Case Number:?BC650381????Hearing Date:?May 10, 2019????Dept:?24
Defendants?Boucher, LLP, Raymond P. Boucher, Hermez Moreno and Brian Bush?s?motion to require Plaintiff Lenny Dykstra to post an undertaking is GRANTED. The Court will require a bond in the reduced amount of $25,000.00 to be posted within 30 days.
This legal malpractice action arises out of Plaintiff Lenny K. Dykstra?s (?Plaintiff?) allegations that his former attorneys, Defendants Boucher, LLP (the ?Firm?); Raymond P. Boucher (?Boucher?); Hermez Moreno (?Moreno?); and Brian Bush (?Bush?) (collectively ?Defendants?), failed to properly prosecute his civil rights action brought under 42 U.S.C. ? 1983 against the County of Los Angeles Sheriff?s Department and numerous individual deputies,?Lenny K. Dykstra v. County of Los Angeles, et al., LASC Case No. BC541436, involving two alleged beatings of Plaintiff that occurred inside the County Jail on or about April 5 and April 6, 2012 (the ?Underlying Action?).
Plaintiff?in pro per?commenced this action against Defendants on February 14, 2017. On July 24, 2017, Plaintiff, represented by counsel, filed the operative second amended complaint (?SAC?) alleging two causes of action for negligence (legal malpractice) and breach of fiduciary duty. On November 21, 2017, the Court sustained Defendants? demurrer to the breach of fiduciary duty claim without leave to amend. Defendants filed an answer to the SAC on December 1, 2017.?Trial is set for June 11, 2019.
On March 27, 2019, Defendants filed the instant motion to require Plaintiff to file an undertaking of $75,000.00. On April 29, 2019, Plaintiff filed an opposition and an unopposed motion to seal parts of the opposition. On May 3, 2019, Defendants filed a reply to the undertaking motion.
Motion to Seal
Plaintiff requests that portions of the opposition and supporting documents that discuss Dykstra?s confidential financial affairs be sealed.
The sealing of trial court records is governed by CRC Rules 2.550 and 2.551. (Mercury Interactive Corp. v. Klein?(2007) 158 Cal.App.4th 60, 68.) The court may nevertheless order a record sealed if it finds: ?(1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.? (CRC, Rule 2.550(d).) The Court must specifically state in its order the facts supporting its findings. (CRC, Rule 2.550(e)(1)(A).) A party seeking to seal a court record or seeking to file a record under seal must do so by motion or application supported by a declaration showing facts justifying the record?s sealing. (CRC, Rule 2.551(b)(1).)
Plaintiff requesting sealing of portions of the following documents: a) Opposition (specifically the financial numbers on page 9, lines 14?15, 17?18, 20, 22?27 and on page 10, line 10); b) Declaration of Lenny K. Dykstra (specifically page 3, line 27, page 4, lines 6?7, 11?13, 15?16, 21, 23?24, and page 5, line 4); c) Exhibit 27 to the Dykstra Declaration (personal profit and loss statement); d) Exhibit 28 to the Dykstra Declaration (US Bank statement); and e) Exhibit 29 to the Dykstra Declaration (TD Bank statement).
These documents all pertain to plaintiff?s personal financial information, which is only at issue for purposes of this motion. A ?right to privacy may be properly described as a compelling or overriding interest.? (In re Marriage of Burkle?(2006) 135 Cal. App. 4th 1045, 1063.) This ?right to privacy extends to one?s personal financial information.? (Ibid.)
Upon review of the above?the Court finds that there exists an overriding interest that overcomes the right of public access to the record is overcome by the Plaintiff?s right to financial privacy. If these were not sealed, these private financial records would be disclosed and Plaintiff?s right to privacy will be prejudiced. Further, Plaintiff narrowly tailored the sealed documents such that only the private information is sealed.
As there is no less restrictive means to support Plaintiff?s privacy interest, the unopposed motion to seal the financial records and portions of the opposition is GRANTED.
Legal Standard for Undertaking
A defendant may require an out of state plaintiff to post a bond. To obtain an order requiring such bond, defendant must show a ?reasonable possibility? that it will prevail at trial, and a detailed estimate of the costs it is likely to incur. Code of Civ. Proc. section 1030 states, in relevant part:
(a) 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 to secure an award of costs and attorney?s fees which may be awarded in the action or special proceeding. For the purposes of this section, ?attorney’s fees? means reasonable attorney?s fees a party may be authorized to recover by a statute apart from this section or by contract.
