Judge: H. Jay Ford, III, Case: 24SMCV02667, Date: 2024-10-22 Tentative Ruling

Case Number: 24SMCV02667    Hearing Date: October 22, 2024    Dept: O

 Case Name:  Navarrete v. Smith, et al.

SUBJECT:                 MOTION FOR CHANGE OF VENUE

MOVING PARTY:   Defendant Robert Joseph Smith

RESP. PARTY:         Plaintiff Mauricio Portan Navarrete

TENTATIVE RULING

            Defendant Robert Joseph Smith’s Motion for Change of Venue is GRANTED.  Defendant is a permanent resident of Ventura County, and the accident at issue allegedly took place in Ventura County according to the Complaint. The Court orders the venue in this matter to be transferred to the Superior Court of California-County of Ventura pursuant to CCP § 396b. The Court orders Plaintiff to pay any transfer fees and costs pursuant to CCP § 399. 

REASONING

            “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.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 483; see Maxwell v. Murray (1961) 190 Cal.App.2d 440, 442 [“The general rule is that a defendant is entitled to have actions tried in the county of his residence. The right of the plaintiff to have the action tried elsewhere is the exceptional right, and must find its justification in the terms of some statute. It is the duty of a plaintiff to bring himself within some exception if he can—otherwise, the defendant's right is to have the case tried in the county of his residence.”].)

            “[T]he defendant is entitled to have a negligence action tried either in the county of his residence or the county where the tort occurred [citations], unless, under the authority of section 396b of the Code of Civil Procedure, the plaintiff can show that both the convenience of witnesses and the ends of justice will be served by retention of the action in the county where commenced.” (Maxwell, supra, 190 Cal.App.2d at p. 443.)

            Code of Civil Procedure Section 395(a) provides in relevant part:

(a) 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.

(Code Civ. Proc., § 395, subd. (a).)

Code of Civil Procedure Section 396a(b) provides in relevant part:

(b) 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.

(Code Civ. Proc., § 396a, subd. (b).)

Code of Civil Procedure Section 397 provides in relevant part, "[t]he 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.” (Code Civ. Proc., § 397, subd. (a).)

Code of Civil Procedure Section 396b(a) provides in relevant part:

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., § 396b, subd. (a).)

“If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expenses and attorney's fees awarded to the defendant pursuant to Section 396b, shall be paid by the plaintiff before the transfer is made.” (Code Civ. Proc., § 399, subd. (a).)

Following denial of a motion to transfer under Code of Civil Procedure section 396b, unless otherwise ordered, 30 calendar days are deemed granted defendant to move to strike, demur, or otherwise plead if the defendant has not previously filed a response. If a motion to transfer is granted, 30 calendar days are deemed granted from the date the receiving court sends notice of receipt of the case and its new case number.

(Cal. Rules of Court, Rule 3.1326.)

            Defendant Robert Joseph Smith (“Smith”) moves for change of venue to the Superior Court of California, County of Ventura pursuant to CCP § 396b arguing Smith resides in Ventura County, and according to the complaint, the alleged negligent conduct occurred in the County of Ventura. (Nestler Decl., ¶ 3; Smith Decl., ¶¶ 3–6; Compl., ¶¶ 2, 8.) Smith first responsive pleading to the complaint is this motion to transfer venue, filed on 8-2-24, within 30 days of receiving personal service of the Complaint on 7-15-24, thus the motion is timely filed pursuant to CCP § 396b. (See 7-15-24 Proof of Personal Service.)

            Plaintiff Mauricio Portan Navarrete (“Navarrete”) argues that Smith is moving to change the venue based on the “convenience of witnesses and the ends of justice” pursuant to CCP § 397(c), however, nowhere in the Smith’s moving papers does Smith mention or refer to this statute provision for change of venue. Smith is clearly moving for change of venue based on CCP § 396b through expressly stating as such in his motion, thus Smith’s motion is procedurally correct.

Under a CCP § 397(c) change of venue motion for convenience of the witness the answer needs to be filed prior to the motion to change venue, and evidence needs to be provided to show witness convenience in one forum over the other. (See Code Civ. Proc. § 397, subd. (c); see also Peiser v. Mettler (1958) 50 Cal.2d 594, 607 [“The affidavits in support of the motion for change of venue on this ground [of witness inconvenience] must set forth the names of the witnesses, the nature of the testimony expected from each, and the reasons why the attendance of each would be inconvenient”].) However, as stated above, Smith did not bring his change of venue motion under CCP § 397(c), so these affidavits in support of the motion are unnecessary.

In addition, Navarrete has not provided any evidence that LA County will be more convenient for witnesses, nor any other argument related to whether the case is proper in LA County, other than a declaration, that the Court cannot take judicial notice to, regarding an alleged website which notified Navarrete’s counsel that Santa Monica is the correct courthouse for the zip code where the incident happened. (Arenas Decl., ¶ 2; Ex. B.) Additionally, Navarette did not supply a copy of the Traffic Collision Report as declared by Counsel Roberts. (See Roberts Decl., ¶ 2 [exhibit A is not attached to the declaration].)