Judge Bruce G. Iwasaki, Case Number: 25STCV03054, Date: 2025-04-16 Tentative Ruling

This is a Song-Beverly action. Plaintiff Robert J. Mikhail (Plaintiff) claims that Defendant Nissan North America and Nissan-authorized repair facilities were unable to repair his 2021 Nissan Leaf, VIN 1N4BZ1DV5MC556521 (Vehicle) within applicable warranty periods. Plaintiff chose to file the matter in Los Angeles County.

Defendant Nissan moves to change venue pursuant to Code of Civil Procedure sections 396b, subdivision (a), and 395, subdivision (b).

“Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.]” (Brown v. Superior Court (1984) 37 Cal.3d 477, 482.) Code of Civil Procedure section 397 provides that “[t]he court may, on motion, change the place of trial in the following cases: When the court designated in the complaint is not the proper court.”

The Complaint sets forth that on July 29, 2021, Plaintiff leased the Vehicle (Compl., ¶ 5.) The lease agreement, and all the repairs to the Vehicle were performed at Mossy Nissan Kearny Mesa, located at 8118 Clairemont Mesa Blvd, San Diego, CA, 92111. (Critchlow Decl., ¶ 2, Ex. A.) Additionally, at the time Plaintiff purchased the Vehicle, he resided in at 7775 Melotte St., San Diego, CA, 92111. (Critchlow Decl., ¶ 2, Ex. A.)

The Compliant arises from a consumer transaction under Code of Civil Procedure section § 395, subdivision (b). “[I]n an action arising from . . . provision of goods . . . intended primarily for personal, family or household use, . . . the superior court in the county where the buyer . . . in fact signed the contract, where the buyer . . . resided at the time the contract was entered into, or where the buyer . . . resides at the commencement of the action is the proper court for the trial of the action.” (Code Civ. Proc., § 395, subd. (b).) “[W]hether the action is brought against a consumer defendant or by a consumer plaintiff, the venue provisions of section 395, subdivision (b) apply as long as the action arises from a consumer transaction specified in the statute.” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 838 [emphasis added].)[1]

Here, Defendant argues that the venue in Los Angeles County is improper because San Diego County is the county where the purchase contract for the Vehicle was entered into, where Plaintiff resided at the time the contract was entered, and where Plaintiff resided at the commencement of this action.

As the warranties at issue in the Complaint arise from Plaintiff’s purchase of the Vehicle,[2] this action arises “from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use…” under section 395, subdivision (b). In addition, all the repairs to the vehicle were performed in San Diego County, and thus any alleged breach would have occurred in San Diego County.

As such, Defendant carried its burden of showing venue in Los Angeles County is improper under Section 395, subdivision (b). Further, Defendant has demonstrated that venue is proper in San Diego County.

Defendant also requests monetary sanctions pursuant to Code of Civil Procedure section 396b, subdivision (b), in the amount of $1,560 against Plaintiff’s counsel, Downtown L.A. Law Group, for its refusal to transfer this matter to the proper county and forcing Defendant Nissan to incur costs in preparing this motion.

If an action is filed in an improper venue, the trial court has the discretion to order the losing party to pay the prevailing party’s “reasonable expenses and attorney's fees incurred in making ... the motion to transfer” venue pursuant to section 396b, subdivision (b).

The statute provides: “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. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party's papers, or on the court's own noticed motion, and after opportunity to be heard.” (Code Civ. Proc., § 396b, subd. (b).)

“The statute requires the court to assess whether the attorney acted in good faith after having first skillfully evaluated the facts and reviewed applicable statutes and case law. The phrase ‘good faith’ is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation. [Citation.] Thus, if, after reviewing the factual and legal presentation made by the losing party, the court finds that no reasonable attorney would have honestly chosen such a forum, and that the forum appears to have been selected to impair defendant's right to defend, an award of attorney fees would be entirely proper.” (Metzger v. Silverman (1976) 62 Cal.App.3d Supp. 30, 38-39.) “The statute also requires the attorney ... opposing a motion for a change of venue, to carefully investigate the facts with a view of determining which court is proper for the trial of the action. If, following a thorough investigation, the attorney has an honest and reasonable belief that his client has a tenable contention, and he believes that he can establish the existence of such facts supporting his choice of venue to the satisfaction of the court, this part of his task is complete.” (Id. at p. 39.) “An attorney who fails to review the applicable case law, and relevant statutes, before filing an action, or before making a motion to change venue, runs a substantial risk that attorney fees will be assessed against him. While the statute does not require a lawyer to be omniscient, it does require him to demonstrate professional competence.” (Id. at pp. 39-40.)

Here, Defendant’s evidence shows that, on March 11, 2025 and March 13, 2025, Nissan’s counsel contacted Plaintiff’s counsel numerous times to inform him that he filed the action in the improper venue and requested that he stipulate to transfer venue to San Diego County. (Critchlow Decl., ¶ 3, Exs. B, C.) Plaintiff’s counsel never responded. (Critchlow Decl., ¶ 4.)

Moreover, Plaintiff has failed to file an opposition to this motion, suggesting that Plaintiff knew the motion was meritorious.

The motion to change venue is granted. The request for sanctions in the amount of $1,560 is granted. Plaintiff shall pay $1,560 to Defendant’s counsel on or before May 16, 2025.

[1] Code of Civil Procedure section 395.5 does not supersede Code of Civil Procedure section 395, subdivision (b). Code of Civil Procedure section 395.5, which governs venue for corporate defendants, states in material part: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.” This permissive language contrasts with the mandatory terms of Code of Civil Procedure section 395, subdivision (b), which specifically apply to consumer transactions: “[s]ubject to the power of the court to transfer actions or proceedings as provided in this title,” it is “the proper court;” not “except as otherwise provided” or “a proper court.” (Emphasis added.) That language differs from other sections, including from Code of Civil Procedure section 395(a), stating that “[e]xcept as otherwise provided by law,” which opens the applicability of other sections for venue. The legislature intentionally distinguished between types of actions making proper venue in consumer transactions more limited. By clearly being an action arising from a consumer transaction, proper venue is determined by Code of Civil Procedure section 395, subdivision (b).

[2] (See Ballesteros v. Ford Motor Company (Cal. Ct. App., Mar. 25, 2025, No. A172271) 2025 WL 900014, at *11 [“[T]he Commercial Code makes clear that express and implied warranties may arise apart from a contract between the buyer and seller. That is where the Song-Beverly Act steps in, affirming warranties created in the absence of privity. And under that Act, manufacturer warranties arise from the event of a sale but not necessarily from the written sales contract . . ..”] [emphasis added].)

Judge Bruce G. Iwasaki

Department 58