Judge: H. Jay Ford, III, Case: 22SMCV01227, Date: 2023-01-24 Tentative Ruling

Case Number: 22SMCV01227    Hearing Date: January 24, 2023    Dept: O

Case Name:  Gold Pacific Construction, Inc., et al. v. Reynolds, et al.

SUBJECT:               MOTION TO TRANSFER VENUE

MOVING PARTY:  Defendant Sean P. Reynolds and US Construction Law, APC

RESP. PARTY:        Plaintiff Gold Pacific Construction Inc.

TENTATIVE RULING

            Defendants Sean P. Reynolds and US Construction Law, APC’s Motion to Transfer Venue is GRANTED.  Defendants are to submit the proposed order.

I.  Motion is not brought pursuant to CCP §396b and is timely

“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.”  CCP §396b.

On timely motion, the court must order a transfer of an action “when the court designated in the complaint is not the proper court.”  CCP §§ 396b, 397(a) (emphasis added).  The strict timing requirements of CCP § 396b (transfer motion to be filed at time answer is due) do not affect a party's right to seek transfer under § 397 (transfer for failure to commence suit in proper court).  See Walt Disney Parks & Resorts U.S., Inc. v. Sup.Ct. (Galvan) (2018) 21 Cal.App.5th 872, 879-880.

Although CCP § 397 contains no express time limitation, a motion for change of venue based on convenience of witnesses must be made within a reasonable time after the answer is filed. What constitutes a “reasonable” time rests largely in the trial court's discretion.  See Cooney v. Cooney (1944) 25 Cal.2d 202, 208. 

Defendants are not moving to transfer venue pursuant to CCP §396b. As such, the deadline based on Defendants’ time to demur or answer is inapplicable.  Defendants are moving to transfer venue based on CCP §§395, 395.5 and 397.  See Notice of Motion, 2:1-2.  Plaintiff fails to demonstrate that the motion was not filed within a reasonable time.  Defendants were personally served on 9-7-22 and filed this motion to transfer on 12-7-22, only three months later. Defendants’ motion was filed within a reasonable time. 

II.  Change of Venue Law

            A.  Relevant Venue Statutes

“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. If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action.”  CCP §395(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:  (a) When the court designated in the complaint is not the proper court.”  CCP §377(a). 

            B.  Law governing selection of proper venue

            “The general rule is that venue is proper only in the county of the defendant's residence. It 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.”  Williams v. Superior Court for County of Contra Costa (2021) 71 Cal.App.5th 101, 108 (quoting Brown v. Sup.Ct. (C.C. Myers, Inc.) (1984) 37 Cal.3d 477, 488)(plaintiff’s allegation of physical ailment as a result of harassment claim based on emails did not qualify as “injury to person” under CCP §395(a); defendant therefore entitled to transfer of the action to her county of residence). 

“Thus, the right of a plaintiff to have an action tried in a county other than that of the defendant's residence is exceptional. If the plaintiff would claim such right he must bring himself within the exception.  Moreover, when the plaintiff contends that the case fits within an exception to the general rule that venue is proper in the county of defendant's residence, any ambiguities in the complaint must be construed against the plaintiff towards the end that the defendant will not be deprived of the right to a trial in the county of his or her residence.”  Id. at 109.

Venue must be proper as to all causes of action and defendants joined. If not, any defendant is entitled to seek a change of venue: “In cases with mixed causes of action, a motion for change of venue must be granted on the entire complaint if the defendant is entitled to a change of venue on any one cause of action.”  Brown v. Sup.Ct. (C.C. Myers, Inc.) (1984) 37 Cal.3d 477, 488.  Where the main relief sought is personal, the action is transitory. Where the main relief relates to rights in real property, the action is local.  Id.

III.  Defendants establish that venue is improper in LA County and Plaintiffs fail to cite to any venue provision making LA County the proper venue

As moving party, Defendants have the burden of demonstrating that the plaintiff's venue selection is not proper under any of the statutory grounds.  See Fontaine v. Supr. Ct. (2009) 175 Cal.App.4th 830, 836.  Defendants have the burden of “negating the propriety of venue as laid on all possible grounds”: i.e., it must show that the county selected by plaintiff was not the place of injury or contracting, etc.  See Karson Indus., Inc. v. Sup.Ct. (Triangle Auto Sales, Inc.) (1969) 273 Cal.App.2d 7, 8-9. 

A.  Venue under CCP §395.5 is improper

 “[I]t is well recognized that when a plaintiff brings an action against several defendants, both individual and corporate, in a county in which none of the defendants reside, an individual defendant has the right to change venue to the county of his or her residence. This is true even though the action was initially brought in a county where the corporate defendants may be sued under Code of Civil Procedure section 395.5. (citations omitted).  Therefore, Code of Civil Procedure section 395.5 does not determine venue in this case.”  Brown, supra, 37 Cal.3d at 482, fn 6.

Defendant Reynolds is an individual defendant who has been joined in an action with a corporate defendant, Defendant US Construction Law, APC.  Because of Defendant Reynolds’ status as an individual defendant, Plaintiff cannot venue this action based on CCP §395.5, which only allows a corporation to be sued where the contract was made or performed or where the obligation or liability arose.  Defendant Reynolds therefore negates the propriety of venue based on CCP §395.5 and the assertion that LA County was the location where USCL performed legal services. 

B.  Venue under CCP §395(a)’s “injury to person or property” provision improper

“Injury to property” under CCP §395(a) applies to “actions for injury to…property, caused by the wrongful act or negligence of another, where the cause of action arose from a ‘corporeal or physical’ injury to the person or property, and that it was not intended to include every invasion of personal and property rights.”  Mason v. Buck (1929) 99 Cal.App. 219, 221 (conversion does not qualify as an action for “injury to property”). 

Defendant argues the provision under CCP §395(a) for “injury to person or property” is inapplicable, because there is no physical injury alleged in this action.  Plaintiff argues the provision applies, because injury to personal property in the form of economic losses is alleged.

Plaintiffs fails to cite any authority to support their broad interpretation of “injury to property” under CCP §395(a).  Mason holds that such injury requires “corporeal or physical injury to the property.”  No such corporeal or physical injury to property is alleged. 

C.  Plaintiff’s contention that the action is a local action to LA County

Plaintiffs argue their claims in the underlying action involved a mechanic’s lien recorded against property located in LA County.  Plaintiffs argue this action is therefore local based on the mechanics’ lien lost in the underlying action.  Plaintiff provides no authority to support this interpretation of what qualifies as the main relief in a pending action.  The main relief in this action are monetary damages arising from Defendants’ alleged legal malpractice, not the mechanic’s lien itself. 

D.  Defendant Reynolds place of residence is San Diego County, which is the proper venue for this action

Defendant Reynolds resides in San Diego County.  See Dec. of S. Reynolds, ¶2.  Proper venue under CCP §395(a) is therefore San Diego County.  Defendants’ Motion to Transfer Venue is GRANTED.