Case Number: BC669933 Hearing Date: December 17, 2019 Dept: 4A

Motion for Undertaking in the amount of $12,696.50

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On August 1, 2017, Plaintiff Ronald Green (“Plaintiff”) filed his initial complaint against Defendant Los Angeles World Airports alleging negligence for a slip-and-fall that occurred on January 31, 2017.

On January 29, 2018, Plaintiff filed a first amended complaint to include allegations against unnamed employees and/or independent contractors hired by Defendant Los Angeles World Airports for the purpose of performing the cleaning, maintenance, construction, and/or inspection of the restrooms in the terminals at Los Angeles International Airport.

On June 12, 2019, Plaintiff filed a second amended complaint (“SAC”) to allege punitive damages and name individuals Michael Christensen (“Christensen”), Sean O. Burton (“Burton”), Cynthia Guidry (“Guidry”), Deborah Flint (“Flint”), Samson Mengistu (“Mengistu”), and Ryan Yakubik (“Yakubik”) as defendants.

On October 7, 2019, the Court dismissed claims against Defendant Christensen without prejudice.

Plaintiff’s operative pleading is the second amended complaint (“SAC”) and is against Defendants Los Angeles World Airports, Burton, Guidry, Flint, Mengistu, and Yakubik (collectively “Defendants”).

Plaintiff alleges that, on January 31, 2017, he slipped and fell on water after he washed his hands in a restroom at Los Angeles International Airport (“LAX”). (SAC ¶¶ 8, 23, 26.) Plaintiff further alleges that at the time of the incident, Burton was President of the Board of Commissioners of Los Angeles World Airports (“Board”), Guidry was the Deputy Executive Director of the Planning and Development Group on the Board, Flint was the Chief Executive Officer on the Board, Mengistu was the Chief Operating Officer on the Board, and Yakubik was the Deputy Executive Director on the Board. (SAC ¶¶ 13-17.) Plaintiff alleges that Defendants had actual inquiry and/or constructive knowledge of the dangerous condition in the LAX restrooms because the condition “existed for a sufficient period of time, and was of such an obvious nature that Defendants, in the exercise of due care, should have discovered the dangerous character of said condition and taken reasonable measures to make said condition safe.” (SAC ¶ 67.)

Trial is set for June 1, 2020.

PARTIES’ REQUESTS

Defendants ask the Court to set an undertaking in the amount of $12,696.50 to secure an award of costs because Plaintiff resides out of state and there is a reasonable possibility that Defendants will prevail.

Plaintiff opposes.

JUDICIAL NOTICE

Plaintiff requests the Court take judicial notice of (1) an unspecified document from Los Angeles Superior Court Case No. BC518329, Triplett v. Los Angeles World Airport, filed on August 14, 2013; (2) documents supporting Plaintiff’s motion for leave to amend; and (3) all documents supporting Plaintiff’s opposition to the motion for summary judgment.

Defendants do not oppose this request.

The existence and legal effect of these documents are judicially noticeable; reasonably disputable assertions of fact contained therein are not. (Evid. Code, § 452, subd. (c).)

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. (Id., 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. (Id., subd. (b).) “The purpose of [Code of Civil Procedure section 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.)

The moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial. Rather, the 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.)

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).)

DISCUSSION

Whether Plaintiff resides in California

Defendant argues that the Plaintiff does not reside in California. Plaintiff concedes this issue, claiming he resides in Georgia. (Mitchell Decl. ¶ 1.) Therefore, the Court concludes Plaintiff is an out-of-state resident for purposes of Code of Civil Procedure section 1030.

Whether Defendants have shown they have a reasonable possibility of prevailing

Defendants argue that they have a reasonable possibility of prevailing.

As a preliminary matter, the Court notes that its denial of Defendants’ summary judgment motion does not show that Defendants could not prevail in this action. That motion involved a different standard inapplicable here.

