SUAREZ VS MARRIOTT INTERNATIONAL, INC.

This Motion is made on the grounds that Plaintiff permanently resides in Winter Haven, Florida. Furthermore, this Motion is made on the grounds that there is a “reasonable possibility” that Defendant will obtain judgment in this action. Specifically, the evidence establishes that any alleged dangerous condition, which is the basis of Plaintiff’s Complaint, was open and obvious and/or a trivial defect. Defendant’s Motion satisfies both requirements under CCP § 1030. Accordingly, Defendant respectfully requests an order that Plaintiff post an undertaking to secure Defendant’s costs of suit In Opposition, Plaintiff contends that: (1) Defendant has failed to meet its burden of establishing a reasonable probability of obtaining a judgment in this action; (2) the court should exercise its discretion by waiving or reducing the undertaking based on financial ability; (3) requiring plaintiff to post security is unconstitutional.

In Reply, Defendant contends that: (1) Plaintiff misstates defendant’s burden under code of CCP § 1030; (2) Defendant has shown a reasonable possibility of obtaining judgment; (3) Plaintiff’s financial hardship argument does not require denial of the motion, in fact, it supports the basis for Defendant’s motion; (4) Defendant’s anticipated costs are reasonable and properly included; (5) CCP § 1030 is constitutional and Plaintiff’s constitutional arguments should be rejected.

Undertaking for Out of State Plaintiff CCP § 1030(a) provides that an out-of-state plaintiff may be ordered to file an undertaking to secure an award of costs and attorney fees authorized by statute or contract that may be awarded in the action. “The motion shall be made on the grounds that the plaintiff resides out of the state . . . and that there is a reasonable possibility that the moving defendant will obtain judgment in the action . . . .” CCP § 1030(b). “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.”

CCP § 1030(c). The purpose of the statute is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction. The statute therefore acts to prevent out-of-state residents from filing frivolous lawsuits against California residents.” Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331 (citations and internal quotation marks omitted). Here, Defendant asks for an undertaking to secure an award of costs which may be awarded in this action in the amount of $56,283.10, or such amount as the Court deems proper to secure payment of Defendant’s costs of suit, pursuant to CCP § 1030.

Defendant avers that Defendants have incurred $666.10 in costs, and anticipates it will incur $55,617 in costs in this action prior to conclusion of trial. (Declaration of Matthew C. Seymour, ¶¶ 11-14.)

Plaintiff resides out of state It is undisputed that Plaintiff lives out of state, in Florida. Therefore the first element of CCP § 1030 is satisfied. Defendant has Established a Reasonable Possibility that Defendant will Prevail in this action CCP § 1030 imposes on Defendants the burden of showing only a “reasonable possibility” that they may obtain a judgment. In other words, Defendants are not required to show that there is no possibility that Plaintiff will win, but only that it is reasonably possible that Defendants may win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

In support of this motion, Defendant provides evidence showing it has a reasonable possibility of establishing that the alleged dangerous condition was open and obvious. The photographs produced by Plaintiff through discovery demonstrate that the dirt where Plaintiff allegedly tripped and fell was not part of the designated concrete walkway. (Seymour Decl., ¶ 7, Exh. G.) The photographs produced by Plaintiff also establish that the dirt patch area where Plaintiff allegedly tripped and fell was not obstructed or in a shaded area. (Id.)

Plaintiff’s verified discovery responses confirm that the alleged incident occurred in daylight. (Seymour Decl., ¶ 5, Exh. C-D.) Plaintiff’s responses also confirm that she was “looking ahead” and not at the ground at the time of the alleged incident. (Seymour Decl., ¶ 6, Exh. E-F.) In the Opposition, Plaintiff contends that is was “reasonable” for her to take a direct route because she was carrying multiple items. As noted by Defendant, this argument proves its point. Plaintiff’s decision to take a shorter route while carrying multiple items is evidence from which a trier of fact may conclude that Plaintiff’s own conduct, not any actionable dangerous condition, caused the fall.

A plaintiff cannot convert a visible transition between concrete and landscaping into premises liability merely because she chose the most direct route while burdened with items. Accordingly, Defendant has established, through this evidence, that there is a reasonable possibility that Defendant will obtain judgment in the action based on the alleged dangerous condition being open and obvious. As such, Defendant has satisfied both requirements under CCP § 1030 and has met its burden on this motion.

Trivial Defect Defendant establishes that, assuming, for the sake of analysis, that the walkway was defective, there is a reasonable possibility that Defendant will obtain judgment in the action based on the alleged defect being trivial. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor, trivial defects. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27.) The “trivial defect doctrine” permits a court to determine “triviality” as a matter of law rather than always submitting the issue to a jury and provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property. (Id.)

