Judge: Stephen Morgan, Case: 22AVCV00122, Date: 2023-02-28 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 22AVCV00122    Hearing Date: February 28, 2023    Dept: A14

Background

This is a wrongful death action. Plaintiff Anthony Campbell, by and through his successor-in-interest, Miles Campbell (“Decedent”); and Miles Campbell as an individual (“Campbell” and collectively “Plaintiffs”) present that Decedent was between the age of 18 to 64 with physical and mental limitations that restricted his ability to carry out normal activities and his ability to protect his rights including, but not limited to, physical disabilities. Plaintiffs allege that Decedent was admitted as an inpatient to a Defendant Premiere Rehabilitation & Wellness Center dba The Ellison John Transitional Center (“Premiere”)’s 24-hour health facility on or about October 16, 2020 due to minor chest pain and abnormal labs. Plaintiffs concede that Decedent had other health issues, such as a minor stroke, kidney disease, diabetes, and that such issues required (1) dialysis treatment and (2) surgery to have a catheter placed in his chest so that he could begin his dialysis treatment. Plaintiffs’ Complaint is predicated on the care and services Decedent received at Premiere’s center. Plaintiffs allege that Premiere; defendant Premiere Wellness of Lancaster GP, LLC (“Premiere LLC”); defendant Abby GL, LLC (“Abby GL”); defendant Shlomo Rechnitz (“Rechnitz”); defendant Jose Lynch (“Lynch”); defendant Ruby Grajeda-Olivar (“Grajeda-Olivar”); and defendant Shane Carlson (“Carlson” and collectively “Defendants”) failed to ensure that its staffing levels were sufficient at all times in order to supervise and protect its most vulnerable residents, including Decedent, highlighting Decedent’s treatment which included neglect. Plaintiffs believe that due to the neglect (i.e., failure to keep Decedent sage and provide him with the proper monitoring and supervision), Decedent suffered substantial injuries and death.

On June 23, 2022, Plaintiffs filed their Complaint alleging five (5) causes of action for: (1) Negligence, (2) Willful Misconduct, (3) Statutory Dependent Adult Abuses/Reckless Neglect; (4) Violation of California Health and Safety Code § 1430(b), and (5) Wrongful Death.

On June 23, 2022, Defendants Premiere, Premiere LLC, Abby GL, Rechnitz, Lynch, Grajeda-Olivar, and Carlson (“Premiere Defendants”) filed a Petition to Compel Arbitration which was taken off calendar.

On August 12, 2022, Premiere Defendants filed their second Motion to Compel Arbitration, subsequently denied.

On January 31, 2023, Premiere Defendants filed this instant Motion for Security Pursuant to Cal. Code Civ. Proc. § 1030 (the “Motion”).

On February 14, 2023, Plaintiffs filed their Opposition.

On February 21, 2023, Premiere Defendants filed their Reply.

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Analysis

Legal Standard for Undertaking – 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. (Cal. Code Civ. Proc. § 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. (Cal. Code Civ. Proc. § 1030(b).) The motion can be brought at any time. (Cal. Code Civ. Proc. §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. (Cal. Code Civ. Proc. §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. (Cal. Code Civ. Proc. § 1030(b).) It must also be accompanied by a memorandum of points and authorities. (Cal. Code Civ. Proc. § 1030(b).)

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;

1. showing the plaintiff's indigency (Cal. Code Civ. Proc. § 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. (Cal. Code Civ. Proc. § 1030(a).)

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Discussion

Application – Premiere Defendants move for a court order requiring Plaintiffs to post an undertaking as (1) Plaintiffs live out of state and (2) there is a reasonable possibility that the Premiere Defendants will obtain judgment in their favor.

1. Residency of Plaintiffs

Premiere Defendants have attached as Exh. B Campbell’s form interrogatory responses as proof that Campbell does not live in California. Campbell has signed the verification for his responses from London, United Kingdom. Campbell’s responses, signed under penalty of perjury under the laws of the State of California, state that he has resided at 6 Stockbury Court, 181a Victoria Road, London, EN4 9PA since 2018. Prior to moving to that residence, Campbell has resided at 62 Pentrich Avenue, Enfield, Middlesex, EN1 4NA since 1996. The Court notes that Premiere Defendants’ motion states: “In his responses to Form Interrogatories propounded by Defendant, Plaintiff admitted that he has lived in Singapore since at least 2013.” The Court believes this statement to be an error. Campbell’s responses show that he has resided in the United Kingdom since 1996, currently resides there, and is not a resident of California.

Plaintiffs argue that only Campbell is a non-resident. That is, Decedent’s estate is the plaintiff as it relates to all causes of action except wrongful death and Decedent resided in and died in California, making him a plaintiff that does not reside outside the state.

Premiere Defendant’s Reply simply states that Campbell resides out of state and, therefore, Premiere Defendants are entitled to request the Court order Campbell to post a security of costs.

