MARY ANN INGELFINGER VS UNIVERSAL CITY STUDIOS LLC

Case Number: BC583281 Hearing Date: May 09, 2016 Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, STANLEY MOSK COURTHOUSE
DEPARTMENT 93

MARY ANN INGELFINGER,

Plaintiff,

v.

UNIVERSAL CITY STUDIOS, LLC, et al.,

Defendants. Case No.: BC583281

Hearing Date: May 9, 2016

[TENTATIVE] ORDER RE:
MOTION FOR AN UNDERTAKING TO SECURE COSTS AND FEES

Defendant UNIVERSAL CITY STUDIOS, LLC’s Motion for an Undertaking to Secure Costs and Fees is GRANTED. Plaintiff MARY ANN INGELFINGER is ordered to file an undertaking in the amount of $8,560 within 30 days of service of this order.

The Court considered the moving papers, opposition, reply, and plaintiff’s supplemental declaration.

BACKGROUND

This is a premises liability case. Mary Ann Ingelfinger (“Plaintiff”) filed a complaint on May 27, 2015 asserting causes of action for General Negligence and Premises Liability against Universal City Studios, LLC (“Defendant”) and NBC Universal Theme Parks [NBC has since been dismissed]. Plaintiff alleges that on May 28, 2014 she tripped and fell over a wheel stop in the parking structure located on the premises owned by Defendant.

On March 9, 2016, Defendant filed a Motion for Security Undertaking. On April 5, 2016, the Court continued the hearing to allow plaintiff to file a supplemental declaration to provide the monthly MRD income from her IRA for the Court to consider before ruling on the motion.

LEGAL STANDARD

In an action or special proceeding brought by a nonresident plaintiff, the defendant may at any time move for an order requiring the plaintiff to post security. CCP §1030(a). The stated grounds for the motion are that: (1) the plaintiff resides out of state or is a foreign corporation, and (2) there is a reasonable possibility that the moving defendant will obtain a favorable judgment. CCP §1030(b).

DISCUSSION

Defendant requests that the Court impose an undertaking in the amount of $10,200 in accordance with CCP §1030.

A. OUT OF STATE RESIDENT

The parties do not dispute that Plaintiff resides in New York.

B. REASONABLE POSSIBILITY OF FAVORABLE JUDGMENT

CCP §1030(a) only requires the defendant to present “the best evidence available to divine the possible outcome of the trial . . . .” Shannon v. Sims Serv. Ctr., Inc. (1985) 164 Cal. App. 3d 907, 914.

Defendant argues that a reasonable possibility exists that it will obtain a judgment in its favor because the wheel stop does not constitute a dangerous condition, and thus it owed no duty to Plaintiff with respect to the Subject Incident. Plaintiff has not alleged the wheel stop was defective in any way. Video footage of the incident showed Plaintiff was not paying attention to where she is walking. Appropriate signage and a marked walkway around the wheel stop can be seen at the time of the incident. That same footage shows multiple other guests, including those accompanying plaintiff, easily observing and avoiding the obvious wheel stop immediately before the incident. The evidence in disputably shows the wheel stop in plain view. No negligence or dangerous condition may be inferred simply because plaintiff experienced a fall. Harpke v. Lankershim Estates (1951) 103 Cal. App. 2d 143, 145. The wheel stop did not create any unreasonable risk of harm.

In opposition, Plaintiff asserts Defendant breached its duty of care to her because the wheel stop was a tripping hazard. It was painted blue, the same color as the blue stripes on the ground marking the location of the handicapped parking space. Plaintiff contends there were no signs warning poles or signs indicating the presence of the tripping hazard and the parking space itself was dimly lit. Plaintiff’s only access to the escalator was through the handicap parking space. Plaintiff also argues that Defendant had actual knowledge of the tripping hazard. Further, Defendant should have anticipated that its invitees would include the elderly, potentially with compromised vision. Plaintiff contends that defendant’s own agent at the scene of the incident admitted that numerous pedestrians had previously tripped over the “bumper” in question.

Given the foregoing, the Court finds Defendant met its burden of proof to show there is a reasonable possibility that Defendant will prevail in this action.

