Judge Audra Mori, Case 20STCV24985 2022-12-08 Tentative Ruling

Judge: Audra Mori, Case: 20STCV24985, Date: 2022-12-08 Tentative Ruling

Case Number: 20STCV24985 Hearing Date: December 8, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MINDY MONROE AVERY, Plaintiff, vs. JOHN CABRAL; DOES 1 THROUGH 25, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No.: 20STCV24985 [TENTATIVE] ORDER GRANTING MOTION TO TRANSFER Dept. 31 1:30 p.m. December 8, 2022

1. Background

On July 2, 2020, Plaintiff Mindy Monroe Avery (“Plaintiff”) filed this action against Defendant John Cabral (“Defendant”) for damages arising from a motor vehicle accident. Plaintiff has not yet filed a proof of service indicating the summons and complaint in the instant action were served on Defendant.

On October 14, 2022, Plaintiff filed the instant motion to transfer venue, originally scheduled for November 1, 2022. On November 1, 2022, the Court continued the hearing on the motion to December 8, 2022, because Plaintiff had filed the motion only 12 court days before the hearing, in violation of CCP § 1005(b). It appears that Defendant has not been served with summons and the complaint, let alone the instant motion, and accordingly, has not filed an opposition. (Plaintiff attached a proof of service of the moving papers showing Plaintiff attempted to serve them by mail on Defendant at an address in Tracy, California. However, Defendant has not yet been served with the Summons and Complaint, making subsequent service of the moving papers by mail unavailing.)

2. Motion to Transfer

Pursuant to CCP §395(a), in an action for personal injuries, the “superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action….”

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 482.) A plaintiff is entitled to the presumption that it has brought the action in a proper county, and the burden to secure a change of venue is normally on the defendant seeking transfer. (J. C. Millett Co. v. Latchford-Marble Glass Co. (1956) 144 Cal.App.2d 838, 839; see also Sequoia Pine Mills, Inc. v. Superior Court (1968) 258 Cal.App.2d 65, 67 (Sequoia Pine Mills, Inc.) [“the presumption is that the defendants are residents of the county wherein the action is commenced, and the burden of proof is cast upon them to show that they were at the commencement of the action residents of another county …”].) Where the moving party challenges the designated venue as improper, the moving party bears the burden of showing the plaintiff's venue selection is “not proper under any of the statutory grounds.” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836; Karson Industries, Inc. v. Superior Court (1969) 273 Cal.App.2d 7, 8-9 [defendant has the burden of “negating the propriety of venue as laid on all possible grounds.”].)

A motion for change of venue must be supported by competent evidence, such as the complaint and declarations of the parties. (Mosby v. Superior Court (1974) 43 Cal.App.3d 219, 227 (Mosby); see also Lieppman v. Lieber (1986) 180 Cal. App. 3d 914, 919 [declaration that relies on hearsay, generalities, and conclusions must be disregarded in determining the motion].) Allegations in the complaint relevant to the issues raised by a motion to change venue are themselves competent evidence upon the questions to be determined. (Mosby, 43 Cal.App.3d at 227.) When the motion seeks transfer to the moving defendant’s county of residence on wrong court grounds, the motion must establish the defendant was a resident of the county to which the transfer is sought at the time the action was commenced. (Sequoia Pine Mills, Inc., supra, 258 Cal.App.2d at 67-68.

Here, Plaintiff’s motion for change of venue is not supported by competent evidence. Neither Plaintiff nor Plaintiff’s counsel provide any explanation as to why this matter was initially filed in Los Angeles County. Moreover, there is no declaration from Plaintiff to support the assertions made in the motion. There only appears to be a declaration from counsel, which does not state where the parties live or how counsel would have knowledge of the same. Rather, counsel declares as follows: "There is one question the Court must decide in ruling on this Motion: Is venue in Los Angeles County proper where none of the parties reside, and where none of the acts alleged in the Plaintiff’s complaint occurred. [sic] Specifically, Plaintiff filed his complaint in the Superior Court of California, County of Los Angeles, Stanly [sic] Mosk Courthouse, although Los Angeles has no connection to this case whatsoever, [sic] venue properly lies in only one place: San Joaquin County, where the subject incident took place, and the majority of Plaintiff’s medical treatment providers, and the expert witnesses are located within the vicinities." (Shemtoub Decl. ¶ 2.) Thus, counsel asks the question of whether venue is proper in a county where no parties reside, but he fails to provide any evidence of where the parties do reside. While he states that the incident took place in San Joaquin County and the majority of providers and experts are there, he identifies not one person who lives in San Joaquin County.

The complaint includes an allegation that the Defendant’s negligent acts causing Plaintiff’s injuries and damages occurred in Tracy, California. (Complaint p. 4 (MV-1), 5 (GN-1).) As such, on the face of the pleading, there is support for Plaintiff’s assertion that the underlying incident occurred outside Los Angeles County. However, the complaint includes the contradictory allegation that this court is the proper court for this action because the injury to person or damage to personal property occurred in its “jurisdictional area.” (Complaint p. 2, ¶ 8.)

The Declaration of Process Server Melissa Ybarra filed on November 28, 2022, describes her attempts to serve Defendant with the summons and complaint in this action at the address a skip trace indicated was his most recent address, and attaches an investigatory report indicating that Defendant’s most current address at the time the complaint was filed was in Tracy, California. (Ybarra Decl., Exh. A.)

Based upon the allegations of the Complaint, Counsel’s declaration that the incident occurred in San Joaquin County, and the Declaration of the Process Server, the Court finds sufficient evidence to GRANT the motion to transfer.

Because transfer is ordered on the ground that Plaintiff filed in the “wrong court,” Plaintiff is responsible for paying the costs and fees of transferring the action to San Joaquin County within thirty days. If the fees and costs are not paid within thirty days, the action is subject to dismissal. (CCP § 399(a); see Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1037.)

Plaintiff is ordered to give notice.

PLEASE TAKE NOTICE:

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 8th day of December 2022

Hon. Audra Mori Judge of the Superior Court