Judge Daniel M. Crowley, Case Number: 23STCP03262, Date: 2024-03-14 Tentative Ruling

Defendants Valerie Peng’s and Radiant Revolution Enterprises, LLC’s motion for change of venue is granted in the alternative to transfer venue to Lake County.

Defendant Valerie Peng’s Counsel, Carver Farrow II’s, Motion to Be Relieved as Counsel is granted.

Defendant Radiant Revolution Enterprises, LLC’s Counsel, Carver Farrow II’s, Motion to Be Relieved as Counsel is granted.

Defendants Radiant Revolution Enterprises, LLC (“Radiant”) and Valerie Peng (“Peng”) (collectively, “Defendants”) move for this Court to order venue transferred to Napa County, or in the alternative, Lake County. (Notice Venue, pg. 1; C.C.P. §§395, 392.)

Defendants’ Counsel, Carver Farrow II, of Dracup & Patterson, Inc., moves to be relieved as Defendants’ counsel. (Motion Radiant; Motion Peng.)

“The court may, on timely motion, order transfer of an action ‘[w]hen the court designated in the complaint is not the proper court.’ [Citations] The moving party must overcome the presumption that the plaintiff has selected the proper venue. [Citation] Thus, ‘[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.’ [Citation] In opposing the motion to change venue, ‘[t]he plaintiff may bolster his or her choice of venue with counter-affidavits consistent with the complaint’s theory of the type of action but amplifying the allegations relied upon for venue.’ [Citation.]” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)

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. (C.C.P. §395.5.)

If venue is proper in either of several counties (i.e., actions triable at defendant’s residence or elsewhere), defendant must do more than merely show residence in another county. Rather, defendant has the burden of “negating the propriety of venue as laid on all possible grounds”: i.e., it must show that the county selected by plaintiff was not the place of injury or contracting, etc. (Karson Industries, Inc. v. Superior Court (1969) 273 Cal.App.2d 7, 8-9.)

“Generally, when venue is proper in more than one county, a plaintiff has the choice of where to file the action from among the available options. There is a presumption that the county in which the plaintiff chose to file the action is the proper county. The burden rests on the party seeking a change of venue to defeat the plaintiff’s presumptively correct choice of court.” (Battaglia Enterprises, Inc. v. Superior Court (2013) 215 Cal.App.4th 309, 313-314.)

For venue purposes, actions are classified as “local” or “transitory.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 482 n.5.) To determine whether an action is “local” or “transitory,” the Court looks to the “main relief sought.” (Id.) Where the main relief sought is personal, the action is transitory; however, where the main relief involves rights to real property, the action is local. (Id.) In transitory actions against individual defendants, the general rule of venue is applicable, where the county in which the defendants or some of them reside at the commencement of the action is the proper county for the trial of the action. (See C.C.P. §395(a); see also Brown, 37 Cal.3d at pg. 483.) Under C.C.P. §395, “residence” means “actual bodily presence in the place combined with a freely exercised intention of remaining there permanently or for an indefinite time.” (See Enter v. Crutcher (1958) 159 Cal.App.2d Supp. 841, 845.)

Venue is determined based on the complaint on file at the time the motion to change venue is made. (Brown, 37 Cal.3d at pg. 482, citing Haurat v. Superior Court (1966) 241 Cal.App.2d 330, 337.)

Defendants met their burden to defeat the presumption that the Plaintiff filed his action in a proper county under C.C.P. §395. First, the Complaint does not allege any of the Defendants reside in Los Angeles County. (Decl. of Peng ¶¶3-4.) Second, Defendants submitted affidavits that they do not conduct business in Los Angeles County. (Decl. of Peng ¶5.) Plaintiff’s Complaint alleges Defendant Radiant’s member, Defendant Peng, is a resident of Lake County. (Complaint ¶4.) This is sufficient to demonstrate Peng’s place of residence as well as Radiant’s. The Complaint also alleges Radiant’s principal place of business is Sebastopol, California, located in Sonoma County, which is Radiant’s additional place of residence. (Complaint ¶3.) Therefore, neither Defendants are residents of Los Angeles County.

