BRAULIO SANTIAGUIN v. JADEN BRADLEY CHEIKHA, et. al.

days within which to post the undertaking, or the action is subject to mandatory dismissal. (Code

Civ. Proc., § 1030, subd. (c), (d); see Shannon v. Sims Service Ctr., Inc., supra, 164 Cal.App.3d

at p. 915.)

Where a nonresident plaintiff establishes that he or she is indigent, the court has

discretion to waive the posting of security. “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 v. Estate of Getemyan, supra, 90 Cal.App.4th at 1433.)

In addition, the court has discretion to waive the bond requirement for others whose

individual situation justifies a waiver under the circumstances of the particular case. (Alshafie v.

Lallande (2009) 171 Cal.App.4th 421, 436.)

3 The Court finds that the moving party has complied with its meet-and-confer obligation.

VIII. EVIDENTIARY OBJECTIONS

A. Plaintiff’s Objections

Plaintiff does not submit evidentiary objections under separate cover. However, in

section III(B)(3), in pages 13 and 14 of the opposition brief, Plaintiff correctly asserts that

statements made by defense attorney Milton V. Fajardo are inadmissible. Specifically,

paragraphs 4, 7-14, and 18 each testify to matters directly relating to the accident without proper

foundation or personal knowledge. Although the objections are not under separate cover, the

Court exercises discretion to exclude these portions of Fajardo’s declaration on these grounds.

Additionally, paragraph 17 provides that Defendants intend to present favorable

testimony at trial from the two passengers who were in Defendants’ vehicle at the time of the

accident which support their version of events. This paragraph is excluded as inadmissible

hearsay.

B. Defendants’ Objections

Defendants object to portions of the declaration of Plaintiff’s attorney Edward G.

Avakian, nearly all of which are well taken.

First, portions of Avakian’s declaration state that Defendants settled the subject litigation

brought by passengers in Defendants’ vehicle against Defendants. Plaintiff argues Defendants

are judicially estopped from denying liability in light of those settlements.

As an evidentiary matter the material is inadmissible under Evidence Code section 1152

for the purpose of proving liability—the only purpose for which it may be considered in

connection with this motion. Therefore, the Court SUSTAINS objection nos. 1 and 2.

Attorney Avakian’s declaration then proceeds to make numerous legal arguments

regarding counsel’s view of various cases and other materials. The Court SUSTAINS objection

nos. 3-14 as constituting improper opinion testimony.

Objection no. 15 to Avakian’s declaration is OVERRULED.

IX. WHY THE COURT IS DENYING THE MOTION

Plaintiff concedes he is a Nevada resident. (Avakian Decl., ¶ 4.)

In support of the motion, Defendants submit Defendant Jaden’s verified responses to

form interrogatories (Exh. A); photographs showing Plaintiff’s vehicle damage produced in

discovery (Exh. C); photographs of Defendants’ vehicle damage from the accident (Exh. D); and

portions of Plaintiff’s deposition transcript (Exh. E).

The only citations to Jaden’s verified responses appear incorrect. Defendant cites Exhibit

A at 38:25-39:3 and 42:21-44:4 (see Motion, footnotes 3, 6, 8-13), but Exhibit A is only 30

pages long so these citations do not seem to appear in Exhibit A.

The photographs of Defendants’ vehicle show the damage was on the right front area of

the vehicle. (Defendants’ Exh. D.) The photographs of Plaintiff’s vehicle show the most damage

in the left front area of the vehicle, although these photographs show generally more extensive

damage extending to other areas. (Defendants’ Exh. C.)

Plaintiff testified he was traveling in the middle lane before the accident. It was raining

before the accident, but Plaintiff does not recall how long it had been raining. (Santiaguin Depo,

p. 75 [Defendants’ Exh. E].) “What I remember is that it would start raining hard, and then it

would calm down, and then it would rain hard, and then it would calm down.” (Id., 76:5-7.) At

the time of the accident Plaintiff was driving between 70 and 75 miles per hour. However, when

it rained harder Plaintiff would lower his speed. (Id., p. 82.)

Defendants argue the evidence shows Jaden was driving only 40-45 miles per hour to

avoid hydroplaning in the rain. Plaintiff was driving 70-75 miles per hour and was initially

behind Jaden, but quickly accelerated past Jaden. Plaintiff’s vehicle hydroplaned as Plaintiff

attempted to merge in front of Defendant, struck the center divider, spun, and ultimately collided

head-on with Defendant’s vehicle. However, this assertion is mostly supported by reference to

counsel’s declaration which is largely inadmissible as attorney Fajardo lacks personal knowledge

of these facts.

In opposition, Plaintiff presents over 300 pages of evidence attached to attorney

Avakian’s declaration. Plaintiff provides his own complete transcript (Exh. 1); State Farm

Insurance Companies Estimate of Record (Exh. 2); and Defendants’ written discovery responses

(Exhs. 3-5).

Plaintiff argues his testimony cited in Defendants’ papers is taken out of context. Via

citation to the above-referenced evidence, Plaintiff contends (1) the physical evidence is

consistent with a side impact collision, not a head-on hydroplane event; (2) both vehicles were

traveling to Las Vegas in the same direction, rendering a head-on collision impossible;

(3) Plaintiff was struck without warning; (4) Defendants’ vehicle was behind Plaintiff at the last

moment Plaintiff observed before impact; (5) Plaintiff did not hydroplane or skid; (6) Plaintiff

told his supervisor he had been hit from behind; (7) Defendant Jaden apologized to Plaintiff at

the scene; and (8) Defendants’ citation to Plaintiff’s testimony concerning speed is misleading.

To some extent, Plaintiffs’ argument is couched in such a way as to imply that

Defendants must prove conclusively they will prevail at trial in order to impose the bond

requirement. But Defendants need only demonstrate “there is a reasonable possibility” they will

obtain judgment. (Code Civ. Proc., § 1030, subd. (b).)

But the motion fails in any event. Defendants fail to provide competent evidence

supporting their version of events. The only admissible evidence properly cited in Defendants’

opening brief provides Plaintiff was driving between 70 and 75 miles an hour in the rain at the

time of the accident. Even accepting this as true, Defendants do not provide clear evidence

showing Jaden was not at fault. Defendants may provide stronger evidence at trial, but the

showing here is supported primarily by the inadmissible portions of counsel’s declaration.

X. CONCLUSION

5. Although Plaintiff did not submit evidentiary objections under separate cover,

Section III(B)(3) of the opposition brief contains evidentiary objections to the Fajardo

declaration and are ruled upon as follows:

a. Objections to paragraphs 4, 7-14, and 18 are SUSTAINED due to lack of

personal knowledge and proper foundation;

b. Objection to paragraph 17 is SUSTAINED on hearsay grounds; and

c. Remaining objections are OVERRULED.

6. As for Defendants’ objections to the Avakian declaration:

a. Objection nos. 1 and 2 are SUSTAINED under Evidence Code section

1152;

b. Objection nos. 3-14 are SUSTAINED as improper opinion testimony; and

c. Objection no. 15 is OVERRULED.

7. Defendants’ motion to require an undertaking is DENIED.

IT IS SO ORDERED.

Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court