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G.S. v. Sajahtera, Inc.

California Court of Appeals, Second District, First Division
Apr 29, 2009
No. B206769 (Cal. Ct. App. Apr. 29, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SC090429 Jacqueline A. Connor, Judge.

G.S., in pro. per., for Plaintiff and Appellant.

Murchison & Cumming, Guy R. Gruppie, Eric P. Weiss and Nanette F. Reed for Defendants and Respondents.


ROTHSCHILD, J.

G.S., a resident of Florida, appeals from the judgment entered after his personal injury action was dismissed because he failed to post an undertaking to secure any future award of costs. He contends the court abused its discretion in failing to grant his application to proceed in forma pauperis which he asserts, had it been granted, would have required the court to deny the defendant’s motion that he post an undertaking. On this record we find no abuse of discretion and accordingly affirm.

BACKGROUND

G.S. considered Los Angeles his second home and while in Los Angeles was a frequent patron of The Beverly Hills Hotel’s (Hotel) coffee shop and Polo Lounge. In April 2004, Hotel management informed G.S. that he was no longer welcome to patronize the establishment. In May 2004, G.S. wrote a letter to the managing director of the Hotel asking the Hotel to rescind its decision. The Hotel did not change its decision.

In July 2005, G.S., his brother, and a friend were on the Hotel premises. Security personnel asked them to leave. As security personnel escorted G.S. out of the Hotel a physical altercation occurred resulting in both G.S.’s and his brother’s arrest by the Beverly Hills Police Department.

In July 2006, G.S. and his brother filed suit against Sajahtera, Inc., doing business as The Beverly Hills Hotel and the Hotel security personnel involved in the altercation, alleging claims for false arrest and imprisonment, assault, battery, intentional infliction of emotional distress, negligent hiring and supervision, and other claims.

This court dismissed the brother’s appeal as abandoned. Consequently, this appeal concerns G.S. only. We use the party’s initials to preserve the confidentiality of his financial information.

In July 2007, the Hotel filed a motion pursuant to Code of Civil Procedure section 1030, joined by the other defendants, requiring G.S., as an out-of-state resident, to post an undertaking to secure any future award of costs. The Hotel supported its motion with deposition testimony and documentary evidence showing that (1) G.S. lived in Florida and (2) had unpaid judgments entered against him. The Hotel claimed it had already incurred over $50,000 in costs associated with local depositions and that it expected to incur additional costs for depositions of G.S.’s parents in Florida and of G.S.’s physicians in Florida and in Holland.

Code of Civil Procedure section 1030 provides in pertinent part:

G.S., represented by counsel, filed opposition, contending that Code of Civil Procedure section 1030 was unconstitutional and that, in any case, the Hotel had failed to establish a “reasonable possibility” of prevailing on the merits, a condition of ordering an undertaking. G.S. filed a declaration in support of his opposition in which he gave his version of the altercation at the Hotel, and described the physical injuries and medical treatment he had received as a result. In his declaration, G.S. stated that he had moved from Beverly Hills to Florida to live with his parents for medical reasons and detailed his preexisting and current medical and psychological problems for which he sought treatment. G.S. explained that he traveled to Holland for treatments and medication because he had been “confronted with long delays in receiving appointments and treatment” through the local public health system. G.S. also explained that the reason he was not seeking damages for past or future lost wages was because that as an unemployed writer he had no earnings.

The court denied the Hotel’s request for an undertaking without prejudice.

On September 28, 2007, G.S.’s counsel filed a motion to be relieved which the court granted on November 1, 2007.

After taking the depositions of Hotel security personnel, Beverly Hills Police Department personnel, and other witnesses, the Hotel moved for summary adjudication of G.S.’s causes of action for false arrest and imprisonment.

In November 2007, the Hotel renewed its motion requesting that G.S. post an undertaking. In support of its motion, the Hotel presented the deposition testimony of G.S. that he lived in Florida and that he had outstanding unpaid judgments against him. To support its claim of a “reasonable possibility” of success on the merits, the Hotel presented the deposition testimony of numerous witnesses to the altercation. The Hotel asserted that it had already expended $50,000 in costs and further asserted that G.S. had the financial ability to post an undertaking based on G.S.’s deposition testimony that he supported himself from the distributions of a trust and an inheritance.

