Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendants State of California and Denis Bilaver 

 

RESPONDING PARTY: Plaintiff Cornell Kay 

 

BACKGROUND 

This action arises from an employment dispute.  Plaintiff Cornell Kay was employed by Defendant Platinum Security.  During his entire employment, he worked at Defendant California Department of Transportation (“Caltrans”) located at 703B Street, Marysville, California 95901.  (Compl. ¶27.)  He held the position of building supervisor/security guard supervisor and was responsible for supervising security staff, interacting with vendors who were providing services to the security systems, and overseeing compliance with security protocols.  (Compl. ¶28.)   

Plaintiff is 68 years old and an immigrant from Romania.  He alleges he was a target of persistent insults and discriminatory comments from Defendant Denis Bilaver and other Caltrans employees.  They would say: “you are a dirty Russian,” “go back to Russia,” “you are a stinky Russian,” “there is no place for you here,” “you stink,” “your food stinks,” “go join the war,” “it is time for you to retire and go back to Russia,” “why are you still here? you should retire.”  (Compl. ¶42.) 

Besides Defendants’ harassment and discrimination, Plaintiff also alleges Defendants Platinum Security and Farag engaged in other violations of employment law, including (1) failing to reimburse his business expenses, (2) failing to provide adequate wage statements, and (3) constructively discharging him for objecting to their allegedly unlawful practices.  (Compl. ¶3.)   

Ultimately, at Bilaver’s instructions, Plaintiff was walked out of the building and told not to return.  (Compl. ¶44.)  Platinum Security and its CEO Michel Farag sided with Bilaver, and told Plaintiff he could not return to his position at Caltrans.  (Compl. ¶45.)  Instead, Plaintiff was told he should apply for another position within Platinum Security, with no guarantee that his application will be accepted or that the pay or responsibilities will be in line with Plaintiff’s qualifications and experience.  (Compl. ¶46.) 

The operative complaint alleges claims for (1) discrimination in violation of FEHA, on the basis of age and national origin, (2) harassment based on age and national origin, (3) retaliation, (4) intentional infliction of emotional distress, (5) failure to reimburse business expenses, (6) breach of contract, (7) failure to provide accurate wage statements, (8) waiting time penalties, (9) financial elder abuse, (10) constructive discharge in violation of public policy and (11) failure to provide personnel file.   

This hearing is on Defendants the State of California (acting by and through Caltrans) and Bilaver’s motions to change or transfer venue.  Defendants argue that Yuba County is the proper venue because the pleaded allegations make clear that all the at-issue conduct occurred while Plaintiff was working out of offices located in Yuba County, not Los Angeles County.  Defendants also point out that most of the percipient witnesses (i.e., other Caltrans employees) are located in Yuba County.     

LEGAL STANDARD 

On timely motion, the court must order a transfer of an action “when the court designated in the complaint is not the proper court.” (Code Civ. Proc. §§ 397(a), 396b.)  A motion to transfer venue on grounds the designated court is not proper must be filed and served before or at the time of filing an answer, demurrer, or motion to strike. (Code Civ. Proc, § 396b.) “Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 482; Haurat v. Superior Court for Los Angeles County (1966) 241 Cal. App.2d 330, 337 (“Venue is determined on the basis of the complaint as it stands at the time the motion to change is made, and the plaintiff is not permitted to make a subsequent election of theories by proposed amendments thereto.”).)   

A plaintiff's choice of venue is “presumptively correct.” (Battaglia Enterprises, Inc. v. Sup. Ct. (2013) 215 Cal.App.4th 309, 314.)  Thus, “[t]he burden rests on the party seeking a change of venue to defeat the plaintiff's presumptively correct choice of court.” (Id.)  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. (Id.)  

As a general rule, “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.” (Code Civ. Proc. § 395(a).)  Section 395(a) states that “[e]xcept as otherwise provided by law and subject to the power of the court to transfer… 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.” (C.C.P., § 395(a) (emphasis added); see also, Monogram Co. v. Kingsley (1951) 38 Cal.2d 28, 29-30 (explaining a defendant is not entitled to have an action removed to the county of his residence unless it appears that none of the other defendants are residents of the county where the action is brought).)   

