Judge: Helen Zukin, Case: 22SMCV00918, Date: 2022-12-09 Tentative Ruling
Case Number: 22SMCV00918 Hearing Date: December 9, 2022 Dept: 207
Background
Plaintiff Spencer Baumgarten (“Plaintiff”) brings this
action against Defendant Eric Icenogle (“Defendant”) stemming from Plaintiff’s
purchase of a restored Ford Bronco from Defendant. Plaintiff alleges causes of
action against Defendant for violation of Business & Professions Code §
17200 and violation of The Consumer Legal Remedies Act codified at Civil Code §
1750, et seq. Defendant brings this motion to change venue under Code of Civ.
Proc. § 396b(a), arguing venue of this action is only proper in Tuolumne County, California, not
Los Angeles. Defendant also seeks recovery of his fees and costs incurred in
bringing this motion to change venue. Plaintiff opposes Defendant’s motion.
Legal Standard
“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,
481.) “For venue purposes, actions are classified as local or transitory. To determine
whether an action is local or transitory, the court looks to the main relief sought.
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. at
482, fn.5.) 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.)
Code
Civ. Proc. § 395(a) provides in part “[e]xcept as otherwise provided by law . .
. 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. § 396a(b)provides in part for the transfer of an action:
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.
The burden
is on the moving party to establish that the venue selected by Plaintiff is improper.
And the moving party has the burden of “negating the propriety of venue as laid
on all possible grounds.” (Karson Industries, Inc. v. Superior Court (1969)
273 Cal.App.2d 7, 8-9.)
Code
Civ. Proc. § 395(b) provides in pertinent part that “in an action arising from an
offer or provision of goods, services, loans or extensions of credit intended primarily
for personal, family or household use, other than an obligation described in Section
1812.10 or Section 2984.4 of the Civil Code ... the superior court in the county
where the buyer or lessee in fact signed the contract, where the buyer or lessee
resided at the time the contract was entered into, or where the buyer or lessee
resides at the commencement of an action is the proper court for the trial of the
action.” (Fontaine v. Superior Court (2009) 175 Cal. App. 4th 830, 837.)
Analysis
1. Venue
Defendant argues venue in this
action is governed by Code Civ. Proc. § 395(a) and thus venue is proper in
Tuolumne County where he resides. Plaintiff argues venue is proper in Los
Angeles County under Code Civ. Proc. § 395(b). Defendant does not dispute venue
in Los Angeles County would be proper if section 395(b) applied to this action,
rather Defendant argues section 395(b) is inapplicable.
First, Defendant argues section
395(b) only applies to “Actions to enforce obligations” for goods or services and
because “Plaintiff, not Defendant, filed this action … this is not
an action” to enforce obligations for goods and services. (Reply at 2, 4
[emphasis in original].) Defendant cites to no authority endorsing such a narrow
interpretation of section 395(b). The Court notes nothing in the language of section
395(b) limits its effect to actions brought to enforce obligations. Defendant
cites Fontaine v. Superior Court as support for this claim, but nothing in Fontaine
suggests section 395(b) is limited to actions to enforce obligations. Indeed, Fontaine
held “whether the action is brought against a
consumer defendant or by a consumer plaintiff, the venue provisions of
section 395, subdivision (b) apply as long as the action arises from a consumer
transaction specified in the statute.” (Fontaine, supra, 175 Cal.App.4th at 838.)
Section 395(b) is a specific venue
rule that applies to “actions arising from an offer or provision of goods, services,
loans or extensions of credit intended primarily for personal, family or household
use,” and applies to any “consumer transaction as specified in the statute.” (Id.
at 839.) Defendant argues the transaction which forms the basis of this action
is not a consumer transaction under section 395(b). Defendant bases this
argument on the fact that “sales of vehicles are excluded from the Sales
division of the UCC” and the definition of the phrase “consumer goods” under
the Song-Beverly Consumer Warranty Act is limited to new products, not used
vehicles. (Reply at 3-4.) However, Plaintiff’s causes of action here do not
arise under the California Uniform Commercial Code or Song-Beverly Consumer
Warranty Act, and Defendant offers no authority or argument demonstrating the
Legislature intended to limit the application of section 395(b) to transactions
arising under the Uniform Commercial Code or Song-Beverly Consumer Warranty
Act.
While not stated directly,
Defendant appears to be arguing that because Plaintiff asserts a cause of
action under the Consumer Legal Remedies Act codified at Civil Code § 1750, et
seq., the venue provisions of the Act should apply. Specifically, Defendant
quotes the language of Civil Code § 1780(d) which provides an action brought
under the Act “may be commenced in the county in which the person against whom
it is brought resides, has his or her principal place of business, or is doing
business, or in the county where the transaction or any substantial portion
thereof occurred.” (Reply at 3.) As set forth above, venue is determined based on the complaint
on file at the time the motion to change venue is made. At the time Defendant
filed his motion, Plaintiff’s operative complaint was the First Amended
Complaint (“FAC”) filed on August 2, 2022. The FAC attaches a declaration from
Plaintiff’s counsel stating “Venue is proper in this courthouse [as] the
transaction took place in this jurisdiction. Thus, this County is the proper
place for the trial of this action.” (Barry Decl. at ¶3.) Defendant offers no
evidence to contradict this assertion. Defendant points to a Bill of Sale
attached to a prior version of Plaintiff’s Complaint which states at the top of
one page:
State of California
County: Tuolumne
(Ex. 1 to Complaint.) This alone
is insufficient to establish that no substantial portion of the subject
transaction took place in the County of Los Angeles. At most it appears to
suggest the Bill of Sale was drafted in Tuolumne County.
