Judge: Gary Y. Tanaka, Case: 21TRCV00601, Date: 2022-07-28 Tentative Ruling

Case Number: 21TRCV00601    Hearing Date: July 28, 2022    Dept: B

PROCEEDINGS

Bank of America, N.A. v. Cary N. Pollack, et al.

21TRCV00601

1. Bank of America, N.A.’s Motion to Transfer Venue    

    

   TENTATIVE RULING

    

               Bank of America, N.A.’s Motion to Transfer Venue. The Court declines to rule upon Plaintiff’s motion because Plaintiff failed to give proper notice of the hearing date. In addition, CCP § 396b(a) only specifically provides for a defendant to move to transfer venue.

    

               The Court on its own motion grants the Court’s own motion to transfer venue. CCP § 396a(b) provides authority for the Court to transfer venue on its own motion.

    

               Background

    

               Plaintiff filed the Complaint on August 17, 2021. Plaintiff alleges the following facts.  Defendant failed to pay the balance owed and due on a credit card account maintained with FIA Card Services, N.A., the predecessor of Plaintiff.

    

               Motion to Transfer Venue

    

               Code Civ. Proc., § 395(a) states, in relevant 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.”

    

               Code Civ. Proc., § 396a(b) states: “If it appears from the complaint or affidavit, or otherwise, that the superior court or court location where the action or proceeding is commenced is not the proper court or court location for the trial, the court where the action or proceeding is commenced, or a judge thereof, shall, whenever that fact appears, transfer it to the proper court or court location, on its own motion, or on motion of the defendant, unless the defendant consents in writing, or in open court (consent in open court being entered in the minutes of the court), to the keeping of the action or proceeding in the court or court location where commenced. If that consent is given, the action or proceeding may continue in the court or court location where commenced. Notwithstanding Section 1801.1 and subdivision (f) of Section 2983.7 of the Civil Code, that consent may be given by a defendant who is represented by counsel at the time the consent is given, and if an action or proceeding is subject to subdivision (b) of Section 395 or is for an unlawful detainer, that consent may only be given by a defendant who is represented by counsel at the time the consent is given.”

    

               Code Civ. Proc., § 396b(a) states: “Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the 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.”

    

               Code Civ. Proc., § 397 states, in relevant part: “The court may, on motion, change the place of trial in the following cases: (a) When the court designated in the complaint is not the proper court.”

    

               Facts from matters to which the Court may properly take judicial notice show that the action was not filed in the proper venue.  Defendants reside in Ventura County.  (Decl., Benjamin Mettias, ¶ 5.)

    

               Therefore, the Court, on its own motion, grants the motion to transfer venue to Ventura County.

    

               Plaintiff is ordered to give notice of this ruling.