Rosales v. County of San Diego et al, No. 3:2019cv02303 - Document 19 (S.D. Cal. 2020)
Court Description: ORDER denying 8 Defendants' Motion for security of costs. Signed by Judge Janis L. Sammartino on 9/09/2020. (jpp)
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Rosales v. County of San Diego et al Doc. 19 Case 3:19-cv-02303-JLS-DEB Document 19 Filed 09/09/20 PageID.179 Page 1 of 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOLORES ROSALES, Case No.: 19-CV-2303 JLS (LL) Plaintiff, 12 13 v. 14 COUNTY OF SAN DIEGO; SHERIFF WILLIAM D. GORE; DEPUTY TERENCE YORK, an individual; DEPUTY BRANDON DELIMA, an individual; DEPUTY EVAN MCCORMICK, an individual, DEPUTY NICHOLAS ADAMS, an individual; DEPUTY ERIC COTTRELL, JR., an individual, DEPUTY CARL FIELSTRA, an individual; DEPUTY BRIAN SCHAEFER, an individual; DEPUTY CHRISTOPHER PEREZ, an individual; SERGEANT DWAIN WASHINGTON, an individual, DEPUTY RONALD BUSHNELL, an individual; DEPUTY STEVEN FEALY, an individual; DEPUTY SCOTT ROSALL, an individual; and DOES 1 through 50, inclusive, 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER DENYING DEFENDANTS’ MOTION FOR SECURITY OF COSTS (ECF No. 8) Defendants. 28 1 19-CV-2303 JLS (LL) Dockets.Justia.com Case 3:19-cv-02303-JLS-DEB Document 19 Filed 09/09/20 PageID.180 Page 2 of 7 1 Presently before the Court is Defendants County of San Diego and William D. 2 Gore’s Motion for Security of Costs (“Mot.,” ECF No. 8), as well as Plaintiff Dolores 3 Rosales’ Response in Opposition (“Opp’n,” ECF No. 9) and Defendant’s Reply in Support 4 of (“Reply,” ECF No. 11) the Motion. The Court took this matter under submission 5 without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 10. Having 6 carefully considered the Parties’ arguments, the evidence, and the law, the Court DENIES 7 the Motion. 8 BACKGROUND 9 Marco Antonio Napoles died thirty-six hours after San Diego County Sheriff’s 10 deputies utilized physical force to detain him for trespassing at a gas station convenience 11 store in Fallbrook, California, on August 16, 2018. See ECF No. 1 (“Compl.”) ¶¶ 42–63 1; 12 see also ECF No. 8-1 (“Mot. Mem.”) at 1. Plaintiff, who is Napoles’ mother and a resident 13 of Mexico, brings a wrongful death suit as Napoles’ successor-in-interest against 14 Defendants. See Compl. ¶¶ 6–11. Specifically, Plaintiff sued Defendants for six federal 15 causes of action under 42 U.S.C. § 1983 for violations of Plaintiff’s and Napoles’ 16 constitutional rights under the Fourth, Eleventh, and Fourteenth Amendments. See Compl. 17 ¶¶ 72–79, 87–147. Plaintiff also alleged state law causes of action under California 18 Government Code section 820.8 and California Civil Code section 52.1. 19 ¶¶ 110–12, 123–27. See id. 20 On December 30, 2019, Defendants filed a motion for an order requiring Plaintiff to 21 post an undertaking under California Code of Civil Procedure section 1030. See Mot. 22 Plaintiff opposes on the ground that she was financially dependent on her son until his 23 death on August 17, 2018. See ECF No. 9-2 (“Rosales Decl.”) ¶ 4. Further, due to 24 depression and a fractured hand, Plaintiff is unable to work, see id. ¶ 5, and she now lives 25 with her daughter in Tijuana, Mexico. See id. ¶ 6. Plaintiff has “no way to pay the . . . 26 27 28 1 Plaintiff’s paragraphs are not numbered sequentially, although there do not appear to be any repeated paragraph numbers. Accordingly, the Court cites to the paragraphs as numbered by Plaintiff. 