However, this “general rule” of venue has effect only when no other venue provision applies.  When there is a more specific venue statute, the general rule is subordinated. (Brown v. Superior Court, 37 Cal.3d at 483 (venue provisions of FEHA controlled over general venue provisions of Cal. Civ. Proc. 395 when causes of action under the act were brought along with other non-FEHA causes of action if the claims arose from the same facts).) 

Further, the court may,¿in its discretion,¿award reasonable expenses and attorney fees in making a motion to change venue pursuant to Code Civ. Proc. §¿396b(b).¿ Such an award is payable by the losing party’s attorney, not the party,¿and the¿court shall consider “(1) whether an offer to stipulate to change of venue was reasonably made and rejected; and (2) whether the motion or selection of venue was made in good faith given the facts and law for the party making the motion or selecting the venue knew or should have known.”  (Code Civ. Proc. §¿396b, subd. (b).) 

DISCUSSION 

FEHA’s Venue Provision 

Defendants contend that the FEHA’s special venue provision applies and mandates that this action be transferred to Yuba County.  The Court agrees.   

“The special provisions of the FEHA venue statute control in cases involving FEHA claims,” even if “joined with non-FEHA claims arising from the same facts.”  (Brown v. Superior Court (1984) 37 Cal.3d 477, 487.)  Here, Plaintiff’s non-FEHA claims against Defendants (for intentional infliction of emotional distress and failure to provide a personnel file), arise from the same core set of facts as his FEHA claims – alleged discrimination, harassment and retaliation against Plaintiff, culminating in his constructive discharge.  Thus, the FEHA venue statute governs the entire action and¿section 395¿does not apply.¿  

The FEHA venue statute provides in part: “An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice[.]”  (Government Code §12965(b).)  Only if the defendant is not found within any of these counties may the plaintiff then bring his action “within the county of the defendant’s residence or principal office.”  (Id.)     

Here, the unlawful conduct alleged against Defendants occurred in Yuba County.  It is the county where all the records relevant to the FEHA claim (to the extent they exist at all) are maintained.  (Bilaver Decl. ¶ 15.)  And it is the county where Plaintiff would have worked but for the alleged unlawful practice.  (Bilaver Decl. ¶¶ 4, 7.)   

Plaintiff’s Opposition relies heavily on the fact that two of the Defendants, Michel Farag and Platinum Security Inc. reside in Los Angeles County.  Yet, under Government Code §12965(b), the county of residence of the defendants is only relevant if no county exists that satisfies any of the three options under the Code.  Here, a county exists that qualifies under the other three options.  (Cf. Schutten v. Cal. State Univ., 2022 Cal. Super. LEXIS 2136 at *3 (section 12965(c)(3) only provides for venue “within the county of the defendant's residence¿or principal office” if the defendant cannot be found within the counties where the unlawful practice allegedly occurred, where the relevant records are found, or where the plaintiff would have remained working.)  

Ford Motor Credit Co. v Superior Court¿(1996) 50 Cal.App.4th 306 is instructive.  There, two former employees brought an action against a company and two of its supervisory employees for racial discrimination, hostile work environment and retaliation in violation of FEHA.  The particular acts set forth in plaintiffs’ complaint all occurred in Sacramento County; however, plaintiffs filed their complaint in Los Angeles County, where they resided at that time.  Defendants filed a motion for change of venue from Los Angeles County to Sacramento County, which the trial court denied.  Defendants then filed an action for a peremptory writ of mandate, contending that the trial court abused its discretion in denying the motion for change of venue. The appellate court granted the writ and directed the trial court to vacate its previous order denying the motion for change of venue, and to enter a new order transferring the case to Sacramento County.  The appellate court found that venue was mandatory in Sacramento County under FEHA, Gov't Code § 12965(b), because the unlawful practices were alleged to have been committed in Sacramento County, and the records relevant to the practice were maintained there. (Id. at 310.)    

Plaintiff does not dispute that FEHA’s special venue provision applies, instead of the general venue provisions in §395.  Plaintiff, however, argues that FEHA’s special venue provision “permit[s] venue in a county which plaintiffs deem the most appropriate and convenient.”  But that is not what FEHA’s special venue provision says.  Plaintiff makes no attempt to dispute, and therefore concedes, that Yuba county is where the discrimination occurred, where any records relating to the alleged discrimination (to the extent they exist at all) would be located, and where he would have worked absent the discriminatory conduct.   

