NATURE OF PROCEEDINGS: Hearing on Defendant’s Motion for Change of Venue

 

Defendant’s Motion for Change of Venue is denied.

 

BACKGROUND

Plaintiff Ariel Long (Plaintiff) filed this Fair Employment and Housing Act (FEHA) action against Kaneka Medical America, LLC (“Kaneka” or “Defendant”), Kiminori Toda, and Dennis Mitchell (collectively “Defendants”). Plaintiff alleges her employer, Kaneka, discriminated against women. When Plaintiff complained, Kaneka’s management retaliated by stripping her of her job duties, demoting her, and ultimately terminating her employment in June 2024.

Defendant filed a Motion for Change of Venue. Plaintiff filed an Opposition.

 

LEGAL STANDARD

“Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.” Code Civ. Proc., § 396b, subd. (a).

California’s general venue provision, Code of Civil Procedure, Section 395(a), states that “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” The phrase “except as otherwise provided by law” that leads off Section 395(a) makes the general venue provision subject to statutory exceptions. FEHA is such an exception, for it has its own “special” venue provision. Brown v. Superior Court (1984) 37 Cal.3d 477, 487 (Brown). FEHA’s special venue provision “controls in cases in which FEHA claims are joined with non-FEHA claims arising from the same facts.” Ibid.

FEHA’s special venue provision, Government Code Section 12965(c)(3), sets forth the eligible counties within California in which a FEHA action seeking redress for unlawful employment practices can be brought. “An action may be brought [1] in any county in the state in which the unlawful practice is alleged to have been committed, [2] in the county in which the records relevant to the practice are maintained and administered, or [3] in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, [4] but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.” Gov. Code, § 12965.

There is a presumption that the plaintiff’s selection of the venue is proper, and the defendant bears the burden of demonstrating that it is not. Fontaine v. Superior Court (2009) 175 Cal.App.4^th 830, 836.

ANALYSIS

Defendant seeks to transfer venue to Santa Barbara County, as the only proper venue under the FEHA. Plaintiff argues that Los Angeles County is an appropriate venue because it is the county where the unlawful conduct occurred, and it is the county where a defendant resides.

I. Where Unlawful Employment Practices Occurred

Defendant argues that Los Angeles County is not a proper venue because all alleged unlawful employment practices occurred in Santa Barbara County.

“An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed….” Cal Gov Code § 12965. An adverse evaluation of employment status, such as termination of employment, occurs where the employer makes the decision, not where the employee learns of the decision. See Malloy v. Superior Court (2022) 83 Cal.App.5th 543, 554 (Malloy) (“Evaluations of Malloy’s employment status, including the decision to fire her when she refused to immediately return to in-person work in mid-April 2021, were undoubtedly made in Orange County… the fact Malloy learned of the decision to terminate her employment via e-mail or telephone call, and not in person at the companies’ offices, does not mean the unlawful practices were committed wherever Malloy was at the time she received the information.”)

However, unlike determinations of employment status, which may be independently wrongful, hostile work environment harassment is unlawful based on its effect on the employee. See Gov. Code, § 12923 (“[H]arassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace…”). Therefore, hostile work environment harassment occurs where the employee experiences the harassment, not where the employer engages in it. Cf. Malloy, supra, 83 Cal.App.5th at p. 555 (finding “real parties in interest interfered with Malloy’s [pregnancy] leave rights in Los Angeles County, where they were being exercised, not in Orange County.”).

Here, the Plaintiff argues that venue is proper in Los Angeles County because Mitchell resided there (and presumably works there), and therefore, his wrongful conduct was committed in the same county. Opp. at p. 4:4-7. Plaintiff alleges that Mitchell engaged in discriminatory, retaliatory, and harassing behavior towards her, including threatening her with disciplinary action, ostracizing her, degrading her, yelling at her, and berating her. Compl. ¶ 20. These alleged acts of harassment occurred, not where Defendant engaged in them, but where Plaintiff experienced them.

Defendant provides the declaration of Rhodesia Lindsey, Kaneka’s Senior Director of Human Resources, which states, “Defendant hired Plaintiff as a remote employee in Santa Barbara, California. Plaintiff’s offer letter indicated that Plaintiff resided at 3920 Harrold Ave., Santa Barbara, California 93110 and that primary work location will be a home office in CA.” Lindsey Decl. ¶ 8. Additionally, in his declaration, Mitchell testifies, “My conversations and/or interactions with Plaintiff occurred remotely over Teams, including management/business development meetings, cross-functional team collaborations, and/or work discussions of which Plaintiff was a part of. I never met or interacted with Plaintiff in person in Los Angels [sic] County.” Mitchell Decl. ¶ 3.