First, Defendants argue that Plaintiff’s operative SAC is based upon false assumptions. Specifically, Defendants argue that Plaintiff improperly compares his own fall with a separate accident by Lori Triplett, who slipped and fell in a different restroom in a different terminal that uses different tiles. (Brault Decl. ¶¶ 4-6.) Therefore, Defendants argue that the jury verdict in the Triplett case could not put Defendants on notice that every restroom in the airport was unreasonably slippery. Additionally, the Triplett verdict could not serve as collateral estoppel because it was vacated and thus is not a final judgment.

In response, Plaintiff argues that Defendants do not submit persuasive evidence that the two bathrooms are different because the submitted declaration does not include a statement that Defendants’ expert actually saw the bathroom tile in the Triplett case to compare it to the tile in this case.

The Court disagrees with Plaintiff. There is no requirement that Defendants’ expert inspect the bathroom tiles in the Triplett case to state an opinion that they are different from the ones involved in Plaintiff’s fall. Defendants’ expert is permitted to make such declaration based on his review of expert reports, specifications, and pictures.

It is further unclear how Plaintiff can demonstrate actual or constructive knowledge of a dangerous condition using the Triplett case. The airport is a large facility and the bathrooms were different and in different locations. Therefore, Defendants have a reasonable possibility of prevailing on the issue of whether they had notice that the floor tiles where Plaintiff fell were unreasonably slippery. While a jury could conclude that defendant did have notice, the Court cannot say that there is no reasonable possibility that Defendants will prevail, and that is the standard to use here.

Additionally, the Court further notes that Plaintiff does not explain how the Triplett case would implicate the individual defendants in this action, so at a minimum, Plaintiff should post an undertaking as to the individual defendants.

While Defendants make additional arguments in support of their motion, the Court does not find them persuasive, as explained below.

Defendants argue that Plaintiff failed to comply with the Government Claims Act in naming the individual defendants to the claim.

The Court has already rejected this argument in this case. Plaintiff’s claim substantially complied with the statutory requirement, identifying the date of injury (January 31, 2017), location (men’s restroom at Terminal 3, Gate 30), and general circumstances (slipped and fell). Plaintiff’s claim did have some errors, but the Court will not revisit its previous findings involving substantial compliance. Given that the purpose of the statute is to provide the public entity with sufficient information to adequately investigate claims and settle them, Plaintiff’s Government Code claim is liberally construed and its inconsistency does not preclude Plaintiff from bringing more specific allegations claiming civil liability for Defendants’ omissions that arose at the same time and involved the agents of the same entity defendant described in Plaintiff’s government claim.

Next, Defendants argue that the individual defendants are immune from suit and punitive damages. The Court struck Plaintiff’s prayer for punitive damages with leave to amend. However, it is unclear why Plaintiff’s stricken prayer should undercut the force of Plaintiff’s entire case, since she has other claims that survived this ruling.

Finally, Defendants argue that Restroom 330 was not negligently maintained. However, the Court does not find that Defendants have submitted sufficient evidence to show a reasonable possibility of prevailing on that issue. The photograph of the scene of the incident was taken at least 25 minutes after the incident and the conditions changed enough (i.e., water dried) that the Court cannot find that Defendants have shown a reasonable possibility of prevailing on that point.

Amount of undertaking

Defendants request an undertaking in the amount of $12,696.50.

Defendants provide proof that they anticipate the costs to total $27,696.50 (Kabani Decl. ¶ 5.) The Court notes that this projection includes the amount of expenses incurred thus far as well as those anticipated in the future. Therefore, Defendants’ estimate might be too high. Nevertheless, Plaintiff does not oppose the requested amount and it otherwise appears reasonable.

According, the Court finds the amount of $12,696.50 to be reasonable.

CONCLUSION

The Court GRANTS Defendants’ motion and sets an undertaking in the amount of $12,696.50.

Plaintiff is ordered to post this undertaking within 30 days of service of this order.

Defendants are ordered to give notice of this ruling.