Judge Donald F. Gaffney, Case Frongello v. Kozich 2022-08-31 Tentative Ruling

Judge: Donald F. Gaffney, Case: Frongello v. Kozich, Date: 2022-08-31 Tentative Ruling

TENTATIVE RULING

Motion for Change of Venue

Defendants The Civil Attorneys Group, PC and Legis Law, PC move to transfer venue in the instant action to the Superior Court of California, County of San Bernardino for the San Bernardino District, Civil Division. Defendant S. David Kozich joins in Moving Defendant’s motion and requests the same relief. For the following reasons, the motion for change of venue is DENIED.

Under sections 392, 393, 394, and 395, a plaintiff may file an action or proceeding in various locations, depending on the classification of the action and the classification of the parties. (Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824.) “Where there are multiple parties and causes of action, venue may be proper in more than one county.” (Id.)

Code of Civil Procedure section 395(a), provides, in pertinent part: “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. ... Subject to subdivision (b)[2], if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation …. ” (Code Civ. Proc., § 395(a).)

When the defendant is an individual, the county “where the obligation is to be performed” within the meaning of section 395(a) above, means the location where the obligation is incurred, unless the contract specifically states otherwise in writing. (See Code Civ. Proc., § 395(a); Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1045, 047 [for venue to be proper at the place of performance, the contract must specifically and expressly state the geographic location where the payment or other performance is due, and this may not be shown by implication or parol evidence; absent such an express provision, venue is proper only where the contract was entered into or at defendant’s residence].)

Where the defendant is a corporation, however, the defendant “may be sued in the county where the contract is made or is to be performed,” without the need for a special provision specifying the place for performance, “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 Civ. Proc., § 395.5.)

“Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.]” (Dow AgroSciences LLC v. Superior Court (2017) 16 Cal.App.5th 1067, 1076 [citation omitted].) Here, the Complaint alleges causes of action for breach of fiduciary duty, financial elder abuse, legal malpractice, fraud, conversion, and civil conspiracy against multiple defendants. (ROA No. 2.)

Courts look to the “major” or “main” relief sought in the complaint to determine whether an action is “local” or “transitory” or “mixed.” (Neet v. Holmes (1942) 19 Cal.2d 605, 610; Standard Brands of California v. Bryce (1934) 1 Cal.2d 718, 720; see also Brown, 37 Cal.3d at 482, fn. 5.) “The question of the transitory or local character of the causes of action must be determined from the allegations of the complaint on file at the time the motion [for change of venue] was made and from the nature of the judgment which might be rendered thereon, assuming the truth of the allegations.” (Neet v. Holmes, 19 Cal.2d at 607.)

Transitory actions are those in which the claim may have arisen anywhere. They are governed by the general rules of venue set forth in section 395-that venue is proper “where the defendants or some of them reside ....” (Code Civ. Proc., § 395(a).) Local actions are those dealing with certain real property disputes, and “the county where the real property that is the subject of the action, or some part thereof, is situated, is the proper court for ... trial.” (Code Civ. Proc., § 392(a).) Mixed actions “do not fit neatly in either category.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 3:460.)

The Complaint’s allegations show that Plaintiffs’ claims are properly classified as transitory. The first and third causes of action pertain to Plaintiff Joyce Karen Frongello’s attorney-client relationship with Equity Law Group. The second, fourth, fifth, and sixth causes of action allege Defendants stole Plaintiffs’ check and made false representations. Because the main relief sought could have arisen anywhere, venue is governed by section 395(a), and is proper in the county where defendants or any of them reside, where the contractual obligation is to be performed, or where the contract was entered into. Plaintiffs had the option of filing the action in Orange County, where Moving Defendants The Civil Attorneys Group, PC and Legis Law, PC are situated (Kozich Decl. ¶¶ 15-16), in Los Angeles County where Defendant Shoreline Sales, LLC is situated (Kozich Decl. ¶ 13), or in San Bernardino County where Defendants S. David Kozich, Equity Law Group, Eyad Yaser Abdeljawad, Bridgepoint Law Group APC, and Bryeen Dean Bradfield reside or are situated (Kozich Decl. ¶¶ 8-12).

“When a defendant who resides in the county in which an action is brought is a necessary and proper party defendant it is immaterial that another and the principal defendant resides in another county ... [and] a plaintiff who has brought his action in the proper county will not be compelled to go elsewhere merely because all of the defendants prefer it.” (Monogram Co. v. Kingsley (1951) 38 Cal.2d 28, 30.) Although Moving Defendants contend that they are not proper parties, the court has not made a determination on this issue. The motion for change of venue is denied.

The court notes that it has discretion to transfer the case to any other county “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change,” even if plaintiff files the complaint in the “proper” county. (Code Civ. Proc., § 397(c).) However, a “motion ... on the ground of the convenience of witnesses will not be entertained when the defendant has not filed an answer [citation] for the obvious reason that until the issues are joined the court cannot determine what testimony will be material. [Citations.]” (Pearson v. Superior Court (1962) 199 Cal.App.2d 69, 75; see, e.g., Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1665.) The court’s ruling does not prevent Defendants from moving for change of venue under the discretionary provisions of section 397(c) when an answer is filed.

Moving Defendants’ request for sanctions is denied.

Plaintiffs to give notice.