In her declaration, Plaintiff states that she “resided in Santa Barbara, but I also regularly worked in Los Angeles to perform my job duties for Kaneka and at the direction of Kaneka.” Long Decl. ¶ 2. She lists four addresses in Los Angeles County, where she had in-person work meetings. Ibid. However, she provides no dates for when these work meetings occurred, nor does she specify that the instances of harassment she alleges occurred during these meetings.

The Court finds that Defendant has presented adequate evidence to rebut the presumption that Plaintiff filed in the correct venue. Plaintiff’s evidence is not sufficient to show that Mitchell’s alleged acts of harassment occurred while Plaintiff was in Los Angeles County.

II. Defendant’s Residence

Defendant does not dispute that Mitchell resides in Los Angeles, but argues that this fact is irrelevant.

The parties disagree on the interpretation of the final clause of the FEHA special venue provision, which provides “but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.” Gov. Code, § 12965 subd. (c)(3). Plaintiff contends that this language means that the county of defendant’s residence or principal office is always a proper venue. Defendant argues that the county of the defendant’s principal office or residence is only a proper county if there is no other proper county under the FEHA special venue provision. For the reasons explained below, the Court agrees with Plaintiff’s interpretation.

In Brown, the plaintiffs filed a complaint against defendants in Alameda County, where the alleged discrimination occurred. Brown, supra, 37 Cal.3d at p. 481. Defendants moved for a change of venue to Sacramento County, arguing that the three individual defendants resided there, the corporate defendants’ principal places of business were located there, and none of the defendants resided in Alameda County. Ibid. The trial court granted the motion for change of venue. However, the California Supreme Court issued a writ of mandate directing the respondent court to vacate its order changing venue to Sacramento County. Id. at p. 489.

The Brown majority addressed only the question of “whether the special provisions of the FEHA or the general provisions of section 395 control if both FEHA and non-FEHA claims arising from the same facts are alleged in the same complaint.” Id. at p. 482. The Court noted, “[i]t is undisputed that if petitioners had alleged only FEHA violations, the FEHA venue statute would govern. In that instance, venue would be in Alameda County -- the county in which the discriminatory practices were allegedly committed.” Ibid.

However, in a concurring opinion, Justice Kaus noted that “[t]hroughout the proceedings below [defendants] conceded that Alameda was a proper venue for petitioners’ FEHA causes of action. Not until their opposition to the petition for hearing in this court did they note, quite casually, that the relevant portion of section 12965, subdivision (b) ends as follows: ‘. . . but if the defendant is not found within any such county, such an action may be brought within the county of defendant’s residence or principal office.’” Brown, supra, 37 Cal. 3d at p. 490 (conc. opn. of Kaus, J.). In analyzing this statutory language, Justice Kaus remarked, “[s]ince the superior courts process is statewide, it might be difficult to construe this somewhat quaint language literally. Certainly it would not be stretching it to interpret it to refer to an individual defendant’s residence or a corporate defendant’s place of business.” Ibid (citing Code Civ. Proc., § 71). Justice Kaus concludes, “[n]evertheless, whatever merit there may be to this point, it manifestly comes too late. I therefore join the court’s opinion.” Ibid.

Based on Justice Kaus’s concurrence, it appears that the defendants in Brown argued, for the first time on appeal, that the FEHA statute only authorizes venue where defendants are “found.” That is, the defendants argued that, because they did not have their residences or principal places of business in Alameda County, it was not a proper venue, even though it was undisputedly the place where the alleged unlawful employment practice occurred. Justice Kause concedes that the defendants’ suggested interpretation of the word “found,” “to refer to an individual defendant’s residence or a corporate defendant’s place of business,” is plausible. However, he declines to consider whether the first three venue criteria require a defendant to be found in those counties, because the defendants did not raise the issue earlier.

In Ford Motor Credit Co. v. Superior Court (1996) 50 Cal.App.4th 306 (Ford), the court addressed the propriety of filing a FEHA case in Los Angeles County, where the plaintiffs resided. As with Brown, the Ford decision does not address circumstances where a FEHA defendant is sued in its principal place of business and does not hold that a FEHA plaintiff cannot sue a FEHA defendant there. None of the alleged acts of discrimination, harassment, or retaliation took place in Los Angeles County. Instead, all such acts “occurred in Sacramento County … where plaintiffs were employed at Ford’s Sacramento office.” Id. at p. 308. In those circumstances, the court held that the trial court erred in denying Ford’s motion to change venue, as the venue selected was not any of the counties specified in section 12965(b). Id. at pp. 309-310. In describing the FEHA special venue provision, the Ford court stated “[i]f the defendant is not ‘found’ in any of the counties described in the three foregoing criteria, then section 12965, subdivision (b) provides two other options [defendant’s residence or principal place of business]. If none of the three enumerated criteria are satisfied, then venue rests in the county of the defendant’s principal office or residence.” Id. at p.310