2 19-CV-2303 JLS (LL) Case 3:19-cv-02303-JLS-DEB Document 19 Filed 09/09/20 PageID.181 Page 3 of 7 1 requested bond.” See id. ¶ 7. Her only asset is a house in Tijuana, Mexico, that she 2 purchased for $232,771 pesos (MXN), or approximately $12,363 (USD), with a 3 combination of her savings, “small subsidies by government programs,” and her son’s 4 financial support. See id. ¶¶ 8, 9. Her monthly mortgage payments are approximately 5 $1,200 pesos (MXN) per month. Id. ¶ 9. Plaintiff now rents out this property for $1,400 6 pesos (MXN) a month, for a net profit of $200 pesos (MXN), or approximately $10.69 7 (USD), per month. See Opp’n at 6; Rosales Decl. ¶¶ 9, 10. 8 LEGAL STANDARD 9 “There is no specific provision in the Federal Rules of Civil Procedure relating to 10 security for costs.” Simulnet E. Assocs. v. Ramada Hotel Operating Co., 37 F.3d 573, 574 11 (9th Cir. 1994). “However, the federal district courts have inherent power to require 12 plaintiffs to post security for costs.” Id. (citing In re Merrill Lynch Relocation Mgmt., Inc., 13 812 F.2d 1116, 1121 (9th Cir. 1987)). “Typically federal courts, either by rule or by case- 14 to-case determination, follow the forum state’s practice with regard to security for costs.” 15 Id. (quoting 10 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2nd 16 § 2671). 17 18 19 20 21 22 23 24 In addition to following the forum state’s practice, the [c]ourt should balance several factors in assessing the propriety of requiring a plaintiff to post security for costs, including whether the litigation has “the appearance of vexatiousness” and: (i) the degree of probability/improbability of success on the merits, and the background and purpose of the suit; (ii) the reasonable extent of the security to be posted, if any, viewed from the defendant’s perspective; and (iii) the reasonable extent of the security to be posted, if any, viewed from the nondomiciliary plaintiff’s perspective. 25 26 A. Farber & Partners, Inc. v. Garber, 417 F. Supp. 2d 1143, 1146 (C.D. Cal. 2006) 27 (quoting Simulnet, 37 F.3d at 575–76). “The imposition of a costs bond is within the 28 [c]ourt’s discretion.” Brightwell v. McMillan Law Firm, No. 16-CV-1696 W (NLS), 2017 3 19-CV-2303 JLS (LL) Case 3:19-cv-02303-JLS-DEB Document 19 Filed 09/09/20 PageID.182 Page 4 of 7 1 WL 6944415, at *2 (S.D. Cal. May 12, 2017) (citing Kourtis v. Cameron, 358 F. App’x 2 863, 866 (9th Cir. 2009)). 3 Under California law, “[w]hen the plaintiff in an action . . . resides out of the state 4 . . . , the defendant may at any time apply to the court by noticed motion for an order 5 requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees 6 which may be awarded in the action of special proceeding.” Cal. Civ. Proc. Code 7 § 1030(b). “The motion shall be accompanied by an affidavit in support of the grounds for 8 the motion,” which “shall set forth the nature and amount of the costs and attorney’s fees 9 the defendant has incurred and expects to incur by the conclusion of the action or special 10 proceeding.” Id. 11 “To satisfy the requirements of section 1030, the [d]efendant must demonstrate a 12 reasonable possibility of success on each of [the p]laintiff’s claims.” 13 Altamirano, 418 F. Supp. 3d 530, 564 (S.D. Cal. 2019) (citing Brightwell, 2017 WL 14 6944415, at *2). “Section 1030(b)’s ‘reasonable possibility’ standard ‘is relatively low.’” 15 Id. (quoting Wilson & Haubert, PLLC v. Yahoo! Inc., No. C-13-5879 EMC, 2014 WL 16 1351210, at *3 (N.D. Cal. Apr. 4, 2014)). “But it ‘is not so low as to be non-existent.’” 