Judge: Cherol J. Nellon, Case: 23STCV31296, Date: 2024-04-16 Tentative Ruling

Case Number: 23STCV31296    Hearing Date: April 16, 2024    Dept: 14

Black v. Premium

Case Background

            Plaintiff alleges that she was sexually harassed while she worked for Defendants, and was ultimately sexually assaulted by one of their employees while on work trips to Las Vegas, Nevada and Chesterfield, Missouri. Plaintiff further alleges that she was fired when she reported the incidents.

On December 21, 2023, Plaintiff filed her First Amended Complaint (“FAC”) for (1) FEHA Discrimination, (2) FEHA Harassment, (3) FEHA Retaliation, (4) Failure to Prevent, (5) Violation of Labor Code § 1102.5, (6) Violation of Labor Code § 98.6, (7) Violation of Labor Code § 6310, (8) Wrongful Termination, (9) Sexual Battery, (10) Gender Violence, (11) Negligent Supervision and Retention, and (12) Intentional Infliction of Emotional Distress (“IIED”) against Defendants Pretium Packaging, LLC, Pretium Holding, LLC, and Pretium PKG Holdings, Inc. (collectively “Pretium”), Richard Davis (“Davis”) and DOES 1-20.

On January 11, 2024, Defendants Pretium removed the case to federal court.

On February 16, 2024, a notice of remand was filed.

On April 8, 2024, Defendant Davis filed his General Denial.

No trial date has yet been set.

Instant Motion

Defendants Pretium now move this court for an order transferring this action to Orange County on the grounds that Plaintiff did not work in Los Angeles County and her alleged harm did not occur here. Both parties request an award of costs and fees for this motion.

Decision

The motion is DENIED. The requests for costs and fees are DENIED. Defendants Pretium are to file a responsive pleading within 10 days.

Governing Standards

Code of Civil Procedure § 395 states, in relevant part:

“(a) Except 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. If the action is for injury to person or personal property or for death from wrongful act or negligence, 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…”

Code of Civil Procedure § 395.5 provides:

“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.”

Code of Civil Procedure § 396b states, in relevant part:

(a) …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.

(b) 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.

…

(e) If the motion to transfer is denied, the court shall allow the defendant time to move to strike, demur, or otherwise plead if the defendant has not previously filed a response.

Code of Civil Procedure § 397 also states in relevant part:

“The court may, on motion, change the place of trial in the following cases:

(a)   When the court designated in the complaint is not the proper court…”

Government Code § 12965(c)(3) provides:

“The superior courts of the State of California shall have jurisdiction of actions brought pursuant to this section, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or 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, 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.”

Venue is determined based on the causes of action included in the operative complaint as of the time the motion to transfer is made. Brown v. Superior Court (1984) 37 Cal.3d 477, 482. “[T]he special provisions of the FEHA venue statute control in cases involving FEHA claims joined with non-FEHA claims arising from the same facts.” Id. at 487.

The plaintiff’s choice of venue is presumptively proper. Fontaine v. Superior Court (2009) 175 Cal.App.4^th 830, 836. The moving party has the burden of proving plaintiff’s choice improper under any possible ground. Id. “[S]o long as the plaintiff chooses a venue that is proper as to one defendant, the entire case may be tried there, regardless of whether venue would be improper with respect to other defendants if the causes of action against them were analyzed separately.” K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4^th 490, 504.

Discussion

            Subdivision 12965(c)(3) offers three alternative choices of venue: (1) any county in which an alleged FEHA violation occurred, (2) the county where the relevant business records are maintained, or (3) the county in which the plaintiff would have worked. There is some dispute as to the meaning of the reference to the defendant not being “found” in one of those counties (see Malloy v. Superior Court (2022) 83 Cal.App.5^th 543, 559, but the issue is not material to the present motion.

