Judge: Deirdre Hill, Case: 22TRCV00297, Date: 2022-09-07 Tentative Ruling

Case Number: 22TRCV00297    Hearing Date: September 7, 2022    Dept: M

Hearing Date:              September 7, 2022     

Moving Parties:          Defendants Martini Madness, LLC, Lars Viklund, and Kelly Viklund

Responding Party:      Plaintiff Steven Amador

Motion to Transfer Action

            The court considered the moving, opposition, and reply papers. 

RULING

            Motion to Transfer Action is DENIED.

BACKGROUND

On April 20, 2022, plaintiff Steven Amador filed his Complaint for damages against defendants Martini Madness, LLC, Lars Viklund, Kelly Viklund, and Does 1 through 50, inclusive, alleging causes of action for: (1) retaliation in violation of FEHA; (2) failure to prevent retaliation in violation of FEHA; (3) retaliation in violation of Labor Code § 6310; (4) retaliation in violation of Labor Code § 1102.5; (5) wrongful termination in violation of public policy; (6) failure to provide required meal periods pursuant to Labor Code §§ 226.7, 510, 512, 1194, 1197 and IWC Wage Orders; (7) failure to provide required rest periods pursuant to Labor Code §§ 226.7, 512 and IWC Wage Orders; (8) failure to pay overtime wages pursuant to Labor Code §§ 510, 1194, 1198 and IWC Wage Orders; (9) unfair and unlawful business practices pursuant to Bus. § Prof. Code §§ 17200 et seq.; (10) failure to reimburse necessary expenditures pursuant to Cal. Lab. Code. § 2802; (11) failure to furnish accurate, itemized wage states pursuant to Labor Code § 226 and IWC Wage Orders; (12) failure to maintain required records pursuant to Labor Code §§ 226, 1174 and IWC Wage Orders; (13) failure to pay all wages due to discharged and quitting employees pursuant to Labor Code §§ 201, 202, and 203; and (14) failure to timely pay wages during employment pursuant to Labor Code § 204. All alleged causes of action are against all defendants as plaintiff argues Martini Madness, LLC is an alter ego of the other defendants.

On June 22, 2022, defendants filed their Answer, which included both a general denial to each and every allegation contained in the Complaint and various affirmative defenses.

LEGAL AUTHORITY

“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. …” CCP § 395, subd. (a). “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.” CCP § 395.5.

“The court may, on motion, change the place of trial in the following cases: … (c) When the convenience of witnesses and the ends of justice would be promoted by the change.” CCP § 397, subd. (c). However, “[i]t is well settled that a motion for change of venue grounded upon the convenience of witnesses rests largely in the discretion of the trial court….” Wrin v. Ohlandt (1931) 213 Cal. 158, 159.  When it comes to a change of venue motion under CCP § 397, subdivision (c), “the burden [of proof] rests on the party moving for transfer to establish grounds for change of venue, on the theory the plaintiff lays the venue and it is presumptively correct.” Pesses v. Superior Court (1980) 107 Cal.App.3d 117, 124.

“There is no time fixed by statute when an action may be transferred for trial because of convenience of witnesses or to promote justice.  The courts have said that it must be made within a reasonable time after the case is at issue on the facts, the determination of which rests largely in the discretion of the trial court.” Cooney v. Cooney (1944) 25 Cal.2d 202, 208.

“While a motion made under this section is addressed to the discretion of the trial court, that discretion is not unfettered.” Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401. Abuse of discretion can happen in both directions. On the one hand, “[c]onvenience of witnesses is shown by the fact that the residence of all the witnesses is in the county to which the transfer of the cause is requested….Where there is a showing that the convenience of witnesses and the ends of justice will be promoted by the change and there is absolutely no showing whatever to the contrary, a denial of the motion to change venue is an abuse of discretion, there being no conflict of evidence to sustain the decision of the trial court.” Richfield Hotel Management, Inc. v. Superior Court (1994) 22 Cal.App.4th 222, 227 (quoting Pearson v. Superior Court (1962) 199 Cal.App.2d 69, 77–78). On the other hand, “[t]he affidavits in support of the motion for change of venue [pursuant to CCP § 397, subdivision (c)] must set forth the names of the witnesses, the nature of the testimony expected from each, and the reasons why the attendance of each would be inconvenient.”  Peiser v. Mettler (1958) 50 Cal.2d 594, 607. “[E]xcept under limited circumstances, the court may not consider the convenience of the parties or of their employees in passing upon the motion.” Lieberman, supra, at 401.

