Judge: Alison Mackenzie, Case: 24STCV00588, Date: 2024-04-11 Tentative Ruling
Case Number: 24STCV00588 Hearing Date: April 11, 2024 Dept: 55
NATURE OF PROCEEDINGS:
DEFENDANTS’ MOTION TO TRANSFER VENUE AND TO STAY; AND FOR PAYMENT BY
PLAINTIFF’S COUNSEL OF DEFENDANTS’ EXPENSES AND ATTORNEY’S FEES INCURRED IN
MAKING THIS MOTION
BACKGROUND
FIRAS NAJI (“Plaintiff”) filed a Complaint on 1/9/24 against
ADVANTAGE HOSPITALIST, INC. (“Defendant Advantage”) and JACK SHENOUDA, M.D. (“Defendant
Shenouda”) (collectively, “Defendants”), alleging that they, as employers,
discriminated against Plaintiff due to his disability.
Defendants move for an order transferring this case to
Ventura County, and requiring Plaintiff’s counsel to pay $5,385.00 to
Defendants. Plaintiff opposes the motion.
LEGAL STANDARD
A defendant seeking a change of venue has the burden
to show facts justifying transfer of venue. Mission Imports, Inc. v. Sup. Ct.
(1982) 31 Cal.3d 921, 929. The defendant must negate all possible bases for
proper venue. Buran Equip. Co. v. Sup. Ct. (1987) 190 Cal.App.3d 1662, 1666. A motion to change
venue must be supported by competent evidence. Tutor-Saliba-Perini Joint
Venture v. Sup. Ct. (1991) 233 Cal.App.3d 736, 744. A decision regarding
whether to transfer venue is reviewed for abuse of discretion. Silva v. Sup. Ct. (1981) 119 Cal.App.3d 301, 304. “Where the evidence on the
motion for a change of venue is conflicting…, the judgment will not be
disturbed.” Diepenbrock v. Auslen (1960) 185 Cal.App.2d 747, 751.
Even if venue is proper, “[t]he trial court in the
county where the action is filed may change venue to another county ‘[w]hen the
convenience of witnesses and the ends of justice would be promoted by the
change....’”" In re Hadley B. (2007) 148 Cal.App.4th 1041, 1049
(quoting Code Civ. Proc., §397).
Motions to change venue operate as a stay of
proceedings, pending a ruling. South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 655.
ANALYSIS
Judicial
Notice
Plaintiff requests that the Court take judicial notice
of Defendant Advantage’s Statement of Information filed with the California Secretary
of State, dated 9/5/2021. Defendants do not oppose the request. The Court grants
the request and takes judicial notice of the Statement of Information. filing
with the Secretary of State. Giles v. Horn (2002) 100 Cal. App. 4th
206, 228 (failure to object to requests for judicial notice constitutes a
waiver of the objection).
Evidentiary
Rulings
The Court sustains all of Plaintiff’s evidentiary
objections.
The Court disregards Defendants’ untimely reply
evidence. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (“The
general rule of motion practice … is that [“entirely”] new evidence is not
permitted with reply papers.”).
Venue-
Improper Court
Defendants contend that, pursuant to Code of Civil Procedure
Sections 396b(a), 395, 395.5, and Government Code Section 12965(c) (the FEHA
venue statute), venue is improper in Los Angeles County and that Ventura County
is the proper venue for this case.
According to Defendants, each of Plaintiff’s causes of
action arose in Ventura County, where he worked and was paid under a written agreement,
and where he needed accommodations for sciatica. Defendants state that Defendant
Advantage’s principal place of business was in Ventura County, notwithstanding
the judicially noticed Statement of Information, which states that Defendant
Advantage’s principal place of business was in Los Angeles County at the time
the Complaint was filed on 1/9/24.
As to actions joining corporations as defendants,
venue is proper at the corporation’s principal place of business, or where the
contract was made, or to be performed, or the obligation or liability arose. Code
Civ. Proc., §395.5. Importantly, a corporation’s designation of its principal place
of business in a corporation statement filed with the Secretary of State,
conclusively establishes the location for purposes of venue. Rosas v.
Superior Ct. (1994) 25 Cal.App.4th 671, 672. Here, Plaintiff filed the case
in Los Angeles County, which was Defendant Advantage’s principal place of
business as conclusively stated in the Secretary of State filing. Plaintiff
therefore has selected a proper venue in Los Angeles County. Defendant Advantage
filed a new Statement of Information, changing its principal place of business
to Ventura County, only after Plaintiff served his Complaint on Defendants. See
Dominguez Decl., Ex. B; Park Decl., Ex. 1. Such a change is immaterial to the
Court’s analysis that, at the time of filing the Complaint, Defendant Advantage
listed Los Angeles County as its principal place of business and therefore
venue is proper in Los Angeles County.
FEHA's venue provision allows plaintiffs to file
lawsuits “‘in any county in the state in which the unlawful practice is alleged
to have been committed, in the county in which the records relevant to the
practice are maintained and administered, or in the county in which the
aggrieved person would have worked ... but for the unlawful practice.’” Malloy
v. Sup. Ct. (2022) 83 Cal.App.5th 543, 546, 554-560 (quoting Gov. Code, §
12965, subd. (c)(3)). Moreover, employees can show proper venue in that county
where they have been working remotely. Ibid.
