Judge: Theresa M. Traber, Case: 22STCV04928, Date: 2024-11-07 Tentative Ruling

Case Number: 22STCV04928    Hearing Date: November 7, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 6, 2024                 TRIAL DATE: May 20, 2025

CASE:                         Angelia Kambouris v. Senator Jones, et al.

CASE NO.:                 22STCV04928           

MOTION TO REQUIRE UNDERTAKING

MOVING PARTY:               Defendants Brown Label Inc., d/b/a Senator Jones (erroneously sued as Senator Jones and separately as Brown Label Inc.); and Travis Burk (sued as Travis Doe).

RESPONDING PARTY(S): Plaintiff Angelia Kambouris

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            On February 9, 2022, Plaintiff filed a complaint asserting claims for intentional tort action for assault, battery, and infliction of emotional distress. Plaintiff alleges that she was attacked by a security guard employed by the corporate Defendant.

Defendants move to require Plaintiff to post an undertaking pursuant to Code of Civil Procedure section 1030.

TENTATIVE RULING:

Defendants’ Motion to Require Undertaking is DENIED.

DISCUSSION:

Defendants move to require Plaintiff to post an undertaking pursuant to Code of Civil Procedure section 1030.

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.”   

In order 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 Plaintiff

            Although Plaintiff originally alleged that she was a resident of Los Angeles at the time the action was filed, Defendant states that Plaintiff has admitted in responses to interrogatories that she currently resides in New South Wales, Australia. (Declaration of Matthew C. Hong ISO Mot. Exh. B. No. 2.5.) Plaintiff does not contest that she is an out-of-state plaintiff for the purposes of this motion.

Reasonable Possibility of Prevailing

            Defendants argue that they have a reasonable possibility of prevailing on Plaintiff’s first two causes of assault and battery, but make no effort to address the remaining causes of action for intentional infliction of emotional distress, negligence, or negligent hiring, retention, and supervision. As the moving parties, Defendants bear the burden of demonstrating a possibility of success in this case. By failing to address all claims in their motion, Defendants have not met that burden. Moreover, Defendants’ efforts to rescue their motion by addressing the remaining claims in their reply papers is unavailing, as Plaintiff has not been presented a fair opportunity to rebut Defendants’ attack on her claims. Defendants are therefore not entitled to an order requiring Plaintiff to post an undertaking on this showing.  

CONCLUSION:

            Accordingly, Defendants’ Motion to Require Undertaking is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  November 7, 2024                              ___________________________________

                                                                                    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.