Plaintiff’s reliance on Brown v Superior Court,¿is misplaced.  The case actually supports Defendants’ position.  In Brown, the plaintiffs had chosen a venue that was in accordance with Government Code § 12965(b) by filing in Alameda County, where the unlawful practices were alleged to have taken place.  (37 Cal.3d at 480, 489.)  It was actually the defendants who attempted to transfer venue to Sacramento County, where the individual defendants lived, and the corporate defendants had their principal places of business.  (Id. at 481.)  In vacating the lower court’s decision to grant the defendants’ motion to change venue, the Court held that the county in which the discriminatory practices were allegedly committed was the proper venue under the FEHA venue statute, not the residence of the defendants.  (Id. at 489.)     

Government Code § 955.2 

Defendants also argue that Gov. Code § 955.2’s special venue provision applies and mandates that this action be transferred to Yuba County.  Plaintiff fails to address Defendants’ argument regarding Gov. Code § 955.2.  The Court agrees with Defendant. 

Gov. Code § 955.2 states that “[n]otwithstanding any other provision of law, where the State is named as a defendant in any action or proceeding for death or injury to person or personal property and the injury or the injury causing death occurred within this State, the proper court for the trial of the action is a court of competent jurisdiction in the county where the injury occurred or where the injury causing death occurred. The court may, on motion, change the place of the trial in the same manner and under the same circumstances as the place of trial may be changed where an action is between private parties." 

The terms “injury to person” or “injury to personal property” are not defined in Gov. Code § 955.2.  And the parties have not cited the Court to any cases that have defined the terms in the context of Gov. Code § 955.2.  In the context of Code Civ. Proc. § 1283.1, one appellate court has held that a FEHA sex harassment claim is considered an “injury to … a person”. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 1004, disapproved on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644, 664.)  The court defined injury to person as injury that “impairs the well-being or the mental or physical health of the victim.”  (Id. at 1005.)     

The Court finds that the conduct alleged against Defendants here, implicate Plaintiff’s mental or physical health and therefore constitute an injury to a person.  Plaintiff alleges that as a result of the discrimination, Plaintiff “has suffered humiliation, mental anguish, and emotional and physical distress and has been injured in mind and body as follows: anxiety, stress, insomnia and other maladies.”  (Compl. ¶54; see also ¶¶ 68, 78, 86.)  Accordingly, because Plaintiff has alleged injury to person, the Court concludes § 955.2 applies, and the proper venue is where the injury occurred, which is Yuba County, not Los Angeles County.  (See State of California v. Superior Court (Vincent) (1965) 238 Cal.App.2d 691, 695; State of California v. Superior Court (Fuller) (1967) 252 Cal.App.2d 637, 643.)   

Because the Court concludes Yuba County is the proper venue for the claims against Defendants, the Court does not consider Defendants’ motion to transfer the case to Yuba County for the convenience of witnesses and to promote the ends of justice.  (See Code Civ. Proc. § 397(c).) 

Sanctions 

Lastly, the Court considers Defendants’ request for attorneys’ fees and costs.  Defendants seek sanctions in the amount of $1,705.00, representing 7.75 hours at an hourly rate of $220.  The Court concludes sanctions are warranted here, and the amount of sanctions sought is reasonable.   

Pursuant to Code Civ. Proc. 396b, the court has discretion to order sanctions to be awarded to the prevailing party in a motion to transfer.  In determining whether sanctions should be imposed, the court shall take into consideration “(1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known.  As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party.”  (Code Civ. Proc. §¿396b, subd. (b).)  

During meet and confers, Plaintiff’s counsel relied on the general venue rule that “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”.  (12/28/2022 Email from Bronski to Balekjian.)  But counsel should have known that the general rule does not apply when a more specific venue provision applies, particularly when defense counsel cited FEHA’s more specific venue provision in his email.  (12/23/2022 Email from Balekjian to Bronski).  The Court concludes, therefore, that an offer to stipulate to change of venue was reasonably made but not reasonably rejected, and Plaintiff should have known, based on basic research, that the law did not support venue in Los Angeles County.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendants’ motion to transfer venue to Yuba County and awards sanctions in the amount of $1,705 to be paid by Plaintiff’s counsel.   

 

IT IS SO ORDERED. 

 

DATED: March 1, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court