Defendant interprets this quoted portion to mean that a FEHA plaintiff may bring an action in the residence or principal office of a defendant only if the defendant cannot be sued in any of the counties listed above (i.e., where the practices were committed, records are maintained, or the plaintiff would have worked). Defendant conflates the two quoted sentences, deeming “the defendant is not ‘found’ in any of the counties described in the three foregoing criteria” as equivalent to “none of the three enumerated criteria are satisfied.” However, the Court does not read the Ford court as simply stating the same proposition twice, in successive sentences. Instead, it reads the first quoted sentence as paraphrasing the final clause of section 12965, subdivision (c)(3), explaining that when a defendant is not found in any of the first three counties, a plaintiff may elect to sue in the county of defendant’s principal office or residence. In the second quoted sentence, the court explained that, if none of the other criteria apply, by necessity, venue is only proper in the county of the defendant’s residence or principal place of business.

Ford’s description of section 12965, subdivision (c)(3) is not inconsistent with a plaintiff electively choosing to file their claim in the county of defendant’s residence, even when there are other proper venues. Accepting that a defendant is “found” in the county of their residence or principal place of business, which Justice Kaus said “[c]ertainly … would not be stretching it,” then a defendant’s residence or principal place of business is always a permissible venue. Brown, supra, 37 Cal. 3d at p. 490 (conc. opn. of Kaus, J.) Either a defendant’s residence or principal place of business is in the same county where the practices were committed, records are maintained, or the plaintiff would have worked, or defendant is not “found” in those counties. In either case, a plaintiff is permitted to bring the action in the county of defendant’s residence or principal place of business.

Defendant argues that this interpretation requires a defendant to be found in the first three venue criteria, to establish proper venue, and that such a holding is against the weight of authority. Reply at p. 3:19-23. Not so. There is no requirement that defendants be “found” in any of the first three counties to bring the case in one of those counties. See Malloy, supra, 83 Cal.App.5th at p. 559 (rejecting defendant’s contention that “defendant’s physical presence in the county selected for a FEHA lawsuit is a necessary element of the special venue statute.”). Instead, when a defendant is not found in any of those counties, plaintiffs gain the additional option to file the case where the defendant is found, the county of the defendant’s residence or principal place of business. See ibid (“[T]he phrase ‘but if the defendant is not found’ expands, rather than contracts, the plaintiff’s venue options.”).

Moreover, this is consistent with the statute’s permissive language, stating that an action “may be brought” in any of the counties described in the first three options and “may be brought within the county of the defendant’s residence or principal office” if it is elsewhere. Gov. Code 12965, subd. (c)(3) (emphasis added). In contrast, it states that “the superior courts of the State of California shall have jurisdiction of actions brought pursuant to this section … and [a] copy of any complaint filed pursuant to this part shall be served on the principal offices of the department.” Gov. Code 12965, subds. (c)(3)(4) (emphasis added). “[Courts] ‘ordinarily’ construe the word ‘may’ as permissive and the word shall’ as mandatory, particularly when a single statute uses both terms.” Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542 (quoting Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443).

The Malloy describes Justice Kaus’s concurrence as saying, “the term ‘found’ as used in the statute refers to the ability to serve the defendant with process, not to an additional requirement for venue … ‘[s]ince the superior court’s process is statewide, it might be difficult to construe this somewhat quaint language literally….’” Malloy supra, 83 Cal.App.5th at p. 559 (citing Brown, supra, 37 Cal. 3d at p. 490 (conc. opn. of Kaus, J). Yet, as Justice Kaus cautioned, to interpret this literally would lead to the conclusion that defendants can be “found” in every county of the state, as Code of Civil Procedure section 71 provides that “[t]he process of superior courts shall extend throughout the state.” Therefore, while an individual defendant or an entity’s agent could hypothetically be personally served in any county, the better interpretation is that the statute instead refers to the locations where defendants could, in fact, be served. Hence, Justice Kaus concludes, “certainly it would not be stretching [section 12965’s language] to interpret it to refer to an individual defendant’s residence or a corporate defendant’s place of business.” Brown, supra, 37 Cal. 3d at p. 490 (conc. opn. of Kaus, J.).

