Judge Audra Mori, Case 22STCV21680 2022-09-06 Tentative Ruling

Plaintiff Hae In Choy (“Plaintiff”) filed this action against defendants Disney Enterprises, Inc. (“DEI”) and Walt Disney Properties Corp. (“WDPC”) for injuries relating to Plaintiff’s slip and fall in a restroom. Plaintiff alleges that she was an invitee at the Disneyland theme park on February 9, 2020, located in Anaheim, California when she slipped and fell on liquid that had been allowed to accumulate on the floor. Plaintiff has filed Amendment to Complaint naming Walt Disney Parks and Resorts U.S., Inc. (“WDPR”) as Doe 1.

At this time, Defendants DEI, WDPC, and WDPR (collectively, “Defendants”) move for an order transferring venue to Orange County. Plaintiff opposes the motion, and Defendants filed a reply.

Defendants contend that Orange County is the proper venue because the incident giving rise to this action occurred in Orange County, the only named defendant that could be liable for the injuries alleged- WDPR- has its principal place of business in Orange County, and the other named defendants- DEI and WDPC- are not proper defendants and were joined for venue purposes only.

In opposition, Plaintiff asserts that based on her counsel’s investigation as to which Disney corporate entities are likely to be responsible, Plaintiff named DEI and WDPC as defendants. Plaintiff asserts that she is alleging joint enterprise and alter ego theories of liability as to Defendants. Further, Plaintiff contends that venue is proper in Los Angeles County because DEI and WDPC each have their principal place of business in Los Angeles County, and DEI and WDPC were not joined solely for purposes of venue.

In reply, Defendants assert that WDPR is the only properly named defendant and has its principal business office in Orange County, where the incident also occurred. Defendants aver that their evidence shows that WDPR is the only entity that owns, manages, maintains, and controls Disneyland Park.

Pursuant to CCP §395(a), is 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… If any person is improperly joined as a defendant or has been made a defendant solely for the purpose of having the action tried in the superior court in the county where he or she resides, his or her residence shall not be considered in determining the proper place 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 of Alameda County (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 on the defendant. (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, 69 [“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, 896; Karson Industries, Inc. v. Sup, Ct. (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; 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].) 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. v. Superior Court of Tuolumne County (1968) 258 Cal.App.2d 65, 67-68.)

If the resident defendant is “improperly joined” or is a defendant solely for the purpose of having the action tried where that defendant resides, that defendant is disregarded for purposes of determining venue. (CCP § 395(a); see Heringer v. Schumacher (1928) 99 Cal.App. 349, 351 [when a plaintiff filed a breach of contract action against two defendants and the defendant requesting a change of venue showed that the second defendant was not a party to the contract being sued upon, there was no valid cause of action against the second defendant and thus venue could not be based on the second defendant’s residence because the second defendant had been “improperly joined.”]; compare Freeman v. Dowling (1933) 219 Cal. 213, 216 [“sham joinder” was not found when the claim against the defendant appeared to have been pled in good faith and was not on its face “so glaringly and vitally defective as to be beyond correction by amendment”], and Hellman v. Logan (1905) 148 Cal.58, 60-61 [when a defendant that resides in the county in which the action is brought is a necessary and proper party defendant, it is immaterial that another or principal defendant resides in another county].)

Here, Plaintiff’s slip and fall incident occurred in the Disneyland theme park located in Anaheim, California, which is within Orange County. Defendants assert that WDPR is the only propre defendant in this action because WDPR has at all times since April 30, 1993, owned and operated the Disneyland theme park in Anaheim, California. Defendants submit a declaration from Clark R. Jones (“Jones”), who is WDPR’s Senior Vice President and Assistant Secretary, attesting to this fact. (Mot. Jones Decl. ¶ 4.) Jones further provides that WDPR is a Florida corporation authorized to transact business in California and has that its principal office in Anaheim, California. (Id. at ¶ 3.) This is corroborated in WDPC’s Statement of Information filed with the California Secretary of State. (Id. Exh. A.) Furthermore, Defendants submit a declaration from David A. Ontko (“Ontko”), who is DEI’s Senior Vice President, in which Ontko attests that DEI does not own, operate, lease, manage, or maintain Disneyland Park, including its restrooms, and did not on February 9, 2020, and that DEI consists primarily of licensing Disney intellectual property. (Mot. Ontko ¶¶ 4-5.) Defendants also provide a declaration from Michael Salma (“Salma”), who is WDPC’s Assistant Secretary, similarly stating that WDPC does not own, operate, lease, manage, or maintain the Disneyland theme park, including its restrooms, and did not on February 9, 2020, and that WDPC primarily consists of a real estate holding company but does not and did not own the Disneyland theme park on the date of the incident. (Mot. Salma Decl. ¶¶ 4-5.)

Defendants aver that Plaintiff named DEI and WDPC in an attempt to establish venue in Los Angeles County, but DEI and WDPC have no connection to the alleged injuries, and so, their residences should be disregarded for venue purposes.

