Case Number: BC667935 Hearing Date: June 27, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Adora Clinton,

Plaintiff,

v.

Kaiser Foundation HOspitals, et al.,

Defendants.

Case No.: BC667935

Hearing Date: June 27, 2018

[TENTATIVE] order RE:

Defendant’s motion for undertaking

BACKGROUND

In this action, Plaintiff Adora Clinton (“Plaintiff”) alleges that on August 15, 2015, she slipped and fell on a clear liquid on the floor in a building owned or controlled by defendant Kaiser Foundation Hospitals (“Defendant”). The complaint was filed on July 10, 2017, and the First Amended Complaint (“FAC”) was filed on September 12, 2017.

Defendant moves for undertaking in the sum of $30,000.00. Plaintiff opposes the motion.

LEGAL STANDARD

“When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking.” (CCP § 1030(a).) The plaintiff, however, will not be required to file an undertaking unless “there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.” (CCP § 1030(b).) The motion must be accompanied by an affidavit stating the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. (Id.)

If the motion is granted and the plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made. (CCP §1030(d).) “The determinations of the court under this section have no effect on the determination of any issues on the merits of the action or special proceeding and may not be given in evidence nor referred to in the trial of the action or proceeding.” (CCP §1030(f).)

However, even if a defendant establishes the ground for an undertaking, a trial court may, in its discretion, waive a provision for bond if plaintiff establishes indigency. (CCP §995.240; Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429; Baltayan v. Getemyan (2001) 90 Cal.App.4th 1427, 1433.) While obtaining in forma pauperis status entitles a plaintiff to waive the section 1030 bond requirement, this is not required as it is within the court’s discretion to grant such a waiver. (Alshafie, supra, 171 Cal.App.4th at 434.) Thus, the court must review the plaintiff’s showing, identify deficiencies, if any, and give the plaintiff the opportunity to supply additional information that may be necessary to his or her entitlement to a waiver under the particular circumstances of each case. (Id. at 435.)

DISCUSSION

Plaintiff’s Residency

It is undisputed by the parties that Plaintiff does not reside in California. According to Plaintiff’s discovery responses, she is currently a resident of Illinois.

Reasonable Possibility of Obtaining a Judgment

Defendant argues it has a reasonable possibility of prevailing at trial because Plaintiff has not yet identified the employees who may have seen her fall. Defendant provides Plaintiff’s discovery responses, wherein Plaintiff states that a nurse on the 6th floor told Plaintiff that the nurse had seen puddles of water left on the floor. (Pl. Resp. Form Interrog. 17.1) Plaintiff also states that a maintenance worker who had been cleaning the floor apologized and stated that the floor cleaning machine is not supposed to leave water on the floor. (Ibid.) Finally, Plaintiff states that the 6th floor nurse claims to have told maintenance about the liquid left by the floor machine. (Pl. Resp. Special Interrog. 35.)

In opposition, Plaintiff argues that Defendant’s evidence is insufficient to show that Defendant has a reasonable possibility of obtaining judgment. Plaintiff contends that Defendant is relying on Plaintiff’s initial discovery responses and Plaintiff’s deposition, which were obtained in the early stages of discovery. Plaintiff also points out that Defendant does not provide any affirmative evidence to show that Defendant would prevail.

Although there is no timeframe to bring this motion (such as after significant discovery has been conducted), Defendant’s evidence is sparse and insufficient to show it has a reasonable possibility of prevailing on the merits. Defendant argues that there is no evidence that one of its employees created the spill. However, this showing does not preclude a finding of liability. The relevant question is whether Defendant had actual or constructive knowledge of the liquid on the floor. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) According to the discovery responses by Plaintiff, there is evidence that an employee, the 6th floor nurse, knew of the dangerous condition and warned the maintenance workers about the dangerous condition. Yet, no actions were taken before Plaintiff fell. The fact that Plaintiff does not know the names or other information relevant to locating the witnesses does not mean that there is a reasonable possibility of Defendant prevailing at trial. Arguably, Defendant is in a better position to identify the employees who were working on that day. In addition, Defendant offers no affirmative evidence to show that it did not have constructive notice of the condition. Defendant has better means of ascertaining these facts than Plaintiff and yet has not presented any evidence to show that Plaintiff cannot meet her burden at trial.

On the record before the Court, the Court cannot conclude that there is a reasonable possibility that Defendant will prevail. Therefore, the motion is denied.

Amount of Undertaking Requested

Defendant seeks $30,000 in costs, exclusive of attorney’s fees, from Plaintiff. (Toczauer Decl., ¶ 5.) The costs that Defendant anticipates incurring are: (1) depositions of the parties in the action; (2) costs of bringing Plaintiff to California or travelling to Illinois for deposition; (3) obtaining medical records; (4) deposing healthcare providers; (5) expert witnesses (6) and costs of motions, jury fee deposits and court reporter fees. (Ibid.)

The Court notes that Defendant has not provided any breakdowns or estimated figures for the anticipated costs other than the total of $30,000. As such, the Court cannot evaluate whether these costs are reasonable and recoverable.

Indigence of Plaintiff

Even if the Court were to find that Defendant has established that he has a reasonable possibility of obtaining a judgment, the Court would still deny the motion based on Plaintiff’s representation that she is indigent.

Plaintiff asserts that she has a limited source of regular income, has no investments under her control, and has less than $1,000 in her bank account used to pay for routine living expenses. (Clinton Decl., ¶¶ 5-6.) She states that she has no real property or other appreciable assets. She owns one automobile: a 2006 Mitsubishi Eclipse. (Id., ¶ 4, 7.) Plaintiff’s only employment is part-time at Big Hearts Home Healthcare where she makes approximately $672.00 per month. (Id. ¶¶ 9, 10.) Plaintiff is the sole provider of income for herself, her husband, and their granddaughter. (Id. ¶ 8.)

The Court exercises its discretion to find that, based on Plaintiff’s declaration, which is made under the penalty of perjury under the laws of the State of California, and the request to Waive Court Fees form provided as Exhibit D, Plaintiff has established indigency for the purposes of not imposing an undertaking. The Court notes that Plaintiff is not required to file this action under forma pauperis in order to show she is indigent.

CONCLUSION AND ORDER

Defendant’s motion for undertaking is denied.

All parties should note that the hearing on this motion and all future hearings will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 27, 2018 ___________________________

Elaine Lu

Judge of the Superior Court