Judge: Daniel S. Murphy, Case: 24STCV08986, Date: 2024-10-02 Tentative Ruling

Case Number: 24STCV08986    Hearing Date: October 2, 2024    Dept: 32

BACKGROUND

            On April 9, 2024, Plaintiff Andy Nickerson filed this action against Defendant Eric Icenogle. Plaintiff filed the operative First Amended Complaint on May 7, 2024, asserting causes of action for (1) violation of the Unfair Competition Law and (2) violation of the Consumer Legal Remedies Act. The FAC alleges that Plaintiff purchased a Ford Bronco from Defendant based on Defendant’s false representations about the characteristics and quality of the vehicle. 

            On September 5, 2024, Defendant filed the instant motion to transfer venue to Tuolumne County. Plaintiff filed his opposition on September 18, 2024. Defendant filed his reply on September 24, 2024.

LEGAL STANDARD

“[T]he 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.” (Code Civ. Proc., § 395(a).) However, “in an action arising from an offer or provision of goods . . . intended primarily for personal, family or household use, . . . or an action arising from a transaction consummated as a proximate result of either an unsolicited telephone call made by a seller engaged in the business of consummating transactions of that kind or a telephone call or electronic transmission made by the buyer or lessee in response to a solicitation by the seller, the superior court in the county where the buyer or lessee in fact signed the contract, where the buyer or lessee resided at the time the contract was entered into, or where the buyer or lessee resides at the commencement of the action is the proper court for the trial of the action.” (Id., § 395(b).)

“The general rule is that venue is proper only in the county of the defendant's residence.” (Williams v. Superior Court (2021) 71 Cal.App.5th 101, 108.) “Thus, the right of a plaintiff to have an action tried in a county other than that of the defendant's residence is exceptional. If the plaintiff would claim such right he must bring himself within the exception.” (Id. at p. 109.) “[A]ny ambiguities in the complaint must be construed against the plaintiff towards the end that the defendant will not be deprived of the right to a trial in the county of his or her residence.” (Ibid.)

The facts demonstrating proper venue must be stated in a complaint verified by the plaintiff or the plaintiff’s attorney, or in a declaration attached to the complaint. (Code Civ. Proc., § 396a(a).) Upon 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.” (Id., § 396b(a).)  

DISCUSSION

Defendant argues that Tuolumne County is the proper venue because that is where Defendant resides. (See Icenogle Decl. ¶ 4.) However, this is “an action arising from an offer or provision of goods . . . intended primarily for personal, family or household use.” (See Code Civ. Proc., § 395(b).) Although Plaintiff does not explicitly allege that the Bronco was for personal use, he alleges a violation of CLRA, which only applies to the sale of goods for personal, family, or household use. (See Civ. Code, § 1761(a), (d).) Under section 395(b), venue is proper where the buyer resides at the time of the action. Plaintiff, the buyer, resided in Los Angeles County at the time of the action. (Compl. ¶ 13; Nickerson Decl. ¶ 3.)

            Defendant argues that because the complaint is unverified and Plaintiff did not attach a declaration to the complaint, the Court cannot consider Plaintiff’s declaration filed in support of his opposition to this motion. While the affidavit should be filed with the complaint, “the court may, on terms that are just, permit the affidavit to be filed after the filing of the complaint, and a copy of the affidavit shall be served on the defendant and the time to answer or otherwise plead shall date from that service.” (Code Civ. Proc., § 396a(a).) Thus, the Court may consider Plaintiff’s late declaration. Plaintiff avers under oath that he resides in Los Angeles (Nickerson Decl. ¶ 3), and there is no evidence to the contrary. The Court finds that Plaintiff resides in Los Angeles County.      

Defendant also argues that section 395(b) does not apply because Defendant’s alleged advert on eBay does not constitute “solicitation.” (See Compl. ¶ 5.) However, section 395(b) applies “in an action arising from an offer or provision of goods . . . intended primarily for personal, family or household use,” regardless of whether solicitation is involved. The statute uses the word “or” to denote that solicitation is but one way of triggering the exception. (See Kray Cabling Co. v. County of Contra Costa (1995) 39 Cal.App.4th 1588, 1593 [“The use of this disjunctive reflects a legislative intent that either event, standing alone, may trigger the statute”].) Thus, section 395(b) applies even if this case does not involve solicitation.

This conclusion is supported by Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, the case Defendant cites. The court in Fontaine stated that section 395(b) “authoriz[es] venue in the county where a consumer plaintiff resides at the commencement of his or her action arising from a consumer transaction as specified in the statute.” (Id. at p. 839.) In that case, the plaintiff’s action arose “from a loan that he obtained primarily for personal, family or household use, which is a consumer transaction specified in section 395, subdivision (b).” (Ibid.) The court did not additionally require the plaintiff to demonstrate solicitation.      

Here, Plaintiff similarly alleges a “consumer transaction as specified in statute.” (See Fontaine, supra, 175 Cal.App.4th at p. 839.) Specifically, the action arises from “an offer or provision of goods . . . intended primarily for personal, family or household use.” (See Code Civ. Proc., § 395(b).) Thus, like in Fontaine, section 395(b) is triggered regardless of any solicitation. Because section 395(b) permits venue in the plaintiff’s county of residence at the time of the action, Los Angeles County is the proper venue.

Defendant cites Gallin v. Superior Court (1991) 230 Cal.App.3d 541, 543, where the court held that “the venue provision of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) does not override the general rule a defendant is entitled to have an action tried in the county of his or her residence.” However, Plaintiff is not relying on the venue provision in CLRA. Rather, Plaintiff relies on the exception in Code of Civil Procedure section 395(b) for actions arising from the sale of personal goods. The court in Gallin did not analyze the exception under section 395(b), much less preclude its application in CLRA actions. (See People v. Anderson (2015) 232 Cal.App.4th 1259, 1275 [“A court's opinion is not authority for a proposition not considered in it”].) Thus, the exception in section 395(b) applies notwithstanding Gallin.     

CONCLUSION

            Defendant’s motion to transfer is DENIED.