This interpretation is strengthened by consideration of public policy and statutory canons of construction. “In construing the FEHA venue statute, this court is guided by well-settled rules. ‘The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. Moreover, every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.’” Brown, supra, 37 Cal.3d at p. 484 (internal quotes and citations omitted). “A construction rendering statutory language surplusage ‘is to be avoided.’” Ibid. “To determine the Legislature’s intent, the court looks first to the words of the statute.” Id. at p. 485. “However, the legislative purpose will not be ‘sacrificed to a literal construction of any part of the act.’” Ibid. “The language of a statute ‘should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’” Ibid ( quoting Younger v. Superior Court (1978) 21 Cal.3d 102, 113).

As in Brown, “[i]t is not clear from the language of section 12965 which interpretation was intended. Therefore, this court must look at the purpose of the law to ascertain the Legislature’s intent.” Brown, supra, 37 Cal.3d at p. 485. “The express purpose of the FEHA is ‘to provide effective remedies which will eliminate … discriminatory practices.’” Id. at p. 486. “In addition, the Legislature has directed that the FEHA is to be construed ‘liberally’ so as to accomplish its purposes.” Ibid (quoting Gov. Code, § 1299) “[V]enue is an important consideration for a plaintiff in an employment discrimination suit.” Ibid. “An attorney is more likely to accept representation in an FEHA case if venue is available in a location that facilitates prosecution of the action and minimizes travel and other costs, including the costs of securing important witnesses for trial. Ibid.” “Section 12965, subdivision (b) affords a wide choice of venue to persons who bring actions under the FEHA. This choice maximizes the ability of persons aggrieved by employment discrimination to seek relief from the courts, and it facilitates the enforcement of the FEHA.” Ibid.

Under Defendant’s preferred interpretation, a FEHA plaintiff would be deprived of the basic right afforded by other venue statutes to sue a defendant in a county where it resides, which is contrary to the legislative intent discussed in Brown. Moreover, if Defendants are said to be “found” in Santa Barbara County on these facts, it is hard to imagine a set of facts where a defendant would not be “found” in every county in the state. Such an interpretation would render the final clause of Code of Civil Procedure section 12965, subdivision (c)(3) entirely meaningless. This contradicts the principles that “construction rendering statutory language surplusage is to be avoided” and that “language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.”

Therefore, the Court construes the final sentence of Government Code section 12965, subdivision (c)(3) as meaning: “but if the defendant [does not reside or have its principal place of business] within any such county, an action may [also] be brought within the county of the defendant’s residence or principal office.”

It is undisputed that no defendant has an office or principal residence in Santa Barbara County. Nor is there any evidence that Plaintiff could have served any defendant with process in Santa Barbara County or any other county besides Los Angeles County (where Defendant Mitchell is a resident). Therefore, the Court concludes that defendants are not found within any of the first three venue criteria, and venue is proper in the county of any defendant’s residence or principal office. Because Defendant Mitchell is a resident of Los Angeles County, venue is proper in this court.

III. Convenience of Witnesses and Ends of Justice

Defendant additionally argues that its motion should be granted under Code of Civil Procedure section 397, subdivision (c).

“The court may, on motion, change the place of trial … [w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” Code of Civil Procedure section 397, subd. (c). However, “a motion to transfer venue based on witness convenience cannot be made before an answer is filed Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1665.

Here, none of the Defendants has filed an answer. Defendant appears to concede that its motion for change of venue based on the convenience of witnesses is premature. Reply at p. 7:3-4 (“While Plaintiff’s argument may hold some weight, Plaintiff’s opposition on the same basis is also premature.”) Therefore, the Court does not consider the convenience of witnesses in resolving the instant motion. Accordingly, Defendant’s motion for a change of venue is denied.

III. Attorney’s Fees

Plaintiff seeks to recover attorney’s fees incurred in opposing this motion.

“In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the motion to transfer, whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known.” Code Civ. Proc., § 396b, subd. (b).

The Court’s decision to deny Defendant’s motion is purely a matter of statutory interpretation, which an appellate court has not resolved, and which is capable of multiple interpretations. See Richfield Hotel Management, Inc. v. Superior Court (1994) 22 Cal.App.4th 222, 225, fn. 2 (“Depending upon the interpretation of the term ‘found’ within Government Code section 12965, it might be argued that San Mateo is not a proper court since [defendant] can be ‘found’ in Tulare County”). While the Court is persuaded that Plaintiff has the superior interpretation, the Court concludes that Defendant had a good faith basis for believing that the county of a defendant’s residence or principal office is only proper when the other criteria are not met. Accordingly, the Court declines to award attorney’s fees.

 

CONCLUSION

Defendant’s Motion for Change of Venue is denied.