Walkways with a nearly one-inch height deviation, or lip, between segments have been found to pose a trivial risk as a matter of law. (Ness v. City of San Diego (1977) 144 Cal.App.2d 668 [height deviation of 7/8 inch was a trivial defect as a matter of law]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719 [height deviation of about 3⁄4 inch was a trivial defect as a matter of law]; Barrett v. City of Claremont (1953) 41 Cal.2d 70 [a ridge of 1⁄2 inch was trivial as a matter of law].) Defendant provides evidence showing it has a reasonable possibility of establishing that the alleged dangerous condition was a trivial defect: As seen in Plaintiff’s produced photographs of the walkway, the dirt deviation appears to be trivial (less than one inch). (Seymour Decl., ¶ 7, Exh.

G.) Accordingly, even if the Court determines there is no reasonable possibility that the alleged dangerous condition was open and obvious, Defendant still satisfied both requirements under Code of Civil Procedure, section 1030 based on the alleged defect being trivial. Defendant’s anticipated costs and attorney’s fees A prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (CCP § 1032(b).) Code of Civil Procedure, section 1030 requires a supporting declaration itemizing the costs and fees incurred or expected to be incurred: “The motion shall be accompanied by an affidavit in support of the grounds for the motion [and] 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.” (CCP § 1030(b).)

CCP § 1033.5 identifies the following items as recoverable costs: (1) Filing, Motion, and Jury fees; (2) Jury food and lodging; (3) Taking, videotaping, and transcribing depositions; (4) Service of Process; (5) Expenses of attachment including keeper's fees; (6) Premiums on surety bonds; (7) Ordinary witness fees; (8) Fees of expert witnesses ordered by the court; (9) Court Transcripts; and (10) Attorney fees, when authorized by contract, statute, or law; (12) Model and blow ups of exhibits and photocopies of exhibits; and (13) Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or in appeal.

Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571 holds that a party can recover costs for subpoenaed medical records. The Naser Court observed: “We agree that obtaining business records through a deposition subpoena is a ‘deposition’ within the plain meaning of the Civil Discovery Act. Naser's medical records were clearly relevant to her personal injury claim, and Lakeridge was entitled to depose the custodian of records for each of Naser's health care providers and potential experts. . ..

It would be anomalous to deny costs where Lakeridge utilized a more economical procedure.” (Id., at p. 578.) Here, the Seymour Decl. sets 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.” (CCP. § 1030(b).) Defendant has already incurred costs of suit in excess of $666.10. Seymour Decl., ¶11 provides a breakdown.) Defendant’s conservative estimate of future, anticipated costs of suit in this action prior to the conclusion of trial is $55,617. (Seymour Decl., ¶¶12-14.)

On page 15, line 1 through page 16, line 15, Defendant provides a comprehensive chart. This information is also in the Seymour Decl.

1. Expert Fees - $36,591 In the Opposition, Plaintiff contends that expert fees must be excluded because Defendant has not yet served a CCP § 998 offer. This is correct. Defendant indicates expert costs through trial in the amount of $36,591. Expert fees are expressly not allowable as recoverable costs, unless ordered by the court. (CCP § 1033.5(b)(1).) Defendant contends it “will pursue expert costs pursuant to Code of Civil Procedures section 998.” (Motion, p. 13:15-16.) However, to date, Defendant has not served a 998 offer on Plaintiff. (See Cherkezian Decl., ¶ 3.)

Without an actual 998 offer, it is impossible for Plaintiff or this court to determine whether any 998 offer will be reasonable, or whether Plaintiff will reject or fail to accept such an offer. the cost shifting provision of the CCP only applies when a plaintiff rejects or fails to timely accept a qualifying defense 998 offer and then fails to obtain a more favorable judgment or award. (CCP § 998, subd. (c)(1).) “Under those circumstances, the plaintiff shall not recover ... post offer costs, shall pay the defendant’s costs from the time of the offer, and may be required to pay some post offer expert witness costs.” (Madrigal v.

Hyundai Motor America (2025) 17 Cal.5th 592, 603.)

Accordingly, Defendant cannot include these speculative costs because the condition precedent to obtaining expert witness costs has not yet occurred, i.e., service of a 998 offer which Plaintiff rejected or failed to accept. The $36,591 must be excluded from the estimated future costs as premature. DENIED

2. Deposition Costs - $7,800 CCP § 1033.5 provides for recovery of deposition costs. (CCP § (a)(3)(A). Therefore, they are recoverable and can contribute to a CCP § 1030 motion. Defendant’s chart states that depositions include (See motion, page 15-16.) • Plaintiff Ivaluz Suarez • Custodian of records for each of Plaintiff’s 6 identified medical providers.