(b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney?s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.
(c) If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court?s order as security for costs and attorney?s fees.
???????The statute serves the purpose of avoiding difficulty of trying to enforce a costs judgment against a nonresident. (See?Shannon v. Sims Service Ctr., Inc.?(1985) 164 Cal.App.3d 907, 915.)
???????It is undisputed that Plaintiff is an out-of-state resident. Thus, the Court is presented with two issues; whether Defendants show reasonable possibility that they will obtain judgment in the action; and 2) whether Plaintiff is indigent, such that he could not post the bond.
???????The Court is well acquainted with the evidence and facts of the case. On May 8, 2019, the Court ruled on Defendants? motion for summary judgment. The Court denied the motion on the grounds that triable issues of material facts existed as to causation. While Defendants failed to obtain summary judgment, the evidence presented in this motion (identically presented by both sides in the MSJ) is sufficient to establish a reasonable possibility that he will obtain judgment in the action. As to the ?reasonable possibility? element, defendant?s burden is low and merely requires defendant to show a reasonable possibility that he will prevail, as opposed to showing that there is no possibility that plaintiff will prevail or that no material disputes of fact exist. (Baltayan v. Estate of Getemyan?(2001) 90 Cal.App.4th 1427, 1432.)
???????Here, Defendants? evidence demonstrates multiple issues with causation, both proximate and ?but for? causation. For example, many of the purported acts of negligence in the litigation may have been attributable fully to either Plaintiff or his former counsel, such as when 20 of the individual defendants were dismissed due to Plaintiff?s failure to serve them for months prior to Defendants entering the case. Some of the alleged errors were either caused by Plaintiff or could have been cured by subsequent counsel. (See also?Steketee v. Lintz, Williams & Rothberg?(1985) 38 Cal.3d 46, 57 [an attorney?s alleged mistake could be cured by subsequent counsel, it is the subsequent counsel who proximately caused the client?s harm].) Further, Defendants highlight numerous credibility issues for Plaintiff that could lead a reasonable juror to disbelieving Plaintiff?s version of the facts related to the assaults in the underlying case, which potentially cuts off causation entirely. Therefore, Defendants have established the burden of a reasonable possibility of prevailing.
???????Even so, the Court has discretion to waive a plaintiff?s undertaking if it were find a plaintiff indigent. Code Civ. Proc., section 995.240 states:
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.
?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.? (Baltayan, supra, 90 Cal.App.4th at 1433.)
Here, Plaintiff presents evidence of indigency, including his financial records of bank accounts and declarations regarding his income. As these will be sealed, the Court will not comment further on the precise level of income of Plaintiff. However, the Court does not find these declarations persuasive to establish that he cannot afford a bond in light of several factors. For one, Plaintiff does have an established history of misrepresenting financial information to the courts, which weighs heavily against his credibility in this regard. Defendants also note that Plaintiff omitted several sources of income that go undiscussed in the opposition and declaration which also weigh against the credibility of his declaration. (See Williams Decl., ?? 2-8, 10; Exs. 11-17, 19.) For example, Plaintiff does not state how much his home is worth, only that Titan Equity LLC owns the home, has no income, and that Titan?s debts on the property exceed its value; whereas Defendants present evidence that Plaintiff has spent $200,000.00 renovating the home and that it is currently valued at $439,000. Therefore, the Court will not exercise its discretion to waive Plaintiff?s bond.
The Amount of the Undertaking
The Court does not find that Defendants established that the requested $75,000.00 bond is supported.?Defendants state that they are entitled to these as costs because of a section 998 statutory offer to compromise, served in February 2019.?These costs include costs for multiple witness depositions, court reporters, videographers, witness fees, and process servers, four expected experts at trial, and other associated fees and costs. (Feenberg Decl., ? 10.) Defendants only baldly state that they ?expect? to incur as much as $75,000.00 in costs associated with litigation and trial costs, including expert witnesses, without a sufficient basis for this number, including the rates of those witnesses, and other critical information to evaluation whether this expectation in costs is reasonable. Thus, the Court finds that the requested bond is unreasonably high. The Court therefore will require only a $25,000.00 bond.
Moving party is ordered to give notice.