Brandy Garrett, et al. v. Ericka Sohlberg, M.D.

Case Number

23CV04046

Case Type

Hearing Date / Time

Wed, 04/16/2025 - 10:00

Nature of Proceedings

Defendant Ericka Sohlberg, M.D.’s Motion of Order Requiring Plaintiffs to File an Undertaking Pursuant to Code of Civil Procedure Section 1030

Tentative Ruling

For Plaintiffs Brandy Garrett and Craig Garret: John B. Richards, Mishelle Sotelo

For Defendant Ericka Sohlberg, M.D.: Mark B. Connely, Jennifer J. Henderson.  

                       

RULING

For the below reasons, the motion of Defendant for order requiring Plaintiffs to file an undertaking is granted in the reduced amount of $15,000.00. Defendant shall prepare a formal order for the court’s signature, serve Plaintiffs with the order, and file proof of service with the court. Plaintiffs shall file the undertaking within 30 days after the date of service of the court order.

Background

This action commenced on September 15, 2023, by the filing of the Judicial Council form complaint, for negligence and loss of consortium, by Plaintiffs Brandy Garrett (“Brandy”) and Craig Garret (“Craig”) against Defendant Ericka Sohlberg, M.D. (Note: Due to common surnames, Plaintiff’s will be referred to by their given names for clarity. No disrespect is intended.)

The complaint alleges that on September 29, 2022, at Sansum Clinic in Santa Barbara, Brandy hired Dr. Sohlberg to perform a mid-urethral bladder sling surgical procedure (the “surgery”). (Compl., ¶ GN-1.) Dr. Sohlberg failed to properly perform the surgery by, among other things, inserting one of the trocars too far above the pubic bone and then guiding the trocar in the wrong direction, which in turn caused one of the trocars to pierce through Brandy’s bowel, which in turn caused stool and bacteria to leak out into Brandy’s system, which caused infections including sepsis. (Ibid.) As a result, Brandy had to be hospitalized for further medical care and treatment, underwent further surgeries, had to use a colostomy bag for months, and caused Brandy to suffer from hypoglycemia that may result in her losing her driving privileges. (Ibid.)

On October 20, 2023, Dr. Sohlberg filed her answer to the complaint by stating a general denial and asserting 17 affirmative defenses.

Arguing that Plaintiffs live out of state, and that Dr. Sohlberg has a reasonable possibility of obtaining a judgment in her favor, Dr. Sohlberg moves, pursuant to Code of Civil Procedure section 1030, for an undertaking by Plaintiffs in the amount of $25,000.00.

Plaintiffs oppose the motion and request, in the event the court is inclined to order an undertaking, that the amount of the undertaking be reduced.

Analysis

“(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.

“(d) The Plaintiff shall file the undertaking not later than 30 days after service of the court’s order requiring it or within a greater time allowed by the court. If the Plaintiff fails to file the undertaking within the time allowed, the Plaintiff’s action or special proceeding shall be dismissed as to the Defendant in whose favor the order requiring the undertaking was made.

“(e) If the Defendant’s motion for an order requiring an undertaking is filed not later than 30 days after service of summons on the Defendant, further proceedings may be stayed in the discretion of the court upon application to the court by the Defendant by noticed motion for the stay until 10 days after the motion for the undertaking is denied or, if granted, until 10 days after the required undertaking has been filed and the Defendant has been served with a copy of the undertaking. The hearing on the application for the stay shall be held not later than 60 days after service of the summons. If the Defendant files a motion for an order requiring an undertaking, which is granted but the Defendant objects to the undertaking, the court may in its discretion stay the proceedings not longer than 10 days after a sufficient undertaking has been filed and the Defendant has been served with a copy of the undertaking.

“(f) The determinations of the court under this section have no effect on the determination of any issues on the merits of the action or special proceeding and may not be given in evidence nor referred to in the trial of the action or proceeding.

“(g) An order granting or denying a motion for an undertaking under this section is not appealable.” (Code Civ. Proc., § 1030.)

“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.” ’ ” [Citations.] 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, 332.)

There is no dispute that Plaintiffs live out of state. While their responses to interrogatories indicate that Plaintiffs were residing in Montana, by way of Brandy’s declaration in opposition to the motion, she declares that she and Craig now live in Wyoming. Therefore, the first element required for an undertaking has been met.