17 Id. (quoting Wilson & Haubert, 2014 WL 1351210, at *3). “District courts should not 18 ‘read section 1030 so broadly as to require every out-of-state litigant who brings a non- 19 frivolous suit in California to post a bond simply because there is a reasonable chance the 20 defendant may prevail.’” Id. (quoting Wilson & Haubert, 2014 WL 1351210, at *3) (citing 21 BladeRoom Grp. Ltd. V. Facebook, Inc., No. 5:15-CV-01370-EJD, 2018 WL 1989530, at 22 *1 (N.D. Cal. Jan. 4, 2018)). “Further, the Ninth Circuit has cautioned that ‘[i]n requiring 23 a security bond for defendants’ costs, care must be taken not to deprive a plaintiff of access 24 to the federal courts.’” Id. (quoting Simulnet, 37 F.3d at 575–76). “While it is neither 25 unjust nor unreasonable to expect a suitor to put his money where his mouth is, toll-booths 26 cannot be placed across the courthouse doors in a haphazard fashion.” Id. (quoting 27 Simulnet, 37 F.3d at 576) (internal quotation marks omitted). 28 /// Johnson v. 4 19-CV-2303 JLS (LL) Case 3:19-cv-02303-JLS-DEB Document 19 Filed 09/09/20 PageID.183 Page 5 of 7 1 ANALYSIS 2 Defendants request that this Court order Plaintiff, a resident of Mexico, to post a 3 bond of $7,500, fifty percent of the amount Defendants estimate Federal Rule of Civil 4 Procedure 54 and Civil Local Rule 54.1 would entitle them to recover should they prevail. 5 See Mot. Mem. at 9, 10. Defendants argue that there is a reasonable possibility they will 6 prevail on each of Plaintiff’s claims. See Mot. at 2. In opposition, Plaintiff argues that 7 “she cannot afford to pay” this amount and that requiring her to do so will limit her access 8 to the courts. See Opp’n at 4. 9 Plaintiff does not dispute that, as a resident of Mexico, she “resides out of state.” 10 See Cal. Civ. Proc. Code § 1030(a); see ECF No. 1 ¶ 9. “Thus, ‘[t]he first requirement of 11 [section 1030] . . . is satisfied’” and “the court turns to the second element under . . . section 12 1030(b), which requires defendants to show a ‘reasonable possibility’ they will obtain 13 judgment in their favor.” A. Farber & Partners, 417 F. Supp. 2d at 1146 (alterations in 14 original) (quoting Ismart Int’l Ltd. v. I-Docsecure, LLC, No. C-04-03114 RMW, 2005 WL 15 588607, at *9 (N.D. Cal. Feb. 14, 2005)). 16 Based on a review of Defendants’ legal arguments and Plaintiff’s opposition, the 17 Court finds that Defendants have a reasonable possibility of prevailing on Plaintiff’s 18 claims. Defendants’ arguments meet the “relatively low” reasonable possibility standard. 19 See Johnson, 418 F. Supp. 3d at 564 (quoting Wilson & Haubert, 2014 WL 1351210, at 20 *3). Plaintiff does not respond to Defendants’ specific legal arguments; instead, Plaintiff 21 reiterates that the low bar of reasonable possibility is not “so low as to be non-existent.” 22 See Opp’n at 9. Although Plaintiff is correct, Defendants meet this standard. Accordingly, 23 Defendants satisfy the second requirement of Section 1030(b), and the Court now turns to 24 “the propriety of requiring [P]laintiff to post security for costs.” A. Farber & Partners, 25 417 F. Supp. 2d at 1146. 26 “[S]ection 1030(b) requires the defendant to provide an affidavit with the motion 27 that sets forth ‘the nature and amount of the costs and attorney’s fees” that the defendant 28 has and expects to incur.” Donshen Textile (Holdings) Ltd. v. Rabinowitz, No. CV 135 19-CV-2303 JLS (LL) Case 3:19-cv-02303-JLS-DEB Document 19 Filed 09/09/20 PageID.184 Page 6 of 7 1 09030 SJO (SHx), 2014 WL 12638884, at *3 (C.D. Cal. May 5, 2014). With their Motion, 2 Defendants include a declaration stating that Senior Deputy County Counsel has “reviewed 3 several cost bills submitted by [County of San Diego’s Office of County Counsel] in other 4 wrongful cases brought against Sheriff’s deputies” and found that the “average recoverable 5 litigation costs appear to be in the range of $15,000.” See ECF No. 8-2 (“Aceves Decl.”) 6 ¶ 2. Defendants also list the costs 28 U.S.C. § 1920 allows a prevailing party to recover. 