Plaintiff Joey Franco (“Franco”) (“Plaintiff”) alleges in his Complaint that venue is proper in Los Angeles County because “the conduct from which the Complaint stems was committed on Plaintiff in the County of Los Angeles and the sale of converted marijuana is likely to take place in in the County of Los Angeles.” (Complaint ¶6.) However, this is not the standard for determining the propriety of venue on a motion to transfer venue.

Since Radiant and Peng are residents of Lake County, and the gravamen of Plaintiff’s allegations stem from conduct that took place at real property located at a farm (“Farm”) located at 2593 New Long Valley Road, Clearlake Oaks, California 95423 in Lake County, venue is proper in Lake County. (See Complaint ¶¶13, 17, 18a, 23, 31, 33, 40, 42-44.)

Further, there is no allegation in Plaintiff’s Complaint of the existence of a contract that was entered into in Los Angeles County. Plaintiff’s argument in opposition that the Court should take judicial notice of Exhibit 1 of Defendants’ Cross-Complaint for the proposition that a contract was entered into in Los Angeles County is unavailing—the mere listing of Plaintiff’s address in West Hills, California is not sufficient to demonstrate that an alleged contract between Plaintiff and Defendants—only alleged in the Cross-Complaint—was executed in Los Angeles County. Nothing in Exhibit 1 of Defendants’ Cross-Complaint makes note of the location in which the contract was entered into. (See Cross-Complaint, Exh. 1.) Further, the Letter of Intent (“LOI”) submitted with Plaintiff’s opposition is similarly unavailing, considering the LOI is not properly authenticated by Plaintiff in his declaration and states the LOI “is an expression of interest only and not meant to be binding on the parties now or in the future.” (Decl. of Franco, Exh. A.)

Plaintiff’s argument that the forum selection clause in LOI ¶10 governs the venue in this case is also unavailing. LOI ¶10 states, “This LOI and all related documents shall be construed in accordance with the laws of the State of California. The forum for any dispute arising under this LOI shall be in Los Angeles, California.” (Decl. of Franco, Exh. A at ¶10.) Aside from the fact that Plaintiff’s declaration fails to properly authenticate the LOI, and the LOI acknowledges it is not a binding contract, the LOI is also between Plaintiff, Defendant Peng, and two other non-parties; Radiant is not a party to the LOI, and therefore the LOI is not enforceable against Radiant.

Accordingly, Defendants’ motion for change of venue is granted in the alternative to transfer venue to Lake County.

Defendants’ motion to for change of venue is granted in the alternative to transfer venue to Lake County.

The Court sets a hearing on an Order to Show Cause why the case should not be dismissed on account of Plaintiff’s failure to pay transfer fees on April 30, 2024, at 8:30 a.m. in Dept. 71.

On September 7, 2023, Plaintiff filed his operative Complaint against Defendants. On November 27, 2023, Radiant filed its Answer. On November 27, 2023, Peng filed her Cross-Complaint against Plaintiff. On December 29, 2023, Plaintiff filed his answer to Peng’s Cross-Complaint.

On March 8, 2024, Peng’s counsel, Carver Farrow, filed the instant Motion to be Relieved as Counsel.

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil form (MC-053)).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

Counsel has submitted completed MC-051, MC-052, and MC-053 forms. Counsel has provided a declaration stating a there are irreconcilable differences with his client, including his client’s attempt to negotiate with opposing counsel directly without including him. (See Decl. of Farrow.) Counsel has indicated that Peng was served with copies of the motion papers filed with the declaration at Defendant Peng’s last known address and confirmed within the past 30 days that the address is current by conversation.

On March 7, 2024, Radiant’s counsel, Carver Farrow, filed the instant Motion to be Relieved as Counsel.

Counsel will be relieved upon filing proof of service on their client of the Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council form MC-053).

Hon. Daniel M. Crowley

Judge of the Superior Court