Judge: Theresa M. Traber, Case: 21STCV35300, Date: 2023-10-23 Tentative Ruling

Case Number: 21STCV35300    Hearing Date: October 23, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 23, 2023                   TRIAL DATE: January 2, 2024

CASE:                         Timothy Joseph Toups (deceased) et al. v. 3M Company, et al.

CASE NO.:                 21STCV35300           

MOTION FOR ORDER REQUIRING PLAINTIFFS TO FILE UNDERTAKING

MOVING PARTY:               Defendants Amrep, Inc., and Zep, Inc.

RESPONDING PARTY(S): Plaintiffs Timothy Joseph Toups (deceased); Breanna Patton, and Kylie Young

CASE HISTORY:

·         09/24/21: Complaint filed.

·         10/20/21: The Quikrete Companies, LLC substituted in as Doe 1

·         11/29/21: Dismissal entered as to Quikrete International, Inc.

·         01/17/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a toxic tort and survival action. Plaintiffs allege that Timothy Joseph Toups, now deceased, was exposed to various toxic chemicals while working in construction, which ultimately caused his fatal illness.

Defendants Amrep, Inc. and Zep, Inc. move to require Plaintiffs to post an undertaking in the amount of $93,140.16.

TENTATIVE RULING:

            Defendants’ Motion to Require an Undertaking is DENIED.

DISCUSSION:

Defendants Amrep, Inc. and Zep, Inc. move to require Plaintiffs to post an undertaking in the amount of $93,140.16.

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Legal Standard

Under Code of Civil Procedure section 1030(a), a defendant sued by an out-of-state plaintiff “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.”   

To prevail on a motion for undertaking, the defendant must show that: (1) the plaintiff resides out of state; and (2) there is a “reasonable possibility” that the defendant will obtain a judgment in the matter. (Code Civ. Proc. § 1030(b).) A defendant need not show that there is no possibility of the plaintiff prevailing—only that it is reasonably possible that defendant will prevail. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)  Additionally, the motion must be accompanied by a supporting affidavit or declaration that sets forth the nature and amount of the costs the defendant has incurred and expects to incur. (Code Civ. Proc. § 1030(b).) Finally, “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 or proceeding.”  (Code Civ. Proc. § 1030(f).) 

Out-of-State Plaintiffs

            It is undisputed that the Plaintiffs are not residents of the State of California. The decedent, Timothy Toups, and the current Plaintiffs, Kylie Young and BreeAnna Toups, all stated in deposition testimony that they are residents of Idaho, not California. (Declaration of Jennifer Bonneville ISO Mot. Exh. B pp. 108:6-9, 117:17-19; Exh. C p.14:10-11; Exh. D pp. 10:24-11:3.) Defendants have therefore met their burden to demonstrate that Plaintiffs reside out of state.

Reasonable Possibility of Prevailing

            Defendants make no effort in their five-page memorandum of points and authorities to demonstrate a reasonable possibility of prevailing on the causes of action asserted against them. Rather than argue the issues on this motion as they are required to do, Defendants instead vaguely gesture toward a motion for summary judgment filed on September 5, 2023, which has not been fully briefed nor heard and for which judicial notice was not requested. Defendants, as moving parties, bear the burden of showing that it is reasonably possible that they will prevail in this case. Defendants have failed to do so.

Plaintiffs’ Indigency

            Even if Defendants had carried their burden to demonstrate a reasonable possibility of prevailing in this case, the Court would not order Plaintiffs to post a bond because they have demonstrated that they are indigent.

The Court has the power to relieve indigent plaintiffs from furnishing security for costs. (Code Civ. Proc. § 995.240; see, e.g., Conover v. Hall (1974) 11 Cal.3d 842, 851-52.) Where a person is indigent and unable to obtain sufficient securities to post an undertaking, the court may not limit his or her access to the courts by requiring an unreasonable bond.  (Garcia v. Santana (2009) 174 Cal.App.4th 464, 472 [“The fact that a litigant had some limited resources was insufficient to deny such a person the right to proceed, an entitlement grounded ‘in a common law right of access to the courts and constitutional principles of due process’”].)   

Where an out-of-state plaintiff establishes that he or she is indigent, the trial court may exercise its discretion to waive the requirement of posting an undertaking.  (Alshafie, supra, 171 Cal.App.4th at p. 429 [“[t]he court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers”]; Bank of America Nat. Trust & Sav. Ass’n v. Superior Court of Fresno County (1967) 255 Cal.App.2d 575, 578.)   

The plaintiff may make a prima facie showing of indigency by showing he has unsuccessfully attempted to obtain the required undertaking or that he is unable to furnish it.  (Baltayan, supra, 90 Cal.App.4th at p. 1434.)  For example, the trial court may exercise its discretion in waiving the security or reducing the amount of the undertaking based on a plaintiff’s declaration and tax returns.  (Ibid.)  Essentially, plaintiff must provide the court with the same information that a plaintiff seeking to proceed in forma pauperis must provide in seeking relief from the obligation to post a bond.  (Alshafie, supra, 171 Cal.App.4th at p. 433.) 

Here, Plaintiffs have provided verified declarations under penalty of perjury stating that they are each unable to afford a bond of the requested amount and are not able to obtain the undertaking as a loan. Plaintiff Toups states that she earns approximately $1,500 per month from her sole source of income and has approximately $400 in her checking account.  (Declaration of BreeAnna Toups ISO Opp. ¶ 3) She also states that she has approximately $1,375 per month in expenses, accounting for most of her monthly salary. (Id. ¶ 4.) Plaintiff Young states that she and her husband have a combined income of approximately $4,300 per month, most of which is consumed by their monthly living and child-care expenses and had, as of October 7, 2023, $2,500 in their checking account, with bills due that would reduce the amount to $300. (Declaration of Kylie Young ISO Opp. ¶ 3-5.) Plaintiffs state they can barely afford essential living expenses. (Toups Decl. ¶ 6; Young Decl. ¶ 6.) Moreover, both Plaintiffs state that their bank refused to loan them the funds for the undertaking. (Toups Decl. ¶ 6; Young Decl. ¶ 7.) Defendants, in reply, claim that Plaintiffs’ statements regarding their bank’s refusal to furnish the undertaking are inadmissible hearsay, and assert that Plaintiffs’ evidence of indigency is “weak.” Neither contention is persuasive. Plaintiffs do not offer evidence of statements made by their bank, but evidence of the bank’s conduct, i.e. its refusal to furnish the undertaking. Nor does the Court find that Plaintiffs’ sworn testimony regarding their finances to be “weak” evidence, and Defendants cite no authority in support of that proposition.

The Court does not find that Defendants have demonstrated a reasonable possibility of success on the merits of this case, such that Plaintiffs should be required to furnish an undertaking. Even if Defendants had done so, Plaintiffs have demonstrated to the Court’s satisfaction that they are indigent, and the Court would exercise its discretion to relieve them from their obligation to furnish an undertaking.

CONCLUSION:

            Accordingly, Defendants’ Motion to Require an Undertaking is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: October 23, 2023                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.