7 See Mot. Mem. at 10. The Court finds that Defendants have met their burden of providing 8 the nature and amount of the costs under Section 1030(b); however, unlike in similar cases, 9 Defendants do not include an itemized list of incurred or expected expenses specific to this 10 case, which would allow the Court to balance more adequately the equities of the Parties. 11 See Gabriel Techs. Corp. v. Qualcomm, Inc., No. 08 CV 1992 MMA (POR), 2010 WL 12 3718848, at *15 (S.D. Cal. Sept. 20, 2010) (using an itemized chart of anticipated costs 13 provided by defendant to determine the reasonableness of each claimed cost and the total 14 amount); Pittman v. Avish P’ship, No. CV 10-1390-JST (OPx), 2011 WL 9160942 at *8 15 (C.D. Cal. June 2, 2011) (determining a reasonable bond amount by balancing a 16 supplemental brief, declaration, and detailed billing narratives from defendants’ attorney 17 with the plaintiff’s settlement proceeds). 18 This brings the Court to Plaintiff’s ability to post the requested bond. “The party 19 seeking relief from the requirement of posting a bond or undertaking has the burden of 20 proof to show entitlement to such relief.” Pittman, 2011 WL 9160942, at *5 (quoting 21 Williams v. FreedomCard, Inc., 123 Cal. App. 4th 609, 614 (2004)) (internal quotation 22 marks omitted). “Indeed, ‘because the range of information potentially relevant to the 23 court’s inquiry is virtually limitless, depending on the litigant’s individual situation, 24 [California courts have not] identif[ied] with precision what a plaintiff who has not 25 achieved in forma pauperis status must present to carry his or her burden of proof on this 26 issue.’” Id. (alteration in original) (quoting Alshafie v. Lallande, 171 Cal. App. 4th 421, 27 435 (2009)). 28 /// 6 19-CV-2303 JLS (LL) Case 3:19-cv-02303-JLS-DEB Document 19 Filed 09/09/20 PageID.185 Page 7 of 7 1 Here, Plaintiff submits a declaration stating: “I have no way to pay the Defendant’s 2 requested bond, I cannot afford such amount of money.” Rosales Decl. ¶ 7. Plaintiff 3 further explains that “[t]he only asset [she owns] is a small house in Tijuana, Mexico,” id. 4 ¶ 8, which is worth approximately $12,363 (USD), id. ¶ 9, and that her sole source of 5 income is the net rent she receives of $200 pesos (MXN) per month, see id. ¶¶ 4–5, 9–10, 6 which amounts to approximately $10.69 (USD). See Opp’n at 6. On this record, requiring 7 Plaintiff to post a security bond would deprive Plaintiff access to the Court. See Simulnet, 8 37 F.3d at 575–76 (cautioning that, “[i]n requiring a security bond for defendants’ costs, 9 care must be taken not to deprive a plaintiff of access to the federal courts” because “[t]o 10 do so has serious constitutional implications”). Accordingly, Plaintiff has shown that the 11 security bond should be waived based on her indigency. See Pittman, 2011 WL 9160942, 12 at *5 (holding that “a sworn statement of hardship that includes some financial information 13 but no supporting documentation may be sufficient” to show entitlement to relief from 14 posting a bond) (quoting Alshafie, 171 Cal. App. 4th at 432) (internal quotation marks 15 omitted); Godoy v. Cty. of Sonoma, No. 15-CV-00883-WHO, 2016 WL 6663003, at *2 16 (N.D. Cal. Nov. 10, 2016) (holding that declarations explaining plaintiffs’ income, 17 expenses, and employment status were sufficient to show indigency). 18 CONCLUSION 19 For the reasons set forth above, the Court DENIES Defendants’ Motion (ECF No. 20 8). 21 Complaint in accordance with Federal Rule of Civil Procedure 12(a). 22 Defendants County of San Diego and Gore SHALL RESPOND to Plaintiff’s IT IS SO ORDERED. 23 24 Dated: September 9, 2020 25 26 27 28 7 19-CV-2303 JLS (LL)
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