As for the FEHA statute, the Court finds that (1)
unlawful practices are alleged to have been committed in Los Angeles where
Plaintiff partly teleworked from an apartment, (2) records relevant to the
practice are maintained and administered from Plaintiff’s apartment in Los
Angeles, and Plaintiff would have worked more from his rented apartment in Los
Angeles but for the unlawful practice of not accommodating a disability. While
Defendants show that the written employment contract provided for Plaintiff to
work at Defendant Advantage’s location in Ventura County, it did not express
that location would be always exclusive. See Plaintiff’s Decl., Ex. A
(Independent Contractor Agreement), ¶ 4 (specifying times to work at locations,
and allowing substitutes at other times). Additionally, Plaintiff’s declaration
evidences that he worked part-time from his residence, which disputes
Defendants’ declarations. For all these reasons, the Court concludes that venue
is proper in Los Angeles County.
Venue-
Witness Inconvenience and Ends of Justice
Defendants alternatively argue that the Court should
exercise its discretion, pursuant to Code of Civil Procedure Section 397(c) (“Section
397”), to transfer the case to Ventura County to promote the convenience of
witnesses and the ends of justice. Defendants contend that all potential
witnesses, including Defendant Advantage’s physicians and personnel, reside in
Ventura County, and would be inconvenienced by travelling to Los Angeles.
A party seeking to transfer venue based on convenience
of witnesses and promoting the ends of justice under Section 397 has the burden
of establishing grounds for the transfer. Lieberman v. Superior Court
(1987) 194 Cal. App. 3d 396, 401. A motion to change venue based upon witness
convenience must be supported by competent proof. Tutor-Saliba-Perini Joint
Venture v. Sup. Ct. (1991) 233 Cal.App.3d 736, 744. In ruling on such a
motion, “[t]he trial court may rely not only on the direct facts set forth in
the affidavits, but also on any reasonable and relevant inference arising
therefrom.” Harden v. Skinner & Hammond (1955) 130 Cal.App.2d 750,
755.
Defendants have not met their burden under Section 397.
“[A] motion to change venue based upon the convenience of witnesses must name
the witnesses to be called, indicate the nature and relevance of their
testimony and explain why the current forum is inconvenient...” such that
courts can court determine the materiality of the evidence. Silva v. Sup. Ct.
(1981) 119 Cal.App.3d 301, 305. The declaration of Defendant Shenouda does not
contain any such specific information. He states that the potential witnesses
are other physicians but does not identify them by name. He vaguely states that the unnamed witnesses
would testify about Plaintiff’s performance, the number of patients he cared
for, and the number of services he provided. But Defendant Shenouda does not
explain how such information is material to Plaintiff’s FEHA disability claims.
Nor does he explain why it would be inconvenient for these unnamed potential
witnesses to appear in Los Angeles County. He also does not set forth facts from which the
Court could conclude that the ends of justice will be promoted by granting the
motion. Pearson v. Superior Court (1962) 199 Cal. App. 2d 691, 696.
Moreover, the Court only considers the convenience of
nonparty witnesses in a Section 397 motion. Wrin v. Ohlandt (1931) 213
Cal. 158, 160. The Court cannot consider the convenience of the parties or
counsel in determining a request to transfer venue under Section 397. Nor can
the Court consider the convenience of witnesses who are employees of a party,
except “when the employees are called as witnesses by the adverse party rather
than on behalf of their employer.” Lieberman 194 Cal.App.3d at 401-02.
Defendants’ reply asserts that the unspecified witnesses identified by
Defendant Shenouda are independent contractors, but Plaintiff’s declaration,
such as at paragraph 3, evidences that doctors are actually employees. Employer
classifications as independent contractors do not necessarily control employee
determinations. E.g., Varisco v. Gateway Science and Engineering, Inc.
(2008) 166 Cal.App.4th 1099, 1103, 1106. In addition, Defendants have not shown
that Plaintiff would call the unspecified witnesses who are physicians at
Defendant Advantage. Defendants’ decision to call their own employees as witnesses
is immaterial to the consideration of a request to transfer venue under Section
397. Lieberman 194 Cal.App.3d at 401-02.
Therefore, the motion to transfer venue under Section
397 is denied.
Attorneys’
Fees
Defendants request attorneys’ fees. Plaintiff counters
by stating that counsel acted in good faith in selecting Los Angeles County,
and so Defendants should pay attorneys’ fees.
Courts may order the losing parties to pay to
prevailing parties reasonable attorney fees and expenses, based upon discretion
including whether venue positions are made in good faith and are reasonable. Code
Civ. Proc., §396b. The attorney, not the client, is responsible for paying the
fees and costs, for losing, as to a motion to transfer venue. Ibid., at
subdiv. (b).
Because Defendants and Plaintiff submitted some
evidence in dispute for the Court to resolve, such as whether Plaintiff only
worked in Ventura County, the Court finds that the respective positions are at
least partly reasonable and made in good faith.
Therefore, the Court denies the respective requests
for attorneys’ fees.
Costs
If a venue change is ordered based upon the ground of
an improper county, plaintiffs are responsible for paying the costs and fees of
the transfer, subject to any other party's payment, or possible dismissal. Code
Civ. Proc., §399.
Here, because the motion is denied, no issue arises as
to paying transfer costs and fees.
CONCLUSION
The motion is denied. Defendants’ request to stay
discovery is moot and is also denied. Pursuant to CRC 3.1326, Defendants have
30 days to respond to the Complaint.