C. PLAINTIFF’S REQUEST FOR WAIVER

The court has inherent power to relieve an indigent plaintiff of the bonding requirements under CCP section 1030. Bank of America National Trust & Savings Assn. v. Superior Court of Fresno County (1967) 255 Cal. App. 2d 575. “Where the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Code of Civil Procedure section 1030.” Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1433. “However, the plaintiff should make a prima facie showing that he has unsuccessfully attempted to obtain the required undertaking or that he is unable to furnish it.” Id. at 1434. “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.” Alshafie v. Lallande (2009) 171 Cal. App. 4th 421, 429. Moreover, “a plaintiff who has been granted in forma pauperis status has the right to a waiver of the undertaking. However, a plaintiff is not obligated to obtain in forma pauperis status to be entitled to a waiver of the section 1030 bond requirement.” Id. at 434.

Plaintiff contends that the undertaking requirement should be waived because although she does not suggest she is “indigent” as was the plaintiff in Baltayan, supra, it would be a financial hardship. Plaintiff states in her declaration that she is retired. Her sole sources of income are her Social Security benefits of just over $1300 per month and mandatory withdrawals from an IRA account. She also states that she can legally withdraw additional funds from her IRA account, but that doing so will result in additional income tax liability for her, which would further deplete her retirement funds, which she needs for the duration of her lifetime.

In opposition, Defendant contends Plaintiff fails to provide evidence that she qualifies as indigent. Defendant asserts Plaintiff only demonstrates that posting an undertaking would be an inconvenience for her.

The Court, sua sponte, takes judicial notice of Civil Form FW-001 pursuant to Evidence Code §452(h), which provides that a court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Additionally, the Court notes that, although Plaintiff did not request a fee waiver, the maximum gross income for an individual seeking a waiver is $1,237.50. Thus, it appears Plaintiff would not qualify for a fee waiver.

The Court also had noted that Plaintiff did not provide the monthly MRD income from her IRA. She was ordered to file a supplemental declaration by stating the amount of her monthly MRD from her IRA account for the Court to consider.

In Plaintiff’s supplemental declaration filed on 4/19/16, she states that although she has yet to receive a formal calculation from the IRA administrator for 2016, she is informed that she is required to withdraw approximately $1380 per month from her IRA account this year. She states that those withdrawals are gross distribution amounts, which are subject to state and federal income tax.

Plaintiff acknowledges that she is not “indigent”; thus, the law cited by plaintiff does not apply. She cites to no case law giving the Court authority to waive the undertaking based on a “financial hardship.” Further, plaintiff has not shown she is suffering from financial hardship.

Thus, plaintiff’s waiver of filing an undertaking is DENIED.

D. CALCULATION OF BOND AMOUNT

Defendant is requesting a bond of $10,200. Defendant contends that it has already been forced to incur approximately $2900 in recoverable costs and substantial attorney’s fees in defense of this matter. Additional future costs are reasonably anticipated to be $7,300, including multiple filing fees, witness fees, service costs, and multiple depositions costs with likely travel to and from New York. Jack D. Mantych Decl., 9.

Defendant does not provide a breakdown as to the costs. The Court calculates the bond amount as follows:

COST AMOUNT
Filing Fee for Answer to Complaint $ 435
Filing Fee for Motion for Summary Judgment 500
Filing Fee for Motion for Undertaking 60
Jury Fee Deposit 150
Jury Fees to Be Posted By Each Party (5 day trial) 525
Deposition of Plaintiff (Los Angeles), CSR Fees 750
Defense Expert Fees for Preparation of Declaration in Support of MSJ 3 Hours 900
Defense Expert (Engineering) Fees for Testimony at Trial, ½ Day 1,500
Defense Expert (Medical) Fees for Testimony at Trial, ½ Day 2,500
Court Reporter Fees Split by Each Party for 5 Day Trial 1,250
TOTAL $8,560

The motion is GRANTED. Plaintiff is ordered to file an undertaking in the amount of $8,560 within 30 days after service of this order.

DEFENDANT UNIVERSAL CITY STUDIOS, LLC is ordered to give notice of this ruling.

Dated: May 9, 2016

_______________________
Howard L. Halm
Judge of the Superior Court

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