In support of the argument that Dr. Sohlberg has a reasonable possibility of obtaining a judgment in her favor, she submits the declaration of Anne Schuckman, M.D. Dr. Schuckman is a board-certified urologist who declares that in her professional opinion, “to a reasonable degree of medical probability, Dr. Sohlberg met the standard of care as a urology physician and surgeon in her care and treatment of the Plaintiff, Brandy Garrett.” (Schuckman Decl., ¶ 4.)

Plaintiffs provide no evidence to refute Dr. Schuckman’s opinion.

The court finds that Dr. Sohlberg has a reasonable possibility of obtaining a judgment in her favor. This in no way implies that Dr. Sohlberg will prevail, or even that she has a reasonable probability of prevailing. It simply means that Dr. Sohlberg has satisfied the second element required for an undertaking.

As noted above, Dr. Sohlberg seeks an undertaking in the amount of $25,000.00. In support of the request, Dr. Sohlberg’s counsel declares the following:

“To date, Plaintiffs and one treating physician’s depositions have taken place. Expert disclosure has not yet occurred and expert depositions will be conducted. The cost of the transcript for a deposition averages approximately $1,250. Further, motions in limine will be required in preparation for trial, among other trial preparation fees.” (Henderson Decl., ¶ 6.)

“My office served Code of Civil Procedure, section 998 Offer upon Plaintiffs on or around January 15, 2025. Accordingly, expert fees would be recoverable.” (Henderson Decl., ¶ 7.)

“To date, costs incurred in Dr. Sohlberg’s defense total $12,423.37.” (Henderson Decl., ¶ 8.)

“It is thus anticipated that should this matter proceed to trial, additional expenses will be incurred. This would include fees for all expert deposition fees, jury costs and numerous other costs to be incurred in the defense of this case. On this basis, a Defendant would have the right to request an undertaking of more than $30,000.00. However, Defendant believes it is reasonable to post an undertaking of hard costs in the amount of $25,000.00 at the present time.” (Henderson Decl., ¶ 9.)

“Even if the Defendant establishes the grounds for an undertaking, the trial court may waive the requirement if the Plaintiff establishes indigency. Section 995.240, which “ ‘codifie[d] the common law authority of the courts’ ” (Cal. Law Revision Com. com., 18 West’s Ann.Code Civ. Proc. (2009 supp.) foll. § 995.240, p. 169), 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.’ ” [Citation.]” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429.)

“[I]t is not just low-income Plaintiffs who may be entitled to relief from the requirement of posting an undertaking, but also middle-income Plaintiffs: “ ‘[C]ases . . . also support the proposition the [C]onstitution requires courts to scale the amount of the required security to the out-of-state Plaintiffs’ ability to pay. Thus, not only must the courts exempt poor people entirely, but they may have to reduce the security bond required for middle income litigants, as well. If the bond is set high enough to fully protect the in-state Defendant, it may be higher than middle income out-of-state Plaintiffs can afford - and thus deprive them of their day in court. This, most courts have concluded, is an unconstitutional construction of these statutes and requires the judge to lower the security required to a manageable level.’ ” [Citation.]” (Alshafie v. Lallande, supra, 171 Cal.App.4th at p. 436.)

In opposition to the motion, and alternatively requesting a reduction of the amount of the undertaking, Brandy submits a declaration wherein she declares:

“I have been unemployed since about mid-to-late 2021.” (Brandy Decl., ¶ 3.)

“On or around mid-November 2023, my husband and I moved to Montana, partly to take care of my mother.” (Brandy Decl., ¶ 4.)

“My husband retired in 2023.” (Brandy Decl., ¶ 5.)

“On or around October 10, 2024, I was approved for disability benefits by the Social Security Administration.” (Brandy Decl., ¶ 7 & Exh. A.)

“Beginning February 2025, the full monthly Social Security benefit amount for me, before any deductions, is $1,339.50.” (Brandy Decl., ¶ 8 & Exh. B.)

“It would cause financial hardship to secure a $25,000.00 undertaking.” (Brandy Decl., ¶ 9.)

While Plaintiffs have not provided the court with sufficient evidence that they are indigent, they have demonstrated that it would be a financial hardship for them to post an undertaking of $25,000.00. This, combined with Dr. Sohlberg’s inclusion of several items of costs (such as expert fees, trial preparation, and motions in limine) that are, at this point, speculative, incline the court to reduce the amount of the undertaking.

Dr. Sohlberg argues that she has already expended $12,423.37 in costs. In order to balance Dr. Sohlberg’s interests of potentially recovering some of her litigation costs, should she prevail in this matter, with the Plaintiffs’ ability to afford the posting of the undertaking, the court will order an undertaking in the reduced amount of $15,000.00.