Plaintiffs neglect the fact that Decedent is participating in this action through his Successor in Interest, Campbell. Cal. Code Civ. Proc. §1030 is written in the present tense, focused on where the plaintiff resides during the litigation (not when the injury actually occurred).

The purpose behind the statute is to ease a successful defendant's collection of post-litigation costs, and since Decedent is deceased there would likely be no "collecting" from him. Further, Decedent is technically not a party. (See Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1524.) Cal. Code Civ. Proc. §377.30 provides "a cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to [Cal. Probate Code §7000]." Per Cal. Probate Code §7000, "title to a decedent's property passes on the decedent's death to the person to whom it is devised in the decedent's last will or, in the absence of such a devise, to the decedent's heirs as prescribed in the laws governing intestate succession." Per Cal. Probate Code §6402(b), if there is no surviving spouse or issue, the next "heir" is "decedent's parent or parents equally." This means that the real party in interest is no longer Decedent but really Campbell. (See Cal. Code Civ. Proc. §377.11; (Welf. & Inst. Code §15657.3(d); Mayo v. White (1986) 178 Cal.App.3d 1083, 1088.)

Thus, both Plaintiffs reside out of state.

1. Reasonable Possibility of Judgment in Premiere Defendants’ Favor

Next, the Premiere Defendants argue that there is a reasonable possibility that the Estate will obtain judgment in its favor as they maintain that no abuse occurred and, if it did, no officer, director, or managing agent of Defendants was engaged in the abusive conduct, authorized the abusive conduct, ratified the abusive conduct, or hired the individual who engaged in the abusive conduct with advance knowledge of the individual’s unfitness and hired him or her nonetheless in conscious disregard of the rights or safety of others. Premiere Defendants go through each cause of action and state the following:

• Premiere complied with the standard of care;

• Premiere did not engage in misconduct;

• Premiere provided adequate care for Decedent;

• Premiere Defendants will show that they provided care that met the reasonable standard of care for a skilled nursing facility including providing appropriate care, treatment care planning and dietary needs;

Plaintiffs present that Premiere Defendants have not met their burden to show factual grounds for a reasonable possibility of success as their Motion and the declaration of Azucena Crespo (“Crespo”), defense counsel, fails to offer any facts or evidentiary backing to show that Defendants have even a remote “reasonable possibility” of prevailing. Plaintiffs further present that they themselves can and will prevail as Premiere was negligent in assessing Decedent and addressing Decedent’s symptoms.

Premiere Defendants present that they have met the burden of proof required under Cal. Code Civ. Proc. as the statute requires that they demonstrate only a reasonable possibility of prevailing.

Premiere Defendants have provided broadly that they will show the care provided to Decedent adhered to the standard of care. It appears, however, in justifying the amount of the bond requested, that Premiere Defendants intend to present expert witnesses. (See Motion, 10:7-9.)

The moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial. Rather, the moving party is required to show only that it was reasonably possible that they would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

Proffering expert testimony on the essential elements of standard of care and causation could indeed be sufficient to a jury finding in favor of Premiere Defendants at trial. Crespo’s declaration provides further detailing to the experts. Premiere Defendants intend to call the following experts: (1) a nursing expert to address issues related to the standard of care provided by Premiere; (2) an internal medicine expert to address issues related to Decedent’s alleged injuries, including cause of death and comorbidities, and (3) an endocrinologist expert to address issues related to Plaintiff’s alleged injuries, including cause of death and diabetic ulcers. (Decl. Crespo ¶ 9.) Being able to come forth with sufficient expert testimony at trial means that it is reasonably possible that Premiere Defendants may be able to prevail at trial on the causes of action being alleged against them.

As such, the second prong of Cal. Code Civ. Proc. § 1030 has been satisfied.

Accordingly, the Motion is GRANTED.

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Amount of Undertaking

Premiere Defendants request $300,000.00 in undertaking. Crespo’s declaration and the Motion provide breakdowns of costs:

Deposition of Plaintiff: $1,500

Deposition of treating physicians/surgeons(4): $6,000

Deposition of witnesses (2): $3,000

Deposition of Defense witnesses (3-4) $ 7,500

Subpoena Records: $1,000

Court filing fees: $3,150

Jury Fees: $150

Court Reporter Fees for trial: $10,000

Blow-ups, exhibits and models for trial: $7,000

Defense Experts: $45,000

Attorneys fees already incurred: $41,000

Attorneys fees expected through trial: $189,000

TOTAL: $311,150

(Motion 11:2-14; Decl. Crespo ¶¶ 6-15.)

The Court imposes an undertaking of $300,000.00.

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Conclusion

Defendants Premiere Rehabilitation & Wellness Center of Lancaster, LP dba The Ellison John Transitional Care Center (erroneously sued and served as The Ellison John Transitional Care Center); Premiere Wellness of Lancaster GP, LLC; Shlomo Rechnitz; Jose Lynch Petition; Shane Carlson; and Ruby Grajeda-Olivar’s Motion for Security Pursuant to Cal. Code Civ. Proc. § 1030 is GRANTED.