Judge Teresa A. Beaudet, Case Number: 24STCV23349, Date: 2025-04-22 Tentative Ruling

PI CHIN YU,

Plaintiff,

vs.

E.SUN COMMERciAL BANK LTD, et al.,

Defendants.

Case No.:

24STCV23349

Hearing Date:

April 22, 2025

Hearing Time: 10:00 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT E.SUN COMMERCIAL BANK LTD’S MOTION FOR ORDER REQUIRING PLAINITFF TO FILE AN UNDERTAKING FOR COSTS AND FEES

On September 10, 2024, Plaintiff Pi Chin Yu (“Yu”) filed a complaint against Defendants E. Sun Commercial Bank Ltd and Mandy Yeh (collectively, “Defendants”).

On October 11, 2024, Plaintiff filed a First Amended Complaint against Defendants.

On October 29, 2024, Plaintiff filed the operative Second Amended Complaint against Defendants alleging causes of action for (1) harassment on the basis of religion, race and age that created a hostile work environment, (2) discrimination on the basis of religion, national origin and age that created a hostile work environment, (3) failure to prevent harassment, discrimination, and/or retaliation, (4) wrongful termination in violation of public policy, (5) negligent hiring, training, supervision and retention, and (6) retaliation in violation of FEHA.

Defendant E.Sun Commercial Bank Ltd (“Defendant”) now moves for an order requiring Plaintiff to file an undertaking for costs and fees incurred by Defendant in the amount of $200,000. The motion, which is brought under CCP § 1030, is made on the “grounds that Plaintiff does not reside in the State of California, there is a reasonable possibility Defendant will obtain a judgment in its favor and be entitled to costs or attorney’s fees or both, and that therefore the action should be stayed until Plaintiff submits a bond to cover such costs and fees to the Court.” (Not. of Mot. at p. 2:1-4.)

Plaintiff opposes. As of April 17, 2025, no reply brief has been filed. Any reply brief was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

Plaintiff’s unnumbered objections to the declaration of Michael P. Dillingham are sustained except as to the second and fourth objections and the portion of the objection to “4/7/18-5/7/10” that identifies anticipated costs and fees.

“When the plaintiff in an action . . . resides out of 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).) Attorney’s fees for purposes of CCP § 1030 “means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.” (Id.)

A motion for an undertaking “shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility the moving defendant will obtain judgment in the action or special proceeding.” (Code Civ. Proc., § 1030, subd. (b).) “The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities.” (Id.) “The affidavit shall set 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 or special proceeding.” (Id.) “If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court’s order as security for costs and attorney’s fees.” (Code Civ. Proc., § 1030, subd. (c).) “An order granting or denying a motion for an undertaking . . . is not appealable.” (Code Civ. Proc., § 1030, subd. (g).)

In support of the motion, Mr. Dillingham declares, inter alia, that “[a]pproximately four weeks ago, between October 28, 2024, and November 2, 2024, [he] learned that plaintiff Pi Chin Yu is either out of the country or is claiming to be out of the country.” (Dillingham Decl., ¶ 2.) Mr. Dillingham indicates that counsel for Plaintiff “did confirm, however, that Ms. Yu is out of the country.” (Dillingham Decl., ¶ 2.) Counsel for Plaintiff reported to Mr. Dillingham that Plaintiff “is in China, and suggested vicariously that she could return to participate, that [Defendant] could take her deposition in China if Defendant paid for the trip, or that [Defendant] could pay for her to return for a deposition or for medical examination.” (Dillingham Decl., ¶ 2.)

In opposition to the motion, Daniel E. Hoffman (“Hoffman”), who is counsel for Plaintiff, declares, inter alia, that “[t]here has been no evidence provided by defense counsel to establish that Plaintiff is not a California resident.” (Hoffman Decl., ¶ 5.) In fact, “[a]fter service of Defendants Motion for Undertaking on December 3, 2024, [Mr. Hoffman] notified defense counsel Michael Dillingham by email that Pi Chin Yu is a resident of California.” (Hoffman Decl., ¶ 4.)

In support of the opposition, Plaintiff provides a declaration. Plaintiff declares, inter alia, that Plaintiff is “a California resident.” (Yu Decl., ¶ 3.) Plaintiff “was only temporarily out of California due to financial issues related to [her] divorce.” (Yu Decl., ¶ 4.) Plaintiff states that she has “returned to California.” (Yu Decl., ¶ 5.) Plaintiff attests that “Mr. Dillingham’s unfounded and unsupported allegation that [she] was out of the country to avoid medical examinations and medical imaging related to a worker’s compensation [case] is baseless and untrue.” (Yu Decl., ¶ 6.)

Plaintiff argues that she is a California resident and therefore the motion must be denied. (Opp’n at p. 5:19-25.) The Court finds that the mere fact that Defendant’s counsel “learned that plaintiff Pi Chin Yu either is out of the country or is claiming to be out of the country[,]” does not mean that Plaintiff resides out-of-state. (Dillingham Decl., ¶ 2.) Defendant’s citation to Myers v. Carter (1960) 178 Cal.App.2d 622 (Myers) is inapposite. Myers involved a plaintiff who was deemed a nonresident under CCP § 1030 where said plaintiff presented an affidavit showing that “for the last year or so plaintiff . . . had been living in other states.” (Myers, supra, 178 Cal.App.2d 622, 626.) The Myers court stated that in determining whether a party resides out of state for purposes of CCP § 1030 “such purpose is best subserved by construing the phrase ‘resides out of the state’ as referring to actual residence, rather than domicile.” (Ibid.) Here, Plaintiff has attested to being a California resident. (Yu Decl., ¶ 3.)

Moreover, unlike the plaintiff in Myers, here there is no admissible evidence showing that Plaintiff has resided outside of California for an extended period of time. Plaintiff has stated that she was only temporarily outside of California due to financial issues connected with her divorce, but that she has now returned to California. (Yu Decl., ¶¶ 4-5.) Defendant did not file a reply brief. Thus, the Court deems the lack of a reply as a concession to the argument raised in the opposition that Plaintiff is a resident of California.

Thus, based on the information in Plaintiff’s declaration in opposition to the motion, the Court finds that Plaintiff is living in California. Defendant has not presented sufficient evidence to show that Plaintiff does not reside in California.

Based on the foregoing, the Court denies the motion for an order requiring Plaintiff to file an undertaking for costs and fees.

Defendant E.Sun Commercial Bank Ltd is ordered to provide notice of this ruling.

Superior Court of California

County of Los Angeles

Department 50