Judge: Elaine Lu, Case: 24STCV15008, Date: 2025-02-18 Tentative Ruling

Case Number: 24STCV15008    Hearing Date: February 18, 2025    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

Background

            This is a putative wage-and-hour class action.  Plaintiff Jordan Herrera (“Plaintiff”) alleges that he and the putative class members are and were employed by Defendants CalSolar LLC and California Solar Innovators Inc. (jointly “Defendants”). Plaintiff alleges that Defendants violated various sections of the Labor Code, Industrial Welfare Commission wage orders, and the Business and Professions Code.

            On June 14, 2024, Plaintiff filed a class action and representative action.  The Complaint asserts nine causes of action for (1) unpaid overtime, (2) unpaid meal period premiums, unpaid minimum wages, (5) final wages not timely paid, (6) non-complaint wage statements, (7) unreimbursed business expenses, (8) civil penalties under the Private Attorney General Act (“PAGA”), and (9) unfair business practices.

            On November 12, 2024, Defendants filed the instant motion to transfer venue.  On January 16, 2025, Plaintiff filed an opposition.  On January 29, 2025, Defendants filed a reply.  On January 30, 2025, Plaintiff filed an objection to the evidence submitted with the reply.

            Prior to the commence of the hearing set for February 5, 2025, the Court distributed a written tentative ruling.  Due to the Court’s engagement in trial, the time for hearing the parties’ arguments was limited on February 5, 2025, and the parties stipulated to continue the hearing to February 18, 2025.

Improper Reply Evidence

Plaintiff objects to Defendants’ evidence submitted with the reply.

In general, for due process reasons, the moving party generally may not rely on additional evidence filed with its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)  Evidence filed for the first time in a reply may violate the opposing party’s due process rights if considered by the Court.  (Ibid.)  Thus, evidence and exhibits presented in support of a reply are not generally allowed.  (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.)

With the reply, Defendants include a supplemental declaration from Jordan Jones.  The supplemental declaration includes new evidence, such as where potential witnesses reside.  (See e.g. Supp. Jones Decl. ¶ 6.)  Defendants fail to provide any reason as to why they did not submit this evidence with the moving papers.  Nor is this evidence merely responsive to the arguments or evidence that Plaintiff submitted.  Because reply evidence is not generally permitted, the Court will not consider the improper reply evidence.[1]

Legal Standard

Plaintiff’s choice of venue is presumptively correct, and Defendant bears the burden of demonstrating that venue is not proper there. (Battaglia Enterprises, Inc. v. Superior Court of San Diego County (2013) 215 Cal.App.4th 309, 313-14.)  “It is the moving defendant's burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.” (Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1046.)  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.” (Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469, 39 Cal.Rptr.2d 787)

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Superior Court of Alameda County (1984) 37 Cal.3d 477, 482.)  As a general rule, “[i]t is well established that a defendant is entitled to have an action tried in the county of his or her residence unless the action falls within some exception to the general venue rule.”  (Id. at p.483.)

Pursuant to Code of Civil Procedure section 395(a), “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, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary.”  Although the section appears to be addressing actions sounding in contract, it has long been settled that it governs actions sounding in tort as well.  (See Mission Imports v. Superior Court of San Francisco (1982) 31 Cal.3d 921, 927-928.)  Per Code of Civil Procedure section 396b, on timely motion, the court must order a transfer of an action “whenever the court designated in the Complaint is not the proper Court.”  (Id.) 

If the transfer is ordered on the ground that the plaintiff filed in the “wrong court,” the plaintiff is responsible for paying the costs and fees of transferring the action to whichever county the court orders, within 30 days after service of notice of the transfer order.  If the plaintiff fails to do so within 5 days after service of notice of the court, any other interested party, whether named in the complaint or not, may pay such costs and fees in order to expedite the transfer.  If the fees and costs are not paid within 30 days, the action is subject to dismissal.  (See CCP § 399). 

Discussion

            Defendant contends that venue in Los Angeles County is improper, and the instant action must be transferred to San Joaquin County.

Los Angeles County and San Joaquin County are both Proper Venues

“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.) 
            “Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Superior Court of Alameda County (1984) 37 Cal.3d 477, 482.) Moreover, when “venue is proper in more than one county, a plaintiff may choose among the available options.”  (Crestwood Behavioral Health, Inc. v. Superior Court of Alameda County (2021) 60 Cal.App.5th 1069, 1075.)

With regard to venue, Plaintiff alleges that “[v]enue is proper in this Court because, upon information and belief, Defendants maintain offices, have agents, and/or transact business in the State of California, including the County of Los Angeles. The majority of the acts and omissions alleged herein relating to Plaintiff took place in the State of California, County of Los Angeles. Defendants employed Plaintiff within the State of California, County of Los Angeles.”  (Complaint ¶ 4.)  Further, the complaint asserts various Labor Code violations, a claim for civil penalties under PAGA, and a statutory claim for unfair business practices under Business and Profession Code section 17200 et seq.  Venue is proper where the alleged labor code violations occurred and where Defendants’ principal places of business are.  (CCP §§ 395, 395.5.)  In addition, because Plaintiff asserts a PAGA claim, “venue is proper in any county in which an aggrieved employee worked and Labor Code violations allegedly occurred.”  (Crestwood Behavioral Health, Inc., supra, 60 Cal.App.5th at p.1075.)

