Judge: William A. Crowfoot, Case: 21STCV35927, Date: 2022-08-05 Tentative Ruling

Case Number: 21STCV35927    Hearing Date: August 5, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. INTRODUCTION

On September 29, 2021, plaintiff Charlene Lewis (“Plaintiff”) filed this action against defendant Allied Crew Transport Services, LLC (“Defendant”).  Plaintiff alleges that on February 18, 2020, she was a member of a flight crew being transported in Defendant’s van from Burbank Airport to the Long Beach Marriott Hotel.  (Compl., ¶ 6.)  She claims she injured both her knees when she attempted to exit Defendant’s van without personal or mechanical assistance, such as a step stool or other safety device.  (Compl., ¶ 8.) 

On July 13, 2022, Defendant filed this motion for an order requiring Plaintiff file an undertaking in the amount of $250,817.51 to secure an award of fees and costs. 

1. LEGAL STANDARD

Where a plaintiff in an action resides out of the state, the defendant may, at any time, apply to the court 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).)  The motion shall be made on grounds that the plaintiff resides out of the state and there is a reasonable possibility that the moving defendant will obtain judgment in their favor.  (Code Civ. Proc., § 1030, subd. (b).)  The motion shall be accompanied by an affidavit in support of the grounds for the motion and setting forth the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur.  (Code Civ. Proc., § 1030, subd. (b).)  “The purpose of [CCP § 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.)

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the court’s order requiring it, and if plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action shall be dismissed as to the moving defendant.  (Code Civ. Proc., § 1030, subd. (d).)

1. DISCUSSION

Defendant submits Plaintiff’s verified discovery responses showing that she is a resident of Colorado.  Therefore, the first element is satisfied.  Defendant next argues that there is a reasonable possibility of prevailing because Plaintiff cannot establish that “an unmodified standard height, family van posed a dangerous condition and that [Defendant] was negligent in any way for the Incident.”  (Motion, 4:1-3.) 

California Civil Code section 2100 states, “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”  Defendant includes a declaration from Renee Waite, the director of administration and client services, who authenticates photos of the van that Plaintiff complains of.  (Motion, Waite Decl., Ex. A.)  The van has a ground clearance of 5.6 inches and the cabin floor to the ground is approximately 16 inches.  (Waite Decl., ¶ 5.)  The van is also equipped with a manufacturer-installed internal grab handle.  (Ibid.)  Defendant argues that as a common carrier, its heightened duty of care does not include assisting Plaintiff with entering or exiting the vehicle, and ends once Plaintiff is “discharged into a relatively safe space.”  (Motion, 7:25-8:2, citing Falls v. San Francisco etc. R. R. Co. (1893) 97 Cal.114, 119; McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1017-1018.) 

Defendant also states that Plaintiff’s medical records show she was suffering from significant bilateral osteoarthritis of both knees prior to the Incident and, had the alleged Incident not occurred, she would have required total knee arthroplasties at some point in the future.  (Motion, 4:4-7.) 

In her opposition, Plaintiff argues that Defendant fails to meet its burden.  Plaintiff argues that as a common carrier, Defendant owed the highest degree of care to her, which did not necessarily end when the driver parked the van.  Plaintiff also states her version of events and declares that when she was boarding the van, she requested a stool from the driver and was informed no step was available, so she grabbed part of the bench seat to pull herself into the passenger compartment.  (Opp., Lewis Decl., ¶ 3.)  She claims she asked for a step stool again when preparing to disembark the van and that the driver responded no but came around to assist Plaintiff in exiting the van by giving her his shoulder to hold onto.  (Id., ¶¶ 4-5.)  Another flight attendant also offered to let Plaintiff hold her shoulder.  (Id., ¶ 5.) Plaintiff then hopped or “vaulted” from the van, injuring both her knees.  (Ibid.) 

Plaintiff also declares that the van depicted in the photos attached to Defendant’s moving papers is not the same one that she was riding; the van she was riding was an “older, commercial model transport van”, not a “family-style” van.  (Lewis Decl., ¶ 8.)  She states that the passenger compartment of that van was much higher off the ground and only had one slider door, whereas the van in the photo has passenger doors on both sides.  (Ibid.)  She also includes her in opposition papers a report prepared by an orthopedic consultant, Timothy S. O’Brien, who opines that the incident aggravated and accelerated the normal rate of progression of Plaintiff’s pre-existing osteoarthritis.  (Opposition, Karlin Decl., Ex. A, pp. 8-10.) 

The moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial.  Rather, moving party is required to show only that it was reasonably possible that they would win.  (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)  Based on the evidence produced by both parties, the Court finds that Defendant has made the required showing. 

However, Defendant’s calculation of the proposed undertaking includes attorneys’ fees and expert fees even though Defendant did not explain the basis for recovery attorneys’ fees and made no showing that an offer pursuant to Code of Civil Procedure section 998 has been made.  Also, Defendant apparently wishes to recover the costs for transcripts of court proceedings which are not ordered by the court.  Defendant’s calculation of court filing fees already incurred and expected also seem to be double counted in counsel’s declaration.  (Nhan Decl., compare ¶ 6A with ¶ 7.)  When these impermissible or questionable items are removed from Defendant’s request, the total sum is approximately $93,400, which is far less than the $250,817.51 demanded in the amount for an undertaking. 

1. CONCLUSION

Based on the foregoing, Defendant’s motion for an undertaking is GRANTED.  Plaintiff is ordered to file an undertaking in the amount of $93,400 not later than 30 days after service of the notice of ruling. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.