Judge Bruce G. Iwasaki, Case 20STCV39320 2023-02-28 Tentative Ruling

Tentative Ruling: The motion to transfer venue is granted and the motion to stay is moot.

Dave Carothers (Plaintiff or Carothers) sued his prior employer, Carothers, DiSante, Freudenberger, LLP, now known as CDF Labor Law LLP (CDF or Defendant) for constructive discharge in violation of public policy, retaliation under the Fair Employment and Housing Act (FEHA), discrimination, and failure to prevent discrimination and retaliation.

Plaintiff alleged that he was a partner of CDF at the San Diego office and was pushed out from the partnership after developing a heart condition and complaining about age, race, and disability discrimination. In 2018, he allegedly conducted a large arbitration and several jury trials in San Diego and Vista despite his heart condition. He alleges that CDF then demoted him, cut his pay, denied him access to firm financials, and silenced his efforts to speak out against racism, while at the same time using his reputation to bring in clients.

Defendant filed a motion to compel arbitration shortly after the Complaint was filed. This Court denied the motion in May 2021, and Defendant appealed. The Court of Appeal issued a remittitur on December 28, 2022, affirming the denial.

On January 26, 2023, CDF filed a motion to stay this action and/or transfer venue. It contends that there is a pending arbitration in San Diego involving CDF’s claims against Carothers for breach of contract, breach of fiduciary duty, breach of covenant of good faith and fair dealing, promissory estoppel, fraud, and negligent misrepresentation. Thus, CDF argues, this case should be stayed under Code of Civil Procedure section 1281.4 due to the risk of inconsistent rulings. Alternatively, it seeks to transfer this case to Orange County.

Plaintiff filed an opposition, arguing that the employment action is separate and distinct from the arbitration matter, which is a collections issue. In its reply, Defendant asserted that Plaintiff’s allegations of CDF’s pretext are based upon activities at issue in the arbitration action such as the 2018 jury trial in Vista.

Defendant’s request for judicial notice as to documents filed in San Diego Superior Court is granted. (Evid. Code, § 452, subd. (d).)

In its reply, Defendant filed objections to the declaration of Plaintiff’s counsel, J. Mira Hashmall. The objections are sustained as to numbers 1, 4-9, and overruled as to numbers 2, 3.

The Court grants the motion to transfer venue and declines to consider the motion to stay the case.

The court may, on motion, change the place of trial (i.e., venue) if the court designated in the complaint is not the proper court (Code Civ. Proc., §§ 396b, subd. (a), 397, subd. (a)) and, as relevant here, when the convenience of witnesses and the ends of justice would be promoted by the change (§ 397, subd. (c)). The first ground is mandatory under section 396b and discretionary under section 397, subdivision (a). The second ground is discretionary. (Cholakian & Associates v. Superior Court (2015) 236 Cal.App.4th 361, 373; see also Walt Disney Parks & Resorts U.S., Inc. v. Superior Court (2018) 21 Cal.App.5th 872, 878.)

“There is a presumption that the county in which the plaintiff chose to file the action is the proper county.” (Battaglia Enterprises, Inc. v. Superior Court of San Diego County (2013) 215 Cal.App.4th 309, 313–14.) “ ‘[I]t is the moving defendant’s burden to demonstrate that 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.) “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.)

For FEHA claims, “[a]n action may be brought in any county in the state [1] in which the unlawful practice is alleged to have been committed, in the county [2] in which the records relevant to the practice are maintained and administered, or in the county [3] in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, 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).)

Defendant contends that Los Angeles County is an improper venue because it does not satisfy any of the criteria under Government Code section 12965. It argues that the case should be transferred to Orange County, where at least two of the factors under the statute are satisfied.

Defendant first asserts that the allegedly unlawful practices, i.e., the decisions made by CDF, occurred in Orange County. CDF offers the declarations of the alleged decisionmakers that Plaintiff references in his Complaint. For example, Plaintiff specifically names Marie D. DiSante and Timothy M. Freudenberger. (Complaint, ¶¶ 34, 42, 58-60, 62, 63, 64, 66, 68-69, 78.) Both DiSante and Freudenberger filed declarations indicating that they worked and resided in Orange County at all relevant times. (Freudenberger Decl., ¶ 4; DiSante Decl., ¶ 11.) Plaintiff further alleged that when he complained of the discrimination and retaliation, “CDF’s General Counsel, who is also a partner, was on notice . . . and did nothing.” (Complaint, ¶¶ 79, 86, 94, 103, 113.) Defendant provides the declaration of David G. Hagopian, who avers that he serves as CDF’s General Counsel and is “the only person to have served in that role.” Hagopian states that he only works and resides in Orange County. (Hagopian Decl., ¶¶ 3-4.) Additionally, Plaintiff alleged that the Executive Committee made the adverse decisions that comprise the basis of his claims. (Complaint, ¶¶ 9, 14, 17, 60, 68-69, 75.) Indeed, it was the Executive Committee to whom Plaintiff tendered his resignation. (Id. at ¶ 80.) DiSante avers that she, Freudenberger, and another partner, Todd R. Wulffson,[1] comprised the Executive Committee at that time. (DiSante Decl., ¶ 10.)