In conjunction with the moving papers, Defendants include Defense Counsel’s declaration and the declaration of Jordan Jones.  (Motion, Exhs. A-B.)  Defense Counsel states that he believes that Defendant California Solar Innovators, Inc. is doing business in San Joaquin County.  (Sodhi Decl. ¶ 2, [“Defendant CALIFORNIA SOLAR INNOVATORS, INC., a California corporation; and at all times mentioned herein, is believed to be a doing business in the San Joaquin County.”].)  The fact that Defense Counsel believes that Defendant California Solar Innovators, Inc. does business in San Joaquin County is not competent evidence that Defendant California Solar Innovators, Inc. does in fact do business in San Joaquin County. (See e.g., People v. Clark (2022) 81 Cal.App.5th 133, 142, Fn. 9 [“In general, a ‘declaration ... made on information and belief ... [does] not provide competent evidence of the facts stated therein.’”.)  Nor does Defense Counsel set forth any factual basis as to why he would have personal knowledge as to where Defendant California Solar Innovators, Inc. conducts its business.  Finally, even assuming Defense Counsel’s declaration is competent evidence that Defendant California Solar Innovators, Inc. does business in San Joaquin County, the mere fact that Defendant California Solar Innovators, Inc. does business in San Joaquin County does not mean that Defendant California Solar Innovators, Inc. does not do business in Los Angeles County or that Los Angeles County is an improper venue. 

Similarly, Jordan Jones’s declaration fails to set forth why Los Angeles County is an improper venue.  Jones states that “[t]he subject contract was signed in San Joaquin County. Defendants CALSOLAR, LLC, and CALIFORNIA SOLAR INNOVATORS, INC are Incorporated and at all times mentioned herein are doing business in the County of San Joaquin, State of California.”  (Jones Decl. ¶ 2.)  Jones further asserts that “[t]he principal place of business for Cal Solar LLC is in San Joaquin County.”  (Jones Decl. ¶ 3.)  

However, there is no indication of who Jones is or how Jones can establish where Defendants conduct business and have their respective principal places of business.  Rather, in his declaration, Jones incorrectly claims to be a defendant in this action.  (Jones Decl. ¶ 1.)  In the improper reply evidence, Jones claims to be “the agent for Defendant in this matter.”  (Supp. Jones Decl. ¶ 1.)  However, because there are two Defendants in this matter, it is unclear which – of the two named Defendants – Jones is an agent for.  Nor does Jones clarify what the scope of his agency is for the unspecified Defendant.  The only indication of who Jones is and his relationship with Defendants is that, in a written notice to the LWDA attached to the complaint, Jones appears to be the agent for service of process for Defendant CalSolar LLC.  (Complaint, Exh. 1.)  Thus, Defendants fail to provide any foundation as to how Jones can provide competent evidence as to where Defendants conduct business and have their respective principal places of business.

Even assuming that Jones’s declaration is competent evidence, Jones states only that Defendants both do business in San Joaquin County and that Defendant CalSolar LLC has its principal place of business in San Joaquin County.  (Jones Decl. ¶¶ 2-3.)  Though Jones states that the “subject contract” was entered into in San Joaquin County, (Jones Decl. ¶ 2), there is no subject contract alleged in the Complaint.  Presumably, Jones is referring to Plaintiff’s employment contract with Defendants.  However, there is no evidence of that.

The lack of evidence is telling.  There is no evidence establishing Defendant California Solar Innovators, Inc.’s principal place of business.  Further, there is no evidence indicating that Defendants did not conduct business in Los Angeles County as alleged in the Complaint.  (Complaint ¶ 4.)  Nor is there evidence disproving the allegations that the wrongful conduct – i.e., the Labor Code violations – occurred in Los Angeles County.  (Complaint ¶ 4.)   

At best, Defendants evidence establishes that San Joaquin County is a valid venue choice.  However, Defendants fail to establish that Los Angeles County is an incorrect venue.