In opposition, Plaintiff contends that DEI and WDPC have their principal place of business in Los Angeles County. (Opp. Exhs. A-B.) Defendants do not dispute this fact. Consequently, whether venue is proper turns on whether DEI and WDPC are improperly joined defendants or were named solely for venue purposes, or whether they are proper defendants as Plaintiff contends.

Plaintiff argues DEI and WDPC were not joined solely for purposes of venue because Plaintiff has a good faith belief that DEI and WDPC are liable individually and under alter ego and joint enterprises theories. Plaintiff contends that the complaint sufficiently pleads alter ego and jointer enterprise liability against Defendants.

“Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations. [Citations.]” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) “[T]he corporate form will be disregarded only in narrowly defined circumstances and only when the ends of justice so require.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 301.) Alter ego is utilized to prevent two parties with the same interest from inequitably using corporate form to thwart third party's rights. (Communist Party v. 522 Valencia (1995) 35 Cal.App.4th 980, 995.) To bring a claim for alter ego, a plaintiff “must allege: (1) such a unity of interest and ownership between the corporation and its equitable owner that no separation actually exists, and (2) an inequitable result if the acts in question are treated as those of the corporation alone.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 417.) The facts of the case must be such that adherence to the “fiction” of the corporation's “separate existence” would sanction a fraud or promote injustice. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300.)

Plaintiff is informed and believes that there is a unity of interest and ownership between DISNEY ENTERPRISES, INC. and WALT DISNEY PROPERTIES CORP. so that the two companies form a single enterprise, and they will be collectively referred to as “Disney” or “Defendants.”

Plaintiff does not know the true name(s) or identity(ies) of the Defendants named herein as DOES 1 through 20, inclusive, and each of them, and therefore, under the provisions of California Code of Civil Procedure § 474, sues such Defendants by such fictitious names. Plaintiff is informed and believes, and thereon alleges that each of the Defendants designated herein as a DOE is involved in, entitled to, or in some manner responsible as the principle, beneficiary, agent, co-conspirator, joint venturer, alter ego, third party beneficiary or otherwise, for the transactions, events and/or acts herein described, and thereby proximately caused injuries and damages to Plaintiff as herein alleged…

Plaintiff’s alter ego allegations are, thus, made on information and belief, rather than on any personal knowledge. Aside from laying venue, the allegations have little evidentiary weight in the analysis of this motion. The allegations are not sufficient by themselves to rebut Defendants’ verified affidavits from Jones, Ontko, and Salma attesting that WDPR owns, manages, and controls the Disneyland theme park, and DEI and WDPC do not and did not on the date of the incident. (See Quick v. Corsaro (1960) 180 Cal.App.2d 831 [holding that unless the defendant's affidavit sufficiently controverts an unverified complaint's allegations relating to venue, no change would be granted].) Moreover, Plaintiff does not otherwise submit any evidence or affidavits controverting Jones’, Ontko’s, or Salma’s declarations. To the extent Plaintiff contends that WDPR has not named any directors in its Statement of Information, Plaintiff does not cite any authority or evidence suggesting that this is sufficient to support a finding of alter ego liability in this case.[1]

Therefore, the evidence shows that DEI and WDPC are improperly joined and should be disregarded for purposes of determining venue. The evidence shows that only WDPR owned, controlled, and maintained the Disneyland theme park on the date of the incident, and DEI and WDPC did not. (See Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.].) Plaintiff does not suggest there is any other basis for finding DEI and WDPC liable for Plaintiff’s injuries.

When it is clear “‘that no substantial factual basis exists for the cause of action alleged against the resident defendant, the motion to change venue should be granted. This might be true, for example, where on the basis of facts disclosed in the moving party's affidavits and not denied by the plaintiff it appears as a matter of law that plaintiff cannot prevail.’” (Minyard v. Superior Court (1967) 248 Cal. App. 2d 633, 637.) In Minyard, the Court of Appeal found, “Here there were No [sic] conflicting affidavits for the court to consider. It was shown incontrovertibly that plaintiff could not prove that defendant [entity], a corporation, had anything whatsoever to do with the accident upon which the action was based. The lower court was required, as a matter of law, to follow the mandate of section 395 that the residence of said corporation ‘must not be considered in determining the proper place for the trial of the action.’ ” (248 Cal. App. 2d at 637.) As in Minyard, in this case, Plaintiff has not submitted any affidavits or evidence to controvert the affidavits submitted by Defendants, which demonstrate that DEI and WDPC have no liability for the slip and fall incident at WDPR’s theme park.

Based on the foregoing, Defendants’ motion to transfer venue to Orange County is granted.

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 Orange County within thirty days after service of notice of the transfer order. If Plaintiff fails to do so within five days after service of notice of the order, any other interested party, whether named in the complaint or not, may pay such costs and fees in order to expedite the transfer. 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.)

Hon. Audra Mori

Judge of the Superior Court

[1] In reply, Defendants assert that WDPR’s directors are listed with the Florida Department of State.