443, 446.)¿
Defendant argues that there is a reasonable probability of prevailing in this case because Plaintiff has a history of falling, Plaintiff’s claims do not establish Defendant had actual or constructive notice, or that a dangerous condition even existed. Defendant argues it received and reviewed over 3,500 pages of records. The records note Plaintiff’s extensive medical history significant for falls prior to and subsequent to the alleged incident. (Quadri Decl., ¶ 4.) Next, Defendant argues Plaintiff has not produced evidence that a dangerous condition existed. Plaintiff merely alleges that on August 23, 2019, Plaintiff was lawfully on the premises of Defendants’ amusement park. As Plaintiff attempted to exit Defendants’ Harry Potter ride using the ramp and/or people mover, he requested assistance to his wheelchair. Plaintiff was denied assistance, was instructed to keep moving and as he walked on the ramp and/or the people mover he tripped and fell, thereby causing Plaintiff to endure severe injury and pain. Defendants, and each of them, carelessly and negligently owned, rented, managed, leased, supervised, inspected, operated, maintained and/or controlled the premises located at 100 Universal City Plaza, Universal City, CA 91608, such that it was in a dangerous, defective and unsafe condition in conscious disregard for the risk of harm to invitees thereon. By reason of said carelessness, negligence and conscious disregard of the Defendants, and each of them, said premises were unsafe and dangerous to the general public and specifically Plaintiff. Defendants, failed to warn Plaintiff of aforesaid dangerous, defective, and unsafe condition, although said defendants, and each of them, knew of said condition. As a direct and legal result of said Carelessness, negligence and conscious disregard of Defendants, Plaintiff was seriously injured when he tripped on a ramp and/or people mover as he exited a ride causing him to trip and fall, thereby causing Plaintiff to ensure severe injury and pain. (Id., Ex. B, p. 8.) Defendant argues Plaintiff’s injuries arose from his own inattentiveness and inability to exit the ride properly. Defendant also argues that Plaintiff did not report the fall to any doctors. Defendant specifically requested the names, addresses and telephone numbers of all persons who have knowledge of the fact claimed by Plaintiff that he told a medical provider of his fall at Universal. (Quadri Decl., Ex. E, p. 7.) Plaintiff failed to identify a single provider and further failed to produce any documents to support such a claim as required by the Interrogatory. (Quadri Decl., Ex. F, p. 2.)
Defendant has met its burden of showing a reasonable possibility of prevailing, as Plaintiff has not identified in discovery thus far how the ramp was a dangerous condition. Further, there is evidence that Plaintiff has a history of falling, and Plaintiff has not produced any evidence showing he told any medical provider about the fall. As Defendant is only required to provide facts demonstrating that it is reasonably possible that he will prevail, and 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), the Court finds that Defendant has met its burden.
Costs
The Court first notes that in the notice of motion, Defendant requests an undertaking in the amount of $25,794.75. However, in the motion itself and in counsel’s declaration, Defendant requests an undertaking of $32,718.55. However, assuming the costs are reasonable, and counsel has adequately stated the nature and amount of costs Defendant has incurred, and expects to incur, the Court cannot grant an undertaking in an amount that is more than $25,794.75, as there has been no notice of an amount more than that.
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. (Code Civ. Proc., § 1030(a).) Defendant has provided a declaration from its counsel. Defendant estimates $7,600 will be incurred to conduct an independent medical examination of Plaintiff in Washington, including $1,900 to conduct the exam, and $5,700 to review the medical records, which costs of $950 per hour, for six hours due to plaintiff’s extensive medical history and record volume. (Quadri Decl., ¶ 11.) Then, Defendant estimates the deposition of Plaintiff’s medical providers will cost $1,100, plus $560 for the videographer ($275 for the first two hours, $285 for three additional hours), for a total of $1,660. (Id., Exh. I.) The deposition fees for Plaintiff’s deposition consist of $1,126.40, plus $565 for the videographer, for a total of $1,691.30. (Id., Exh. J.) Next, Defendants have incurred a first appearance fee of $437.25, a motion fee in the amount of $61.65 for this motion, a filing fee in the amount of $58.20 for the protective order, for a total of $557.10 in filing fees. (Id., 15.) Then, Defendant requests $21,210.15 for “legal fees associated with litigating this matter.” (Id.)
The Court finds that Defendant has not stated the nature of the “legal fees associated with litigating this matter” in the amount of $21,210.15. Thus, the undertaking will be reduced by that amount.
As such, after the reduction of $21,210.15, Defendant has only shown that it has incurred and expects to incur costs of $11,508.40.
Conclusion
Based on the foregoing, the motion to compel Plaintiff to post an undertaking is GRANTED. Plaintiff is ordered to post an undertaking in the amount of $11,508.40 within 30 days’ notice of this ruling.
Moving party is ordered to give notice.