Judge Holly J. Fujie, Case Number: 23STCV05533, Date: 2024-12-02 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Defendants Kevin Young (“Young”) and Properties GB7 LLC (“GB7”) (collectively, “Defendants”)

This action arises out of an employment relationship. The operative First Amended Complaint (“FAC”) alleges: (1) Sexual Battery; (2) Sexual Assault; (3) Gender Violence; (4) Sexual Harassment and Harassment Based on Sex, Gender, National Origin, and Race in Violation of the Fair Employment and Housing Act [Cal. Gov’t Code §12940(j)]; (5) Constructive Discharge in Violation of Public Policy; and (6) Intentional Infliction of Emotional Distress. Defendant’s Cross-Complaint alleges: (1) conspiracy to defraud; (2) breach of fiduciary duty; (3) breach of contract; (4) conversion; (5) money had and received; and (6) money paid.

On October 31, 2024, Defendants filed the instant Motion to Transfer Venue from Los Angeles County to Ventura County (the “Motion”). Plaintiff filed an opposition to the Motion on November 15, 20024, and Defendants filed a reply on November 21, 2024.

Code of Civil Procedure section 395(a) states: “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…”

If the plaintiff files an action with an improper court, Code Civ. Proc. section 396b is a mandatory venue transfer statute under which a defendant may move to transfer the case on the grounds that venue was not filed in the proper court. “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.” (Cal. Code Civ. Proc., § 396b(a).) Defendant’s motion must be made within 30 days after service, unless extended by stipulation or court order. (Code of Civ. Proc. § 396b.)

Code Civ. Proc. section 397, the discretionary venue statute, provides in a similar manner that “the court may, on motion, change the place of trial . . . (a) [w]hen the court designated in the complaint is not the proper court.”

“It is the moving defendant’s burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds.” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)

Here, Defendants request to transfer venue from Los Angeles County to Ventura County, on the ground that at the time the complaint was filed: (1) no Defendants resided in Los Angeles County; (2) no Defendants did business in Los Angeles County; and (3) none of the allegedly wrongful acts took place in Los Angeles County. Defendants thus bring this Motion seeking to transfer venue to Ventura County, where Young lived at the time the Complaint was filed (Declaration of Kevin Young); where GB7’s principal place of business was located (Declaration of Maria Hutt); and where some of the alleged acts forming the basis for this lawsuit took place (Complaint and FAC).

This Motion was brought under the discretionary provision of Cal. Code Civ. Proc. § 397(a). To address the similarities between Code Civ. Proc. §§ 396b(a) and 397(a), the standards are substantially the same: whether “the court designated in the complaint is not the proper court.” The difference is that, if the Court determines that Los Angeles is not the proper court, the Court still retains some discretion over whether to order transfer.

Regarding timeliness, a motion for change of venue based on the filing in an improper court should be made at the earliest convenience. (Smith v. Pelton Water Wheel Co. (1907) 151 Cal. 399, 401.) If such a motion is made afterward, the applicant must explain any seeming lack of diligence on his part. (Ibid.) This is sometimes referred to by courts as acting with due diligence. Whether a defendant acted with reasonable diligence is a question of fact to be determined by the trial court. (Votaw v. Miller (1941) 42 Cal.App.2d 676, 677.) “Irrespective of the mandatory language in the statute, the right to transfer may be waived if there is unreasonable delay. (Newman v. County of Sonoma (1961) 56 Cal. 2d 625, 627-628.)

Here, Defendants brought a motion to change venue approximately 20 months after the Complaint was filed in March 2023. Additionally, Defendants not only filed an answer on May 8, 2023, but also on that date, Defendants filed their Cross-Complaint – in this Court – specifically pleading that Young “is now, and at all times herein mentioned was, an individual residing in the County of Los Angeles,” and that GB7 “is now, and at all times herein mentioned was, an entity conducting business in the County of Los Angeles.” (Cross-Compl., ¶¶ 1-2.) The Cross-Complaint then alleges that “Venue is proper in the County of Los Angeles because it was and is the proper venue for the original Complaint filed by Plaintiff Jane Doe…” (Cross-Compl., ¶ 9.)

The docket further shows that in the months that followed, Defendants also filed, inter alia:

• a June 14, 2023 opposition to Plaintiff’s motion for a protective order, along with a

• a September 1, 2023 opposition to Co-Cross-Defendant Arch Hoffman’s motion to

• a February 7, 2024 motion to compel Hoffman to answer their deposition questions, and

• a September 30, 2024 motion to compel Plaintiff’s deposition and for sanctions; and

As noted by Plaintiff, through all these motions, Defendants never raised any opposition to venue nor raised any venue-related arguments.

Although section 397 does not specify the time within which a motion thereunder is to be made, such a motion must be made within a reasonable time. The general rule is that a party seeking a change of venue must act within a reasonable time. (Newman v. Sonoma Cnty., supra, citing Cooney v. Cooney, 25 Cal.2d 202, 208; Pascoe v. Baker, 158 Cal. 232, 233-234.) Because Defendants waited approximately 20 months and considering Defendants’ significant litigation of the action prior to bringing this Motion, the Court finds that the Motion was brought with unreasonable delay and, as such, Defendants have waived the right to transfer venue.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court