Judge Christopher K. Lui, Case Number: 22STCV12227, Date: 2023-11-09 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendants obtained possession of Plaintiff’s 1996 Porsche 933 Turbo Andial pursuant to a Vehicle Consignment Agreement. Plaintiff alleges that Defendants sold the vehicle to a third party with modifications, but have failed to pay Plaintiff the specified purchase price.

Defendants Bruce Canepa and Canepa Group, Inc. move to change venue to Santa Cruz County.

Defendants Bruce Canepa and Canepa Group, Inc.’s motion to change venue pursuant to Civ. Proc. Code, §§ 395 and 396b(a) is DENIED as untimely.

Defendants may bring a motion to transfer pursuant to Civ. Proc. Code, § 397 based on convenience of witnesses after Defendants file their answer.

Defendants’ request that the Court take judicial notice of the Complaint filed in this action is GRANTED per Evid. Code, § 452(d)(court records).

Defendants Bruce Canepa and Canepa Group, Inc. move to change venue to Santa Cruz County pursuant to Civ. Proc. Code, §§ 395 and 396b(a).

Plaintiff’s argument that this motion to change venue is untimely is well-taken.

The Complaint was filed on April 11, 2022. Substituted service was effective on April 25, 2022. Defendants’ time to respond to the Complaint was May 25, 2023. The parties stipulated to an extension until June 24, 2022 for Defendants to respond. Defendants filed their motion to change venue on July 12, 2022.

(a) Except as otherwise provided in Section 396a[2], 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.

. . .

(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.

A motion for change of venue pursuant to Civ. Proc. Code, § 396b is properly denied if it is untimely.

It also appears that the motion for change of place of trial on the ground that Riverside County was not a proper county was not made at the time of the filing of the answer and demurrer. This motion was properly denied. (Code Civ. Proc., §§ 395 and 396b.)

(E. C. Livingston Co. v. Blythe Alfalfa Growers Asso. (1956) 139 Cal. App.2d 161, 163-164.)

As such, the motion to change venue pursuant to Civ. Proc. Code, § 396b is DENIED. Defendants are given 30 days to respond to the Complaint[3].

The Court notes that to the extent that Defendants assert that the convenience of witnesses and ends of justice would be promoted by a change of venue, they may bring a motion to transfer pursuant to Civ. Proc. Code, § 397.

(c) [3:559.5] Timeliness: Although CCP § 397 contains no express time limitation, a motion for change of venue based on convenience of witnesses must be made within a reasonable time after the answer is filed. What constitutes a “reasonable” time rests largely in the trial court's discretion. [Cooney v. Cooney (1944) 25 C2d 202, 208, 153 P2d 334, 338]

(Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial [3:559.5][The Rutter Group June 2023 Update].)

[1] Civ. Proc. Code, § 396b(e) provides: “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.”

[2] CCP § 396a pertains to cases subject to Civil Code § 1812.10 (action on contract or installment account—retail installment sales), Civil Code § 2984.4 (Automobile Sales Finance Act), CCP § 395(b)(action arising from offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family, or household use), or CCP § 1161 (unlawful detainer).

[3] Civ. Proc. Code, § 396b(e) provides: “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.”