Judge: Steven A. Ellis, Case: 21STCV37338, Date: 2023-10-25 Tentative Ruling

Case Number: 21STCV37338    Hearing Date: October 25, 2023    Dept: 29

TENTATIVE

The Court GRANTS in part Defendant Geoffrey Thomas Craighead’s motion for an order requiring Plaintiffs Rolando Enrique Restrepo and Nina Restrepo to file an undertaking pursuant to Code of Civil Procedure section 1030. 

Background

This case arises out of an alleged motor vehicle accident on August 17, 2019, on the I-105 Freeway, west of Imperial Highway.

On October 8, 2021, Plaintiffs Rolando Enrique Restrepo and Nina Restrepo (“Plaintiffs”) filed the Complaint against Defendants Geoffrey Thomas Craighead (“Defendant”) and Does 1-50, asserting causes of action for auto negligence and loss of consortium; in the Complaint, Plaintiffs allege that Defendant drove his automobile negligently and collided with the motorcycle on which Plaintiff Rolando Enrique Restrepo was riding.

On May 11, 2022, Defendant filed his Answer. Liability is disputed.

On September 28, 2023, Defendant filed a motion for an order requiring Plaintiffs to file an undertaking pursuant to California Code of Civil Procedure section 1030, subdivision (a). On October 11, 2023, Plaintiffs filed an opposition. On October 18, 2023, Defendant filed a reply.

Trial is set for February 5, 2024.

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 to secure an award of costs and attorney’s fees which may be awarded in the action.” (Code Civ. Proc., § 1030, subd. (a).) 

To obtain an order requiring an undertaking, the defendant must show [1] “that the plaintiff resides out of the state”; and [2] “that there is a reasonable possibility that the moving defendant will obtain judgment in the action.” (Id., subd. (b).)

If the motion is granted, the plaintiff must file the undertaking within 30 days after service of the court’s order requiring it; if plaintiff fails to do so, the action is subject to dismissal.  (Id., subd. (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., subd. (f).)

“The purpose of [section 1030] is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428.)

Discussion

Defendant seeks an order requiring Plaintiffs to file an undertaking.

First, Defendant must show Plaintiffs reside outside of California. Defendant has submitted evidence showing that both Plaintiffs live out of state. (Mendoza Decl. ¶¶ 9-10 & Exhs. 11-12.) Plaintiffs concede the point. (Opp. at 3.)

Second, Defendant must show that he has a “reasonable possibility” that he will prevail. Plaintiffs argue that the standard is higher, and that Defendant must show that Plaintiffs’ claim is frivolous or that they will not prevail (Opp. at 3-6), but that is not the law. The plain language of the statute requires only a “reasonable possibility.” As the Court of Appeal has explained, all that is required is a showing that it “was reasonably possible that [defendants] would win.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.) A plaintiff is “not required to show that there [is] no possibility that [plaintiff] could win at trial.” (Ibid.)

In attempting to make the required showing, Defendant relies heavily on the declaration of Henricus P. Jansen, an expert in vehicular collision and accident reconstruction analysis with a Master of Science in Civil Engineering who specializes in mechanics and dynamics of bicycle and motorcycle collisions with sub-specialties in safety and human factors of bicycle and motorcycle riding and use. (Jansen Decl., ¶1.) Jansen declares that based on a review of the discovery responses, deposition transcripts, photographs and repair estimates of all vehicles involved, Plaintiff’s speed and lane position were the causative factors for this collision. (Id., ¶¶ 4-7.)

In opposition, Plaintiffs argue that Jansen is not qualified as an expert witness, he lacks licensing and accreditation by the Accreditation Commission of Traffic Accident Reconstructionist, and he may be engaging in the practice of engineering without a license. (Opp. at 6-8; Abkarian Decl., ¶¶ 3, 7.) Plaintiffs also argue that his opinion is based on nothing more than speculation, conjecture, and improper methodology. (Opp. at 8-12.)

The Court has carefully considered the evidence and argument from both sides and concludes that Defendant has made a showing that there is a “reasonable possibility” that Defendant will prevail that is sufficient under Code of Civil Procedure section 1030. To be clear, this is not a finding on the merits. (Code Civ. Proc., subd. (f).) It is not a determination that it is more likely than not that Defendant will obtain a judgment in his favor. It is not a determination that it is unlikely that Plaintiffs will obtain a judgment in their favor. It is a determination that it is reasonably possible that Defendant will obtain such a judgment. Whether it is through the testimony of Jansen or some other expert with different qualifications, there is sufficient admissible evidence in the record for the Court to conclude that liability is reasonably in dispute, and it is reasonably possible that Defendant will prevail. That is all that is required under Code of Civil Procedure section 1030. There is no indication that the Legislature intended that a section 1030 hearing should or must take on the attributes of a mini-trial or an evidentiary hearing under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747.

Third, and finally, the Court turns to the amount of the undertaking that will be required. The purpose of the undertaking is to secure recovery of allowable attorney’s fees and costs. There is no indication, and Defendant does not argue, that attorney’s fees are recoverable in this action. Instead, Defendant seeks an undertaking to cover $18,150.70 in past or future “ordinary” litigation costs (such as court reporter fees, filing fees, and deposition costs); $4,900 in expert fees for Jansen; and $71,800 in other future fees for potential defense experts and deposing plaintiff’s experts. (Mendoza Decl., ¶¶ 12-13.)

The Court has considered this evidence and orders Plaintiffs to file an undertaking in the amount of $23,050.70. That amount covers the costs and expert fees that Defendant has already incurred and $10,000 in “ordinary” costs that Defendant has shown are reasonably expected to be incurred by the conclusion of the matter. The other projected costs are not properly or reasonably substantiated in Defendant’s moving papers and are, on this record, hypothetical and speculative. 

Conclusion

The Court GRANTS in part Defendant Geoffrey Thomas Craighead’s motion for an order requiring Plaintiffs Rolando Enrique Restrepo and Nina Restrepo to post an undertaking pursuant to Code of Civil Procedure section 1030. 

Plaintiffs Rolando Enrique Restrepo and Nina Restrepo are ORDERED to post an undertaking in the total amount of $23,050.70 no later than thirty (30) days after service of this order. If Plaintiffs fail to file the undertaking within the time allowed, their action is subject to dismissal. (Code Civ. Proc., § 1030, subd. (d).) 

Moving party is ordered to give notice.