Next, Defendant contends that its principal place of business has always been in Orange County and that is where the relevant records are maintained. (DiSante Decl., ¶ 9, Ex. 2.)[2]

This is sufficient to show that venue is improper in Los Angeles County. The Court does not consider Defendant’s argument as to discretionary authority regarding the convenience of witnesses. “ ‘The court will not entertain a motion for change of venue on the ground of convenience of witnesses when the defendant has not filed an answer, for the reason that until the issues are joined the court cannot determine what testimony will be material. [Citation.] For the same reason,¿a motion for change of venue cannot be defeated on the ground of convenience of witnesses until an answer is filed.’ ” (Cholakian & Associates v. Superior Court, supra, 236 Cal.App.4th at p. 368.)

Plaintiff alleged that venue was proper here because “CDF has an office in Los Angeles County and Carothers tries cases here.” (Complaint, ¶ 25.) However, the “special provisions of the FEHA venue statute control in cases involving FEHA claims joined with non-FEHA claims arising from the same facts.” (Brown v. Superior Court, supra, 37 Cal.3d at p. 487.) Because Plaintiff alleges three FEHA causes of action, and one cause of action for constructive discharge in violation of public policy, Government Code section 12965 governs.

In his opposition, Plaintiff argues that Los Angeles is a proper venue under the FEHA’s broad statute, and that the motion is untimely because the Complaint was filed in late 2020.

The first argument relies solely on the second factor under Government Code section 12965, subd. (c)(3), that Los Angeles County is where the “unlawful practice is alleged to have been committed.” (Opposition, p. 18:9-10.) But Plaintiff’s only argument on this is that CDF has “offices in multiple locations, including Los Angeles.” (Id. at p. 18:11-13.) That Plaintiff “regularly practiced in courts throughout California, including Los Angeles” is irrelevant to the analysis. The only evidence offered in support of this is counsel’s conclusory declaration, on which this Court sustained most of Defendant’s objections. (See generally Hashmall Decl.) To the extent that Plaintiff is arguing some sort of minimum contacts analysis, this is not a motion challenging jurisdiction. He points to no evidence or allegations that implicate Los Angeles as a proper choice for venue.

Carothers’s second argument – that Defendant’s motion is untimely – does not withstand analysis. Plaintiff argues that this motion was filed “more than two years after Carothers filed his complaint,” but this overlooks the unique procedural history of this case. While the Complaint was filed on October 13, 2020, a motion to compel arbitration was filed shortly after, which was denied in May 2021. Defendant then appealed, which stayed this case until the remittitur issued in December 2022.

Moreover, the motion is not untimely under Code of Civil Procedure sections 396b or 397.[3] Even if it may be considered late under the mandatory provisions of section 396b, the notice of the motion indicates that Defendant is also moving under section 397. In Walt Disney Parks & Resorts U.S., Inc. v. Superior Court¿(2018) 21 Cal.App.4th 872, 878, the Court of Appeal found that the timeliness of a section 397 motion is not governed by section 396b. Thus, the only requirement is that the motion be made within a reasonable time. (Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295.)

Accordingly, the Court finds that the motion was timely and orders this case transferred to Orange County. (Ford Motor Credit Co. v. Superior Court (1996) 50 Cal.App.4th 306, 310 [finding that venue was mandatory in the county that satisfied “at least two of the three enumerated criteria” under Government Code section 12965].)

The transfer shall be made pursuant to Code of Civil Procedure section 399 and Plaintiff shall pay the cost of transfer. (Code Civ. Proc., § 399(a).)

[1] Wulffson also lives and works in Orange County. (Wulffson Decl., ¶ 4.)

[2] CDF does not discuss the third factor, but Plaintiff alleged that he previously worked in the San Diego office. (Complaint, ¶ 37.) In addition, the jury trials that reportedly form the basis for terminating Plaintiff was conducted in San Diego and Vista, which are in San Diego County. (Id. at ¶ 44.) However, because the motion is only seeking to transfer to Orange County, the Court need not consider this issue further.

[3] Plaintiff has not raised these issues because his opposition focuses on delay generally. Therefore, he has waived these arguments.

Department 58