However, the Court notes this
lawsuit is what Courts term a “mixed action” in terms of venue. “A ‘mixed action’
is one where the plaintiff has alleged two or more causes of action, each of which
is governed by a different venue statute.” (Gallin v. Superior Court (1991)
230 Cal.App.3d 541, 544.) “Where the defendant is entitled to a change of venue
as to one cause of action, the entire action is transferred.” (Id.) The
California Supreme Court in Brown v. Superior Court (1984) 37 Cal.3d
477 announced a general exemption to this rule, finding that in mixed actions
involving claims brought under the Fair Employment and Housing Act, the
specific venue provisions of the Act controlled over the general venue rules
applicable to related causes of action arising from the same facts. However,
the Gallin Court determined the Brown exemption does not apply to
mixed claims brought under the Consumers Legal Remedies Act. (Gallin, supra,
230 Cal.App.3d at 544-546.)
Accordingly, Plaintiff cannot rely
on the venue provisions of Civil Code § 1780 to establish proper venue for his
claim under Business & Professions Code § 17200. Thus, Plaintiff must
establish a separate basis for venue on that claim or face transfer of the
entire action. Plaintiff’s only asserted basis for venue on this cause of
action is Code Civ. Proc. § 395(b). Defendant argues the FAC fails to allege “that
Plaintiff intended to use the ‘vehicle’ for ‘personal use’, ‘that this sale was
consummated as the result of an electronic transmission made by the Plaintiff’,
that Plaintiff entered into a ‘contract’ with Defendant, that Plaintiff
allegedly signed the ‘contract’ in Los Angeles County, or even that Defendant
resides in Los Angeles County at the time that he allegedly signed the ‘contract’
or commenced this action” as required to establish venue under Code Civ. Proc.
§ 395(b). (Reply at 4.) The Court agrees.
Section 395(b) by its express
terms applies only to “an action arising from an offer or provision of goods,
services, loans or extensions of credit intended primarily for personal, family
or household use” or to “an action arising from a transaction consummated as a
proximate result of … a telephone call or electronic transmission made by the
buyer or lessee in response to a solicitation by the seller.” (C.C.P. §
395(b).) Plaintiff’s FAC does not contain factual allegations showing either
option is met. The FAC does not allege Plaintiff purchased the subject vehicle
primarily for personal, family, or household use. Nor does it allege Plaintiff
made any telephone call or electronic transmission to Defendant which resulted
in the consummation of the transaction in response to a solicitation by the seller.
While the FAC claims Defendant advertised the vehicle on the internet, this
does not establish any telephonic or electronic transmission was made by
Plaintiff to consummate the sale in response to a solicitation by the sellor.
Even if Plaintiff could establish
this action properly satisfied one of these options, the FAC would still fall
short of establishing venue in Los Angeles for the claim. Venue under section
395(b) is proper only in the county where (1) Plaintiff signed the contract,
(2) Plaintiff resided at the time the contract was entered, or (3) Plaintiff
resided at the time of commencement of the action. (C.C.P. § 395(b).) The FAC does not offer any
allegations as to where Plaintiff signed the alleged contract or where he
resided either at the time the contract was signed or when he commenced this
action against Defendant. Accordingly, the Court finds Plaintiff has failed to
show venue is proper in the County of Los Angeles under Code Civ. Proc. §
395(b). Plaintiff provides no other alternative basis for venue in this county
for his claim under Business & Professions Code § 17200 and thus Defendant
is entitled to transfer the whole action to Tuolumne. Defendant’s motion to change venue to Tuolumne County is
GRANTED.
2. Attorney’s Fees
The court may in its discretion award reasonable expenses and
attorney fees in making a motion to transfer pursuant to Code of Civil
Procedure § 396b(b). Such 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.
Defendant
requests an award of $2,400 in attorney’s fees incurred in bringing this motion
to transfer, noting Defendant offered to stipulate to a change of venue which
was rejected by Plaintiff. (Trujillo Decl. at ¶¶ 5, 7.) The Court in its
discretion denies Defendant’s request for attorney’s fees. The record indicates
Plaintiff’s counsel had a legitimate and good faith belief venue was proper in
Los Angeles pursuant to the Consumers Legal
Remedies Act and made efforts to satisfy the venue requirements imposed by the
Act as codified at Civil Code § 1780. While the Court ultimately rejected
Plaintiff’s arguments as to venue under Code Civ. Proc. § 395(b), the Court
finds Plaintiff’s selection of venue was made in good faith.
Conclusion
Defendant’s motion to change venue of this action to Tuolumne County is GRANTED
and Defendant’s request for attorney’s fees is DENIED.