G.S. secured new counsel who substituted into the case on December 27, 2007. On January 16, 2007, G.S. filed opposition to the Hotel’s renewed request for an undertaking. He did not dispute that he lived in Florida or that he had outstanding unpaid judgments. In his declaration, however, G.S. claimed that he was indigent “and living off the charity of others including my family, and the U.S. Government. I am presently without private health insurance and cannot cover the costs of my own healthcare. I live with my mother and father. I have no outside means of support or income, including a trust or an inheritance, as the defendant alleges.” He did not describe the charity, support or income he received from his family and others, nor explain in what way the Hotel’s assertions that he had funds from an inheritance and a trust were untrue. G.S. attached as an exhibit to his opposition a copy of an “Application For Waiver of Court Fees and Costs,” Judicial Council form FW-001, signed under penalty of perjury, in which he placed a zero on every line requesting information regarding income, assets and expenses, including questions regarding money received by him monthly, and the names of persons living in his household on whom he depended for support, their relationship to him, and their income. G.S. also attached as an exhibit a copy of a letter from North Broward Hospital District dated September 25, 2007, conditionally granting him financial assistance for medical care based on his representation that he was a family of one with a family income of $119.67.

The Hotel filed a reply to G.S.’s opposition asserting that G.S.’s claim of indigence was false and requesting the court to deny the application or, in the alternative, hold an evidentiary hearing to explore G.S.’s financial condition. The Hotel supported its assertion of falsehood with excerpts from G.S.’s deposition testimony taken in March and April 2007 in which G.S. discussed supporting himself with funds from an inheritance from his grandmother, stating that he was a beneficiary of a trust, describing several recent European vacations and trips to his doctor in Holland, and explaining that he had not paid for some of his several trips to Los Angeles during the course of the litigation nor for some of his trips abroad because either his parents or brother paid his expenses for those trips.

On January 24, 2008, the court denied G.S.’s application for a waiver of court fees and costs, found that the Hotel had demonstrated a reasonable possibility of prevailing at trial, and set the undertaking at $20,000 to be posted within 30 days. The court found G.S.’s application to proceed in forma pauperis lacked credibility. “[G.S.] has failed to provide a plausible or supported application for [a] fee waiver. On the ‘Financial Information’ portion of the application, [G.S.] has listed only zeros. Zero monthly income. Zero ownership interests in any type of asset, including vehicles or other personal property. Zero monthly expenses. This is simply not credible.” The court also considered G.S.’s documentary proof of indigence insufficient. The court reasoned that the Hotel made its first request for an undertaking more than six months earlier, G.S. knew that the Hotel’s request for an undertaking remained an issue, yet the only evidence G.S. offered in support of his claim of indigence was the exhibit from the North Broward Hospital District, which document, the court noted, lacked any indication that his application for financial assistance had either been investigated or verified. The court similarly questioned the timing of G.S.’s request for a fee waiver, commenting that he “was on notice, and in all of this time since the case was filed in July of ‘06 there has not been one whiff of indigency[.]”

Although represented by counsel G.S. personally filed a 40-page motion for reconsideration. Thereafter, G.S.’s counsel filed a request to withdraw as counsel. On March 7, 2008, the court granted counsel’s request to withdraw, denied G.S.’s motion for reconsideration, and dismissed the case (without prejudice) because G.S. failed to file an undertaking within the prescribed period.

G.S. appeals from the ensuing judgment of dismissal.

DISCUSSION

General Principles Governing Undertakings

“Code of Civil Procedure section 1030 provides that upon a defendant’s motion, the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney’s fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) If the plaintiff fails to file an undertaking after the court determines grounds for the motion have been established, the plaintiff’s action “shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.” (Code Civ. Proc., § 1030, subds. (c) & (d).)

Effect of Indigence On A Request For An Undertaking

Despite a defendant establishing grounds for an undertaking pursuant to Code of Civil Procedure section 1030, a court may in its discretion waive the undertaking 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....” (Code Civ. Proc., § 995.240; see also, Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1433 [“(w)here the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Code of Civil Procedure section 1030”].)

Code of Civil Procedure section 995.240 provides: “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.”

An indigent plaintiff may also seek a waiver of court costs and fees by applying to proceed in forma pauperis, which waiver “could include a section 1030 undertaking as an additional court fee or cost (see Cal. Rules of Court, rule 3.62(6))[.]” (Alshafie v. Lallande (2009)171 Cal.App.4th 421, 433; Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1435 [a plaintiff who has been granted in forma pauperis status has the right to a waiver or reduction of the undertaking].)

An applicant seeking to proceed in forma pauperis must complete a mandatory Judicial Council form (FW-001). Government Code section 68511.3 directs a court to grant such application to a litigant who is receiving government benefits from certain public assistance and supplemental income programs (Gov. Code, § 68511.3, subd. (a)(6)(A)), as well as to a litigant whose monthly income is 125 percent or less of the current monthly federal poverty guidelines. (Gov. Code, § 68511.3, subd. (a)(6)(B).) A court may also waive court fees and costs for other persons, “when, in the court’s discretion, this permission is appropriate because the litigant is unable to proceed without using money that is necessary for the use of the litigant or the litigant’s family to provide for the common necessaries of life.” (Gov. Code, § 68511.3, subd. (a)(6)(C); see also, Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 181.) When the applicant claims indigence based on an average monthly income of 125 percent or less of the poverty guidelines, or seeks a discretionary fee waiver, the litigant is required to complete those parts of form FW-001 requiring disclosure of detailed financial information, including, all sources of income, interests in bank accounts, assets valued over $500, and monthly expenses such as rent, food, supplies, clothing, medical care and transportation. (Cruz v. Superior Court, supra, 120 Cal.App.4th at pp. 181-182.)

