Judge: Helen Zukin, Case: 22STCV16879, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV16879    Hearing Date: February 8, 2023    Dept: 207

Background

Plaintiffs Dennis Brokaw and Bonnie Brokaw (“Plaintiffs”) bring this action against Defendant Morey & Upton, LLP (“Defendant”) and others, claiming Defendant previously represented Plaintiffs in a personal injury action and persisted in interfering with Plaintiffs’ case after the termination of their representation. Plaintiffs have separately filed an action for malpractice against Defendant concerning the adequacy of Defendant’s representation of Plaintiffs in the personal injury action. The instant matter instead concerns actions taken by Defendant and others after Defendant stopped representing them in the personal injury action. Defendant moves to transfer venue in this matter to Orange County pursuant to Code Civ. Proc. § 397(c). Plaintiff opposes the motion, and Defendant represents the motion is unopposed by the other Defendants in this case. (Moura Decl. at ¶5.)

Legal Standard

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. (Cal. Code Civ. Proc. § 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.)¿

¿

The moving party must sustain this burden of proof by a detailed declaration specifying the name of each witness (Juneau v. Juneau¿(1941) 45 Cal.App.2d 14, 15- 17), including the witnesses expected to testify for the opposing party and the expected testimony of each.¿ (Stute v.¿Burinda¿(1981) 123 Cal.App.3d Supp. 11, 17.)¿ The declaration must show that each witness's testimony is material (J.C. Millett Co. V. Latchford-Marble Glass Co.¿(1959) 167 Cal.App.2d 218, 225), necessary (Edwards v. Pierson¿(1957) 156 Cal.App.2d 72, 75), and admissible evidence (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 (Stute v.¿Burinda, supra, 123 Cal.App.3d Supp. at 17), but need not show that the¿witnesses reside in the proposed transferee county, because the crucial factor is their convenience and not their residency.¿ (Willingham v. Pecora¿(1941) 44 Cal.App.2d 289, 294.)¿¿To sum up, “[w]hen a motion for change of venue is made. . .on the grounds that the convenience of witnesses and the ends of justice would be promoted by the changes, the supporting declarations must show (1) the name of each witness, (2) the expected testimony of each witness, and (3) facts showing why the attendance of said witnesses at trial will be inconvenient and why the ends of justice would be served by a transfer” (Stute, supra, 123 Cal.App.3d Supp. 11, 17.)

Even where venue is proper in the original court, if the convenience of the witnesses and the interests of justice would be enhanced by the transfer, it may be an abuse of the court’s discretion to deny the requested transfer. (Seybert v. Imperial County (1956) 139 Cal.App.2d 221, 230 [holding it may be an abuse of discretion to deny a motion to transfer venue to the county where the accident occurred and where the non-party witnesses to the accident reside in the county where the accident occurred]; see also Richfield Hotel Mgmt., Inc. v. Sup. Ct. (1994) 22 Cal.App.4th 222, 226–27; Silva v. Super. Ct. (1981) 119 Cal.App.3d 301, 304.) Moreover, a trial court’s decision to grant a party’s motion to transfer venue based on the convenience of the witnesses and the promotion of the ends of justice is subject to reversal only on a clear showing of abuse. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 644.)

Analysis

Defendant moves to change venue in this action under Code Civ. Proc. § 397(c), which gives the Court discretion to transfer the place of trial where “the convenience of witnesses and the ends of justice would be promoted by the change.” (C.C.P. § 397(c).) “The burden of proving both of these conditions is necessarily on the moving party.” (Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295.) As set forth above, to carry the burden of establishing witness inconvenience, the moving party must submit a detailed declaration specifying the name of each witness who would be inconvenienced, their expected testimony, why that testimony would be material to the case, and why they would be inconvenienced if the case were not transferred. This declaration must “contain something more than generalities and conclusions.” (Dillman v. Superior Court of Los Angeles County (1962) 205 Cal.App.2d 769, 773 [citations omitted]; 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 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”].)

Defendant has submitted declarations from Zachariah Moura and Defendant John Upton in support of its motion. Mr. Moura’s declaration makes no mention of the facts set forth above and does not identify any witnesses who are claimed would be inconvenienced if the case were not transferred. Mr. Upton’s declaration simply states he is a resident of Orange County and Defendant’s office is located in Costa Mesa. However, absent special circumstances not present here, “the court may not consider the convenience of the parties or of their employees in passing upon the motion.” (Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401; see also (Stute v. Burinda (1981) 123 Cal.App.3d Supp. 11, 17 [motion to transfer properly denied where declarations only discuss the convenience of “parties or employees of parties and no claim is made that the health of a party or employee would be affected by a trial in Los Angeles”].)

Defendant has thus failed to demonstrate any non-party witnesses would be inconvenienced by a trial in Los Angeles. Defendant states in conclusory terms that “many of the Upton Defendants’ important witnesses reside or work in Orange County,” yet Defendant does not identify any such witnesses beyond Defendant Upton. (Reply at 2.) Defendant claims unnamed attorneys and a legal assistant mentioned in the Complaint are “key witnesses.” (Motion at 6.) A review of the Complaint casts considerable doubt on whether these unidentified individuals would have any material testimony to offer in this case as they are mentioned briefly and in passing, as follows:

It was the very first time Plaintiffs had spoken to an attorney at the firm handling their case, since speaking to UPTON in January of 2012 when they retained the firm. That attorney advised Plaintiff that he would provide an update in a few days, however, he never called back. Neither did he respond to two subsequent e-mails from Plaintiffs.

(Complaint at ¶32.)

On or about August 2014, Plaintiffs were contacted for the first time by another attorney (not the one they spoke to in December) that had taken over the handling of their case some six months earlier. It was shortly after this that Defendants UPTON and M&U first began any discovery relating to RCTC's ownership of the Subject Roadway and the placement of the Subject K-Rails, now thirty-two months after the Subject Accident. The following month, thirty-three months after the Subject Accident, the first depositions in the case were conducted.

(Id. at ¶34.)

When Plaintiffs learned of the dismissal of the State of California through a legal assistant at Defendant law firm and thereafter confronted Defendants, Defendants UPTON and M&U justified their actions by representing to Plaintiffs that this was in Plaintiffs' best interest as the City of Riverside, and not the State of California, controlled the Subject Roadway and was responsible for the placement of the Subject K-Rail.

(Id. at ¶36.)

The gravamen of Plaintiffs’ Complaint concerns actions taken by Defendant and others after Defendant ceased its representation of Plaintiffs in a prior personal injury lawsuit. These limited interactions with Defendant’s unnamed employees do not appear to be material to Plaintiffs’ claims, and Defendant has made no showing to the contrary. Moreover, Defendant has not identified these individuals or demonstrated they would be inconvenienced in any way by a trial in Los Angeles. Additionally, as set forth above, the convenience of a party’s employees is generally not to be considered in ruling on a motion to transfer under Code Civ. Proc. § 397(c). Accordingly, Plaintiffs’ mere mentioning of these individuals in the Complaint, without more, does not justify the transfer of this action.

Defendant bears the burden of establishing both the convenience of non-party witnesses and the interest of justice would be promoted. As Defendant has failed to show the convenience of non-party witnesses would be served by a transfer of this action to Orange County, the Court need not determine whether the interests of justice would also be served by a transfer and declines to do so. Defendant’s motion is thus DENIED.

Conclusion

Defendant’s motion to transfer venue to Orange County is DENIED.