Judge: Steven A. Ellis, Case: 23STCV12048, Date: 2024-10-23 Tentative Ruling

Case Number: 23STCV12048    Hearing Date: October 23, 2024    Dept: 29

Villamil-Matias v. Hollywood VIP Hotel

23STCV12048
Defendant’s Motion to Require Plaintiff to File Undertaking

Tentative

The motion is denied.

Background

On May 26, 2023, Plaintiff Juan Villamil-Matias (“Villamil-Matias”) filed an action against Defendants Hollywood VIP Hotel (“Hotel”), LM Orchid Investments LLC, LM Miranda Investments, LLC, and Does 1 through 25 for general negligence and premises liability.  Plaintiff alleges that on May 28, 2021, he was seriously injured when he slipped and fell in the shower of a hotel room owned, maintained and/or controlled by Defendants due to a slippery substance left in the bathtub.

On October 27, 2023, Defendant Hotel filed an Answer.

On August 23, 2024, Defendant LM Orchid Investments LLC dba Hollywood VIP Hotel (“Defendant”) filed this motion to require Plaintiff to file an undertaking.  On September 13, Defendant filed a supplemental declaration of counsel in support of the motion.  Plaintiff filed an Opposition on October 2.  No reply has been filed.

Legal Standard

“When the plaintiff in an action … resides out of state … 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 or special proceeding.”  (Code Civ. Proc., § 1030, subd. (a).)  

Attorney’s fees for purposes of section 1030 are “reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.”  (Ibid.)

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 the moving defendant will obtain judgment in the action.”  (Id., subd. (b).)  “The motion shall be accompanied by an affidavit … set[ting] forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action.” (Ibid.)

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 … and may not be given in evidence nor referred to in the trial of the action.”  (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 Plaintiff to file an undertaking.

First, Defendant must show that Plaintiff resides outside of California.  Defendant has made this showing.  (Eldridge Decl., ¶¶ 3-4 & Exh. A.)  Plaintiff does not contest this point.

Second, Defendant must show that it has a “reasonable possibility” that it will prevail.  Defendant has the burden of proof on this issue. (Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914.) As the Court of Appeal has explained, all that is required is a showing that it is “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 support of the motion, Defendant offers no evidence on this point.  Defendant argues in its memorandum (among other things) that the hotel has no records of the incident, but Defendant does not offer any admissible evidence on this point (such as, for example, a declaration from a hotel employee or manager explaining how reported injuries are logged or documented and stating that no records exist).  Statements of counsel, whether in the memorandum or the supporting declaration, are not evidence.

Accordingly, the motion is denied.  Defendant has not met its burden of proof under the statute.

In addition, and independently, the Court also notes that moving party has not shown the basis for the requested undertaking in the amount of $35,000, as opposed to some greater or lesser amount.  (Also, although Plaintiff’s counsel states that Plaintiff is “unable to furnish an undertaking” because of “financial hardship,” Plaintiff supports no supporting evidence.)

Conclusion

The Court DENIES Defendant’s motion to require Plaintiff to file an undertaking.

Moving party is ordered to give notice.