In opposition, Plaintiff states that he worked for Defendants as a Forklift Operator from August 2023 through January 2024.  (Herrera Decl. ¶ 2.)  “During [his] employment, [Plaintiff] resided in Modesto, California. [Plaintiff’s] typical weekly routine was to meet [his] manager in Corcoran, California. From there, [they] would drive together to a central location near the worksites on [their] schedule for the week. For the vast majority of [Plaintiff’s] employment, this was in Harbor City, California, which is in Los Angeles, County, near Long Beach. [They] would lodge at a hotel in Harbor City and perform work at surrounding sites throughout the week. [Plaintiff] would return home in Modesto at the end of the workweek.”  (Herrera Decl. ¶ 3, [italics added].)  While in Los Angeles County, “Defendants did not compensate [Plaintiff] for all time worked for them. Defendants expected [Plaintiff] to arrive to work in full uniform and with all supplies necessary to perform [his] duties, including steel-toed boots, gloves, safety glasses, and hard hats. However, Defendants required [Plaintiff] to don [his] uniform and gather supplies prior to clocking in. Additionally, [Plaintiff] routinely missed, took late, or cut short [his] lunch breaks due to work demands, and [Plaintiff] almost always had to skip [his] second rest break. Defendants never paid [Plaintiff] an extra hour of pay when those meal and rest break violations occurred. In fact, [Plaintiff’s] time records always deducted a half-hour lunch whether or not [he] took a full lunch break. Also, [Plaintiff] regularly worked more than ten hours in a day, but Defendants never provided [him] with a second meal break. Lastly, Defendants did not reimburse [Plaintiff] for using [his] personal vehicle to retrieve supplies at the beginning of the week.”  (Herrera Decl. ¶ 5.)  Thus, Plaintiff’s declaration clearly establishes that he worked for Defendants while in Los Angeles County and suffered the alleged Labor Code violations – such as the failure to provide meal periods – while in Los Angeles County. 

Because the alleged Labor Code violations were suffered while Plaintiff was in Los Angeles County, Los Angeles County is a proper venue location.  (CCP §§ 395, 395.5; Crestwood Behavioral Health, Inc., supra, 60 Cal.App.5th at p.1075.)  Because San Joaquin County and Los Angeles County are both proper venues, Plaintiff is permitted to choose Los Angeles County.  (Crestwood Behavioral Health, Inc., supra, 60 Cal.App.5th at p.1075.)

Accordingly, Defendants’ motion to transfer venue must be DENIED.

Convenience of the Witnesses

In reply, Defendants contend that venue should be transferred to San Joaquin County for the convenience of the witnesses under Code of Civil Procedure section 397(c).  However, such an argument cannot be raised for the first time on reply.  “To withhold a point until the closing brief would deprive the [opposing part] of his [or her] opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.”  (High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 112, Fn. 2.) 

Moreover, even on the merits, Defendants’ request to transfer under Code of Civil Procedure section 397(c) must be denied.

On motion of any party, a judge may change the place of trial in an action or proceeding to promote the convenience of witnesses and the ends of justice.  (CCP § 397(c).)  The moving party has the burden of establishing these grounds for the transfer because the plaintiff's choice of venue is presumptively correct.  (Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401.)  CCP § 397 provides: “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.”

The moving party must sustain this burden of proof by a detailed declaration specifying the name of each witness, including the witnesses expected to testify for the opposing party, and the expected testimony of each.  (Juneau v. Juneau (1941) 45 Cal.App.2d 14, 15- 17; Stute v. Burinda (1981) 123 Cal.App.3d Supp. 11, 17.)  The declaration must show that each witness's testimony is material, necessary, and admissible.  (J.C. Millett Co. V. Latchford-Marble Glass Co. (1959) 167 Cal.App.2d 218, 225; Edwards v. Pierson (1957) 156 Cal.App.2d 72, 75; Harden v. Skinner & Hammond (1955) 130 Cal.App.2d 750, 755.)  It must also state why it would be inconvenient for these witnesses to appear in the court in which the action is pending but need not show that the witnesses reside in the proposed transferee county because the crucial factor is their convenience and not their residency.  (Stute, supra, 123 Cal.App.3d.Supp. at 17; Willingham v. Pecora (1941) 44 Cal.App.2d 289, 294.)  A judge may not consider the convenience of the parties in determining the motion.  (Wrin v. Ohlandt (1931) 213 Cal.158, 160.)

Here, even if the Court were to consider the improper reply evidence, Defendants’ evidence is insufficient to support a change of venue for the convenience of the witnesses under Code of Civil Procedure section 397(c).   Rather, Jones – an unspecified agent for one of the Defendants – claims that “[a]ll agents, employees, and witnesses to this action are located in San Joaquin County and the principal place of business for Cal Solar LLC is in San Joaquin County.”  (Supp. Jones Decl. ¶ 3.)  Jones further claims that “[a]ny and all other relevant witnesses, including the co-owner of the company, as well as the HR manager, are also located in San Joaquin County and work in the San Joaquin County office.”  (Supp. Jones Decl. ¶ 6.)  Defendants fail to identify who these witnesses may be, or their expected testimony as required for a motion to transfer venue under Code of Civil Procedure section 397(c).  (Juneau, supra, 45 Cal.App.2d at pp.15- 17; Stute, supra, 123 Cal.App.3d Supp. at p.17.) 

            Accordingly, Defendants’ request to transfer venue under Code of Civil Procedure section 397(c) must be DENIED.

CONCLUSION AND ORDER

Based on the foregoing, Defendants CalSolar LLC and California Solar Innovators Inc.’s motion to transfer venue is DENIED.

Defendants are ordered to download the instant signed order from the Court's website and to file proof of service of the instant order on all other parties within five (5) days.

DATED: February 18, 2025                                                   _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court