            Defendants Pretium argue that (1) the alleged violations did not occur in Los Angeles County, (2) none of their records are kept in Los Angeles County, and (3) Plaintiff did not work in Los Angeles County. They then argue that their place of business, and only California office, is in Anaheim, in Orange County. Therefore, they conclude, venue is only proper in Orange County. Defendants are incorrect.

            The only dispute here is over the third point. Defendants produce evidence that their only California office is in Orange County, that Plaintiff is a remote employee who lives in Orange County and had a desk in their Orange County office, and that no one to whom she reported worked in Los Angeles County. Plaintiff responds by submitting her own declaration, in which she testifies that her job was not only remote, but mobile: she was assigned to travel and meet clients, the plurality of whom were in Los Angeles or San Diego. In fact, Plaintiff’s “largest account” was located in Los Angeles.

            Responding to this on reply, Defendants Pretium make two arguments. First, they suggest that, because Section 12965(c)(3) uses a definite article in referring to “the” county where the Plaintiff would have worked, there can only be one county in which the Plaintiff was employed. That county, Defense says, would be Orange County, because that’s where Plaintiff had her desk(s) and where the other employees were.

            There is nothing fundamentally unreasonable about Defense’s literal reading. However, there is no on-point authority which directly supports it either, and case law suggests that it is not correct. As the California Supreme Court has explained, the Subdivision 12965(c)(3) affords plaintiffs a “wide choice of venue,” partly for the purpose of attracting counsel by allowing them to file in convenient locations. Brown, supra, 37 Cal.3d at 486. Therefore, the court’s obligation is to construe the statute “broadly” to remove barriers to enforcement of FEHA. Malloy, supra, 83 Cal.App.5^th at 555-557. From Plaintiff’s declaration, it appears that the place where much of her work actually took place was Los Angeles County. Therefore, Los Angeles County is “the county in which the aggrieved person would have worked.”

            The second argument made by Defendants Pretium is that this court should not believe Plaintiff’s declaration. But the court does not see any reason to discredit Plaintiff’s testimony. Her feelings about the Orange County judges in her divorce proceedings are of minimal relevance. The fact that she disagrees with Defense’s legal position, and the fact that none of the alleged bad acts occurred in Los Angeles have no relevance at all to Plaintiff’s credibility. Her testimony is neither unusually vague nor contradicted by the statement that she and her colleagues worked remotely, out of their homes.

            For the foregoing reasons, venue is proper here in Los Angeles County. However, there are two remaining issues: (1) both parties request that the court award fees and costs for this motion under Section 396b(b), and (2) the deadline for Defendants Pretium file their responsive pleading.

            Under these circumstances,[1] an award of costs and fees to either side would be inappropriate. As already noted, Defendants’ reading of the statute is perfectly reasonable. For policy reasons set forth in the case law, as discussed above, this court disagrees. But there is no authority directly on point, and Defense should not be penalized for taking a direct, plain meaning approach to the text.

            Section 396b(e) requires the court to set a time in which Defense must file a responsive pleading. As Plaintiff notes, this case has been dragging a bit. Defense filed a notice of removal, then stipulated to remand; a process that occupied roughly a month. Defense then waited another month before filing this motion, opting not to simultaneously file a responsive pleading. Defendants Pretium have been aware of this case, and represented by counsel, for at least 3 months. They should be ready to file a responsive pleading by now. 10 days should be sufficient time for them to do so.

Conclusion

            Because the FEHA venue provisions must be read broadly to eliminate barriers to enforcement, and because Plaintiff has supplied evidence that she did a substantial portion of her work in Los Angeles County, this is the county where Plaintiff would have worked and venue is proper here. Therefore, the motion is DENIED. However, Defendants’ reading of the statute is reasonable and straightforward, so no award of attorney’s fees or costs is appropriate at this time. Therefore, the requests for fees and costs are DENIED. Finally, since Defendants Pretium have been litigating this case for three months without responding, they should be prepared to do so. Therefore, their responsive pleading is due within 10 days.