Case Number: BC552213 Hearing Date: August 04, 2015 Dept: 93
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, STANLEY MOSK COURTHOUSE
DEPARTMENT 93

RENE ROY, et al.,

Plaintiff(s),

v.

YOCIO JONATHAN GOMEZ, et al.,

Defendant(s).

Case No.: BC552213

Hearing Date: August 4, 2015

[TENTATIVE] ORDER RE:
MOTION OF DEFENDANT, STEPHEN CHRISTOPHER CASERTA, FOR AN UNDERTAKING TO SECURE COSTS AND FEES

The Motion of defendant, STEPHEN CHRISTOPHER CASERTA, for AN UNDERTAKING TO SECURE COSTS AND FEES is GRANTED. Plaintiff Rene Roy is ordered to file an undertaking in the amount of $2,355 within 30 days.

BACKGROUND

This case arises out of a motor vehicle accident that occurred on July 22, 2012 (“Subject Incident”). Stephen Christopher Caserta (“Caserta”) was driving past a construction zone when a vehicle driven by Yocio Jonathan Gomez (“Gomez”) struck him from behind, causing Caserta’s vehicle to veer into the construction zone, killing Ricardo Zamora (“Decedent”).

On July 21, 2014, the daughters of Decedent, Rene Roy (“Roy”) and Yolanda Borgas (“Borgas”) (collectively “Plaintiffs”) filed a complaint (“Complaint”) asserting claims for Wrongful Death and Negligence against Gomez and Caserta. Caserta served the instant motion on July 8, 2015 and filed it a day later. Plaintiffs served an opposition by mail on July 23, 2015 – one day late – and filed it a day later. The Court declines to exercise its discretion under CRC Rule 3.1300 to refuse to consider late filed papers. No reply was filed.

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

A. OUT OF STATE RESIDENT

In this case, it is undisputed that Roy resides in Kentucky. Motion, 3:26; Declaration of Ronald Zurek (“Zurek Decl.”), ¶6. Therefore, the next issue is whether there is a reasonable possibility that Caserta will obtain a favorable judgment.

B. REASONABLE POSSIBILITY OF FAVORABLE JUDGMENT

Caserta asserts a reasonable possibility exists that he will obtain a judgment in his favor because the police concluded he was driving 42.7 mph at the time his vehicle was struck from behind by Gomez’s vehicle, which was traveling at approximately 92 mph. Additionally, Caserta asserts that, although the police arrested him on suspicion of driving while intoxicated, the police did not deem him to be a cause of the Subject Incident and he was found to not have been under the influence at the time of the Subject Incident.

In opposition, Plaintiffs contend there is not a reasonable possibility that Caserta will obtain a favorable judgment because, at the time of the Subject Incident, Caserta was driving dangerously slow. Plaintiffs also assert Caserta failed to meet his burden of demonstrating he has a reasonable possibility of prevailing in this action because he only provides: (1) the opinion of a police officer, and (2) the fact that Gomez was convicted of driving under the influence.

CCP §1030(a), however, 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. Thus, although there are competing facts going to the issue of whether Caserta’s driving speed caused or contributed to the Subject Incident, the Court finds Caserta met his burden of showing a reasonable possibility exists that he will prevail at trial.

Accordingly, this motion for an undertaking to secure costs and fees is GRANTED.

C. COST ESTIMATE

A motion for an undertaking must be accompanied by a memorandum of points and authorities and a supporting affidavit or declaration which establishes the stated grounds for the motion and sets forth the nature and amount of the costs and attorney fees the defendant has incurred and expects to incur until the action is concluded. CCP ¿1030(b), CRC 313(a). Even where adequate grounds exist for granting the motion for security, the plaintiff can still challenge the amount of the costs and attorney fees requested by the defendant. The security can be ordered only for “reasonable” attorney fees, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision. CCP ¿1030(a).

Caserta seeks an undertaking in the amount of $36,810. According to the Zurek Declaration, this amount includes the items listed below with the court’s finding as what would be reasonable and necessary under the facts presented and known at this time.

(a) Filing fees: Answer $435, Motion for Summary Judgment $500 = $935; REASONABLE AMOUNT: $935.

(b) Deposition transcripts for 2 plaintiffs ($1,000), 5 police officers ($1,500), 4/8 witnesses ($1,200), Government Code witness fees and subpoena fees x 9 = $750, $675; REASONABLE AMOUNT: $1,120. 2 police officers (investigating officer for accident, investigating officer for DUI), 2 other witnesses reasonable unless good cause shown.

(c) Plaintiff’s travel costs for deposition if ordered to Los Angeles = $1,250; REASONABLE AMOUNT: $0. Cannot be determined at this time without more information.

(d) Subpoenaed records on decedent = $600; REASONABLE AMOUNT: $300. Costs allowed for service of subpoena fees, not costs in preparing subpoena.

(e) Expert witness fees depending on CCP §998 outcome = $19,000. REASONABLE AMOUNT: $0. Cannot be determined at this time as too speculative and may not be needed if motion for summary judgment granted.

(f) Exhibits and Enlargements = $1,500; REASONABLE AMOUNT: $0 Cannot be determined at this time without more information and may not be needed if motion for summary judgment granted.

(g) Jury fees = $900; REASONABLE AMOUNT: $0. Cannot be determined at this time and may not be needed if motion for summary judgment granted.

(h) Court reporter fees = $4,200; REASONABLE AMOUNT: $0. Cannot be determined at this time and may not be needed if motion for summary judgment granted.

(i) Attorney fees under CCP §2034.420 = $4,000; REASONABLE AMOUNT: $0. Too speculative—see explanation below.

Although Plaintiffs failed to address the cost estimate in their opposition, regarding item (i) above, the Court notes CCP §2034.420 fails to provide a proper basis for an award of attorney’s fees. CCP §2034.420 states:

“The deposition of any expert described in subdivision (b) of Section 2034.210 shall be taken at a place that is within 75 miles of the courthouse where the action is pending. On motion for a protective order by the party designating an expert witness, and on a showing of exceptional hardship, the court may order that the deposition be taken at a more distant place from the courthouse.”

Thus, the Court finds the $4,000 claim in attorney’s fees is not reasonable and should be subtracted from the cost calculation.

Accordingly, based on the reasons provided above, the total undertaking required is $2,355.

STEPHEN CHRISTOPHER CASERTA is ordered to give notice of this ruling.

Dated: August 4, 2015

_______________________
Howard L. Halm
Judge, Los Angeles Superior Court