“[I]f the court has good reason to doubt the truthfulness of the factual allegations in the application,” the court may request additional documentation. (Cal. Rules of Court, rule 3.53(b).) If a court “determines that there is substantial evidentiary conflict concerning the applicant’s eligibility to proceed in forma pauperis,” the court should hold a confidential hearing into the applicant’s financial condition. (Cal. Rules of Court, rule 3.58(a) & (b).)

An order denying an application to proceed in forma pauperis may be reviewed on appeal from the final judgment. (Premium Commercial Services Corp. v. National Bank of California (1999) 72 Cal.App.4th 1493, 1498-1499 [unless the Legislature has required a writ petition as a prerequisite to appellate review, an interim ruling may be reviewed on appeal from a final judgment]; cf. Isrin v. Superior Court (1965) 63 Cal.2d 153, 154-155 [a ruling denying an indigent plaintiff the right to proceed in forma pauperis may be reviewed by extraordinary writ].)

Constitutional Challenge to Code of Civil Procedure Section 1030

G.S. contends that Code of Civil Procedure section 1030 is unconstitutional. We disagree. As the Court of Appeal held in Yao v. Superior Court (2002) 104 Cal.App.4th 327, the statute in its current form “violates neither federal nor state due process guarantees.” (Id. at p. 331 & fn. 3.)

Discretionary Denial of G.S.’s Fee Waiver Application

G.S. contends the court abused its discretion in denying his application for a waiver of court fees and costs based on its finding that the financial information provided in his fee waiver application was not credible. We disagree.

The court explained its reasons for denying G.S.’s waiver application after reviewing the materials filed with the court in support of and in opposition to the Hotel’s two requests for an undertaking. (Earls v. Superior Court (1971) 6 Cal.3d 109, 115 [the court must provide a statement of its reasons for denying an application to proceed in forma pauperis to enable the litigant to correct any errors and to provide a basis for appellate review].) The court found that G.S.’s declaration was insufficient to establish indigence, commenting “The declaration fail[ed] to address whether he owns any other personal property that might be used as collateral to secure the bond or whether he has a friend or relative who would be willing to either post a cash bond or pay the premium on a surety bond and whether he even attempted to obtain a bond. [G.S.’s] history of travel, frequenting hotels such as the Beverly Hills Hotel, and statements as ‘my family [has] earned more than anyone in the history of media and owned more of it’ ([G.S.] letter dated May 10, 2004 [to the Hotel]) reasonably cast doubt upon his indigency claim.” The court similarly found G.S.’s in forma pauperis form lacked credibility, citing its belated timing and what it concluded were implausible claims of no income, no assets, and no expenses. “[G.S.] has listed only zeros for his financial information. Second, this is the first time since the action was commenced in July 2006 and since the motion for undertaking was filed in July 2007 that [G.S.] has claimed indigence or a right to proceed in forma pauperis. Third, absolutely no supporting documents have been provided establishing that [G.S.] is in fact indigent or qualifies for relief as a forma pauperis plaintiff.”

A necessary implication of rejecting G.S.’s claim of zero assets, zero income, and zero expenses as incredible was that the court also rejected his assertion that his zero income meant that his income fell below the federal poverty line which would have entitled him to in forma pauperis status. (Gov. Code, § 68511.3, subd. (a)(6)(B).)

Weighing evidence, assessing credibility, and resolving conflicts in evidence and the inferences to be drawn from evidence are the domain of the fact finder. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) An appellate court will uphold a trial court’s determinations of credibility if supported by substantial evidence. (Tin Tin Corp. v. Pacific Rim Park, LLC (2009) 170 Cal.App.4th 1220, 1225.) Substantial evidence supports the trial court’s conclusion that his fee waiver form was implausible on its face. It is implausible because, among other reasons, it claims no expenses. Nor were the deficiencies in the form cured by the information G.S. provided in his declaration. In his declaration G.S. never stated that he received no funds from any source, nor did he describe the extent and type of “charity” he received from family members and others.

Further, for example, the court could reasonably have concluded that G.S.’s failure to list “all the persons living in your home,... on whom you depend in whole or in part for support,” their names, relationship and gross monthly income, amounts received in “parental support,” amounts received in “support from outside the home,” and his household’s “gross monthly household income” was inconsistent with his own claims that his family and others supported him. The copy of the application G.S. attached to his opposition showed that he stated he was a family of “1” whose gross monthly income was “0.” Given his deficient showing of indigence, G.S. has failed to demonstrate the trial court abused its discretion in denying his application to proceed in forma pauperis or in setting the bond at $20,000. (Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1434 [trial court abuses its discretion when it acts arbitrarily, capriciously or in an absurd fashion].)

