Case Number: SC116168    Hearing Date: September 12, 2014    Dept: O

SC116168
STEWARD v. RADNET

Defendant’s Motion for Undertaking is DENIED. Defendant fails to establish that he is entitled to an order requiring an undertaking under CCP 1029.6. Defendant only addresses his right to such an undertaking under CCP 1030. At the very least, both statutes apply and Defendant must establish his right to an undertaking under both statutes.

ANALYSIS: Defendant moves for an order requiring Plaintiffs to post an undertaking as out-of-state plaintiffs under CCP 1030. Defendant argues that under CCP 1030, Plaintiffs must post an undertaking in the amount of Defendant’s potential costs and fees because (1) they are out of state plaintiffs, as established by their discovery responses and (2) there is a reasonable possibility of the Defendant prevailing.

Plaintiff argues it is not reasonably possible for Defendant to prevail because Plaintiff already defeated one of the doctor’s summary judgment motions with an expert declaration. Plaintiff also reasons that the deposition testimony of another defendant doctor establishes the “debacle” that occurred when decedent became critical. Moreover, Plaintiff argues financial hardship as grounds for denying the request for undertaking.

“Code of Civil Procedure section 1030 provides that upon a defendant’s motion, the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney’s fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.” See Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430. The moving defendant is not required to show that the out-of-state plaintiff has no possibility of prevailing, but only that moving defendant has a “reasonable possibility” of prevailing. Id. at 1432 (finding that moving defendants’ sufficiently sustained their burden by directing court to arbitrator’s award and police report); Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 (reasonable probability of prevailing established by prior arbitration award in defendant’s favor on plaintiff’s claims).

Even if the defendant establishes the grounds for an undertaking per CCP §1030, the trial court may waive the requirement if the plaintiff establishes indigency. See Alshafie v. Lallande
(2009) 171 Cal.App.4th 421, 429; Baltayan, supra, 90 Cal.App.4th at p. 1433. CCP §995.240 provides, “The 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. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.”

“Whenever a complaint for damages for personal injuries is filed against a physician and surgeon…duly licensed as such under the laws of this state…or negligence in the performance of professional services…any such defendant may, within six months after service of summons, move the court for an order, upon notice to plaintiff and all defendants having appeared in the action, and hearing, requiring the plaintiff to file an undertaking in a sum not to exceed five hundred dollars ($500) as security for the costs of defense as provided in subdivision (d), which may be awarded against the plaintiff. The motion shall be supported by affidavit showing that the claim against the defendant is frivolous…[¶] At the hearing upon the motion, the court shall order the plaintiff to file the undertaking if the defendant shows to the satisfaction of the court that: (i) the plaintiff would not suffer undue economic hardship in filing the undertaking and (ii) there is no reasonable possibility that the plaintiff has a cause of action against each named defendant with respect to whom the plaintiff would otherwise be required to file the undertaking.” See CCP §1029.6.

Parties fail to address the interplay of CCP §§1029.6 and 1030. The express language of CCP 1029.6 indicates that it applies to medical malpractice claims such as Plaintiffs. Defendant fails to argue CCP 1029.6, which applies a much higher standard to require an undertaking in medical malpractice cases. Under CCP 1030, an undertaking may be required upon a showing that defendant has a reasonable possibility of prevailing. Under CCP 1029.6(a), an undertaking is reserved for those cases which are “frivolous” and in which the plaintiff has “no reasonable possibility of prevailing.” Defendant’s expert declaration merely creates a dispute as to liability and the reasonable possibility of Defendant prevailing. The declaration is not probative of Plaintiff’s possibility of prevailing. Plaintiff’s submission of his own expert’s declaration refutes any assertion that he has no possibility of prevailing.

Defendant’s Motion for Undertaking is DENIED. Defendant fails to establish that he is entitled to an order requiring an undertaking under CCP 1029.6. Defendant only addresses his right to such an undertaking under CCP 1030. At the very least, both statutes apply and Defendant must establish his right to an undertaking under both statutes.