In a prior case with plaintiffs who filed in Los Angeles County and defendants who moved the court to transfer venue to Riverside County based on CCP § 397, subdivision (c), the Court of Appeal noted that “it can hardly be said as a matter of law that there has been an abuse of discretion on the part of the trial court in denying a motion for change of venue on the ground of convenience of witnesses where the affidavits in support of said motion merely set forth two hours’ travel time and the loss of at least one business day for both trial and travel time.” Pacific Coast Title Ins. Co. v. Land Title Ins. Co. (1950) 97 Cal.App.2d 829, 833.

DISCUSSION

Defendants request an order transferring the action to the Palm Springs Branch of Riverside County. Defendants principally argue: (1) that even if venue is proper in Los Angeles County, it would also be proper in Riverside County because defendant Martini Madness has the majority of its business occurring in Palm Springs and defendants Lars and Kelly Viklund maintain a residence in Palm Springs; (2) that the court has discretion to transfer the venue to Riverside County pursuant to CCP § 397(c); (3) that “[t]he ends of justice would be promoted by this transfer because [p]laintiff has already identified at least two witnesses for whom it would be inconvenient to travel to Los Angeles County to testify at trial,” Mot., p. 4; and (4) that “[a]dditional percipient witnesses are likely to include [p]laintiff’s former co-workers who also reside and/or work in the Palm Springs area,” Id. Defendants include: (1) declarations from defendants Lars and Kelly Viklund, who aver that they live part-time in Palm Springs and who signed the declarations in Manhattan Beach, which is in Los Angeles County; (2) a declaration from Laurie Ochoa, who avers that she is currently an employee of defendant Martini Madness, LLC and lives in Desert Hot Springs; and (3) a declaration Laura Slipak, who is currently employed at 339 S. Berlardo Road, Palm Springs (but does not identify who her current employer is) and lives in Palm Springs.

Plaintiff opposes the motion, arguing: (1) the burden of proof for this motion is on defendants, who are the moving party; (2) Los Angeles is a proper venue for this action because all defendants primarily reside in Los Angeles County; (3) the witnesses could attend the hearings remotely pursuant to CCP § 367.75, and thus there is no inconvenience to them; (4) the ends of justice would not be met by moving the action; and (5) that defendants did not move to change venue within a reasonable time. Plaintiff only submits his own declaration, averring that defendants Lars and Kelly Viklund primarily live together in Manhattan Beach and that they rarely showed up in person at their Palm Springs hotel locations. (Decl. Amador, ¶¶ 3–5.)

Defendants reply, arguing: (1) that they have met their burden of proof showing that transferring the case to Palm Springs would promote the convenience of witnesses and the ends of justice; (2) that Palm Springs is also a proper venue for the case; and (3) plaintiff has not offered evidence to suggest that it would be inconvenient for the case to be tried in Palm Springs.

Upon considering all of the filings and the law, the court concludes as a matter of law that the defendants have not met their burden of proof for a change of venue pursuant to CCP § 397, subdivision (c). The court finds sufficient evidence to conclude that venue would be proper in both Los Angeles County and Riverside County. Specifically, it does appear that defendants Lars and Kelly Viklund both live primarily in Los Angeles County and part-time in Riverside County, and that defendant Martini Madness, LLC both holds its principal address at 21515 Hawthorne Boulevard, Torrance (which is part of Los Angeles County) and principally operates its business in Palm Springs. That is sufficient to have venue be proper in either location. CCP §§ 395, 395.5. The court also finds that the period of time in bringing the motion to transfer, which is less than two months from the time all defendants filed their answer, is a reasonable period of time. However, the statute cited for the authority to transfer venue is for the convenience of the witnesses and the ends of justice, and the court cannot consider the convenience of a party’s employees. CCP § 397, subd. (c); Lieberman, supra, at 401. The only witnesses cited in this matter are currently (or, possibly in the case of Laura Slipak, were at the time the allegations occurred) defendant Martini Madness, LLC’s employees. Moreover, those witnesses submitted declarations on behalf of defendant Martini Madness, LLC –– not on behalf of plaintiff. Defendants’ attempts to portray these witnesses as plaintiff’s witnesses is not accurate, and the only other witnesses referred to by defendants are plaintiff’s former co-workers, who presumably also currently work for Martini Madness, LLC or worked for the company at the time the allegations occurred. As the proof defendant provides cannot be considered for a transfer of venue under this statute, and as defendant has not provided any other evidence that the court can consider, it would be an abuse of discretion for the court to find that defendant meets its burden of proof here. Moreover, even if the court were to consider the evidence, it is not clear to the court that the alleged inconvenience would be sufficient to meet the burden or that a transfer would benefit the ends of justice. Pacific Coast, supra, at 833.

Accordingly, defendants’ Motion to Transfer Action is DENIED.