Hearing On G.S.’s Fee Waiver Application

In the alternative, quoting Cruz v. Superior Court, supra, 120 Cal.App.4th at page 190, G.S. asserts that the “judicial officer’s disbelief of the asserted need for a fee waiver creates an evidentiary conflict[,]” in which case “the applicant must be given an opportunity to respond to the” court’s concerns. Because, he contends, he was neither asked to produce additional documentation, nor given the opportunity to be fully heard at a hearing before the court denied his application, G.S. asserts that the judgment must be reversed and the cause remanded for an evidentiary hearing on his in forma pauperis application. We disagree.

After his fee waiver application was denied by the trial court, G.S. apparently sought and received a fee waiver for this appeal. G.S. included a copy of an order as an attachment to his opening brief. The record, however, does not contain the information G.S. supplied Commissioner Murray Gross when seeking the fee waiver.

The court provided G.S. with a hearing on his application to proceed in forma pauperis, albeit not the precise type of hearing contemplated by rule 3.58(b) of the California Rules of Court. The court held a combined hearing on the Hotel’s request for an undertaking and on G.S.’s request to proceed in forma pauperis. At the hearing the court reviewed G.S.’s declaration, his fee waiver form, the letter from the North Broward Hospital District and other evidence regarding his financial condition, and articulated on the record its reasons for denying G.S. forma pauperis status. G.S. was represented by counsel who could have objected to the form of the hearing and requested a confidential hearing as described in California Rules of Court, rule 3.58(b). By counsel’s failure to object to the type of hearing provided, G.S. has forfeited the right to assert he is entitled to an additional hearing under rule 3.58(b) of the California Rules of Court to review the same matters.

G.S. failed to post the undertaking within the time allowed and Code of Civil Procedure section 1030 mandated that the action be “dismissed as to the defendant in whose favor the order requiring the undertaking was made.” (Code Civ. Proc., § 1030, subd. (d).) Accordingly, the trial court did not err in dismissing G.S.’s action.

Motion for Reconsideration

G.S. next contends the court abused its discretion by failing to grant his motion for reconsideration. We disagree.

Code of Civil Procedure section 1008, subdivision (a) governs motions for reconsideration and specifies: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

G.S. filed a lengthy motion asking the court to reconsider its order denying his application to proceed in forma pauperis and its order imposing the undertaking. He also attached a declaration to his motion for reconsideration. Neither his motion nor declaration, however, recite “new or different facts, circumstances, or law” and reasons why they were not earlier produced, in order to merit reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based on new or different facts, circumstances or law].)

G.S.’s motion explained why he disagreed with the court’s orders and in essence requested that the orders be vacated and new and different orders entered. This was insufficient, and absent the required showing of “new or different facts, circumstances or law,” the court did not abuse its discretion in denying his request to reconsider its orders. (Code Civ. Proc., § 1008, subd. (e); Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 385, fn. 15 [the 1992 amendments “were specifically designed to make clear the Legislature’s intention that the procedures set forth in section 1008 be construed as jurisdictional and the exclusive means for modifying, amending or revoking prior interim orders”]; cf. Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148,1155-1156 [in contrast to a litigant, a court has inherent constitutional power to reevaluate its own interim rulings on its own motion].) In any case, neither his motion nor declaration contained additional facts or documents tending to show his indigence.

Code of Civil Procedure section 1008, subdivision (e) “specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Italics added.)

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs of appeal.

We concur: MALLANO P. J., WEISBERG, J.

Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

“(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....

“(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.”

“(a) Notice of hearing [¶] If the court determines that there is substantial evidentiary conflict concerning the applicant’s eligibility to proceed in forma pauperis, the clerk must immediately give the applicant at least 10 days’ written notice of a hearing.

“(b) Confidentiality of hearing [¶] To ensure confidentiality of the applicant’s financial information, the hearing must be held in private and the court must exclude all persons except authorized court personnel, the applicant, those present with the applicant’s consent, and any witness being examined.”


Summaries of

G.S. v. Sajahtera, Inc.

California Court of Appeals, Second District, First Division
Apr 29, 2009
No. B206769 (Cal. Ct. App. Apr. 29, 2009)
Case details for

G.S. v. Sajahtera, Inc.

Case Details

Full title:G.S., Plaintiff and Appellant, v. SAJAHTERA, INC. et al., Defendants and…

Court:California Court of Appeals, Second District, First Division

Date published: Apr 29, 2009

Citations

No. B206769 (Cal. Ct. App. Apr. 29, 2009)