• Witnesses identified by Plaintiff in discovery: (1) Orberto Orta; (2) Eddie Rios; (3) Amanda Orta; and (4) Alberto Orta • Two expert depositions Note that while Defendant provides a “conservative” estimate of $600 per hour. Yet in the expert costs section, the chart indicates $2,500 per hour for deposition.

In his declaration, Matthew Seymour declares that he currently anticipates Defendant will notice at least 13 depositions in this action. Assuming court reporter services for each of these depositions cost $600, Defendant would incur another $7,800.00 in costs. GRANTED

3. Domestication of 6 Subpoenas - $5,526 Attorney Seymour declares that “[s]ince Plaintiff’s counsel refused to stipulate to the authenticity of Plaintiff’s medical records, on January 12, 2026, my office received a quote to domesticate California subpoenas into Florida. The cost per subpoena was estimated at $921.00 plus court/witness fees. If no California commission is required by the foreign jurisdiction, the cost would go down to $790.00 for each subpoena. As such, the cost for the six (6) out-of-state subpoenas could be $5,526.00.

Attached as Exhibit “I” is a true and correct copy of First Legal’s e-mail providing a quote to domesticate the out-of-state subpoenas.” In the Opposition, Plaintiff provides a from one vendor offering a flat fee. That evidence does not establish what Defendant will actually incur. It does not account for the specific subpoenas Defendant may serve, the number of custodians, whether records require special handling, whether deposition subpoenas or business record subpoenas will be used, whether witness fees or additional service attempts will be necessary, whether commissions or court filings will be required, or whether additional attorney time and vendor coordination will be incurred.

As noted by Defendant, § 1030 does not require Defendant to select Plaintiff’s preferred vendor or the lowest advertised online price. Defendant’s estimate is supported by counsel’s declaration and is reasonable given the need to obtain out-of-state discovery from Florida witnesses and providers. Plaintiff’s disagreement with the amount is not a basis to deny security. GRANTED

4. Plaintiff’s financial hardship Plaintiff asks the Court to waive the undertaking based on alleged financial hardship. Defendant does not dispute that the Court may consider a proper showing under CCP § 995.240. However, Plaintiff’s hardship argument does not defeat the statutory grounds for Defendant’s Motion, and, in fact, supports the basis for Defendant’s Motion.

Where the plaintiff establishes indigency, a trial court has discretion to waive the posting of security. (Baltayan v. Estate of Getemayan (2001) 90 Cal.App.4th 1427, 1433.) If the plaintiff has not chosen to seek in forma pauperis status, there is no rigid standard for the showing of indigency. (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 434.)

Plaintiff bears the burden of making a sufficient showing that she is unable to furnish the undertaking. (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 434.) General claims of hardship are not enough. Plaintiff’s declaration references income, expenses, family obligations, and lack of savings, but Plaintiff has not established that she attempted to obtain a bond, that she cannot obtain assistance from litigation funding, that counsel cannot advance the bond or costs, or that no lesser undertaking is feasible. In her declaration, Plaintiff provides a comprehensive look at her financial picture, including some documentation of income, an itemization of household and business expenses, and bank account statements.

Here, it seems Plaintiff has established her financial situation, but has not established that she attempted to obtain a bond, that she cannot obtain assistance from litigation funding, that counsel cannot advance the bond or costs, or that no lesser undertaking is feasible.

Constitutional Arguments (a) Dormant Commerce Clause. Plaintiff contends that CCP § 1030 violates the Dormant Commerce Clause, but §1030 does not regulate commerce. It regulates litigation procedure in California courts. The statute applies to out-of-state plaintiffs because of the practical difficulty of enforcing a California cost judgment outside California, not because of economic protectionism or discrimination in commercial markets. (b) Due Process. § 1030 provides notice, a hearing, a burden on the moving defendant, judicial discretion regarding the amount, and the ability to seek relief based on inability to furnish an undertaking.

These procedures satisfy due process. Plaintiff’s argument that the statute “locks the courtroom doors” ignores the statutory safeguards and the Court’s discretion under Section 995.240. Due process does not prohibit reasonable procedural requirements designed to protect a prevailing defendant’s ability to recover costs. (c) Equal Protection. Out-of-state plaintiffs are not similarly situated to in-state plaintiffs for purposes of cost enforcement. A California defendant who obtains a cost judgment against an out-of-state plaintiff may face additional burdens in collecting that judgment. § 1030 rationally addresses that concern by requiring security only where the plaintiff resides out of state and the defendant shows a reasonable possibility of judgment.