Judge Holly J. Fujie, Case Number: 24STCV27082, Date: 2025-01-24 Tentative Ruling

This is a harassment and wrongful termination action. Plaintiff filed the operative complaint (“Complaint”) on October 16, 2024 against Coronado Brewing, David Schrieber, Austin Jones, and Does 1-25 (collectively, “Defendants”) alleging causes of action for: (1) Harassment and Sexual Harassment Based on Sex and Gender in Violation of the Fair Employment and Housing Act [Cal. Gov’t Code § 12940(j)]; (2) Discrimination Based on Sex and Gender in Violation of the Fair Employment and Housing Act [Cal. Gov’t §§ 12940(a)]; (3) Retaliation in Violation of the Fair Employment and Housing Act [Cal. Gov't Code §12940(h)]; (4) Wrongful Termination in Violation of Public Policy; (5) Failure to Prevent Harassment and Discrimination from Occurring in Violation of the Fair Employment and Housing Act [Cal. Gov’t Code §§12940(k)]; (6) Aiding and Abetting Discrimination in violation of the Fair Employment and Housing Act [Cal. Gov’t Code §12940(i)]; (7) Negligent Hiring and Retention; (8) Negligence; (9) Intentional Infliction of Emotional Distress; and (10) Negligent Infliction of Emotional Distress.

On December 18, 2024, Coronado Brewing filed the instant motion to transfer or dismiss (the “Motion”). On January 8, 2025, Plaintiff filed an opposition (the “Opposition”). On January 21, 2025, Coronado Brewing filed a reply (the “Reply”).

“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.” (Code Civil Procedure (“CCP”), § 397, subd. (a).)

Venue rules depend on whether an action is “transitory” or “local.” In transitory actions, namely actions whose main relief is personal and does not involve land, proper venue is generally “the county where the defendants or some of them reside at the commencement of the action.” (CCP, § 395, subd. (a); Brown v. Superior Court (1984) 37 Cal.3d 477, 483.) This general rule of venue is subject to exceptions (“[e]xcept as otherwise provided by law”). (Id.)

Where the plaintiff alleges two or more causes of action or joins two or more defendants governed by different venue provisions, venue must be proper as to all causes of action. “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, supra, 37 Cal.3d 477, 488.) However, there are cases in which this “mixed action” rule is not followed for public policy reasons, such as those involving Fair Employment and Housing Act (“FEHA”) claims. (Id.; Malloy v. Superior Court (2022) 83 Cal.App.5th 543, 555-57.)

A mixed action alleging violations of the FEHA may be brought “in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to such practice are maintained … or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.” (Gov. Code, § 12965 subd. (c)(3).)

Coronado Brewing moves to transfer venue for this action to San Diego County where it has its primary place of business. Coronado Brewing argues that venue is proper in San Diego County pursuant to CCP section 395, as opposed to Los Angeles County pursuant to the FEHA venue statute, because the FEHA allegations are improperly pled against Coronado Brewing and its employees. Coronado Brewing argues that while Plaintiff alleges that she was sexually harassed in Los Angeles County by third-parties David Toyoma (“Toyoma”) and Xavier Zamora (“Zamora”), neither Toyoma nor Zamora are employees of Coronado Brewing. (Mot. pp. 2:27-4:7.) Coronado Brewing argues that the management actions taken in response to Plaintiff’s complaints and Plaintiff’s later termination occurred at Coronado Brewing’s corporate office in San Diego. (Mot. p. 3:25-27.)

In the Opposition, Plaintiff asserts that because the harassing conduct occurred in Los Angeles County and the related non-FEHA claims are based on the same facts, the FEHA’s special venue provisions control. (Opp. pp. 4:15-5:14.) In the Reply, Coronado Brewing reasserts the argument that neither of the alleged harassers were employees of Coronado Brewing and that the “allegations of sexual harassment against employees of another company, cannot be used to claim venue against” Coronado Brewing. (Reply, p. 4:7-8.)

Coronado Brewing’s assertion that Plaintiff cannot assert a FEHA claim against it based on nonemployee sexual harassment is unavailing. Government Code section 12940 subdivision (j)(1) specifically provides that “[a]n employer may also be responsible for the acts of nonemployees, with respect to harassment of employees […] if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” Indeed, “the statute's legislative history indicates the Legislature enacted the statute to […] clarify the FEHA protects employees from nonemployee sexual harassment.” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 702; see also Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914.) Thus, the FEHA claims are properly alleged against Coronado Brewing. The next issue is determination of the applicable venue statute.

In Brown, the California Supreme Court provided guidance on which venue provisions apply in cases involving FEHA violations (to which the more specific venue statute, Government Code § 12965 subdivision (c)(3), applies) mixed with related common law claims (to which the general venue statute, CCP § 395, would ordinarily apply). The Court held that when a plaintiff alleges FEHA causes of action and other claims based upon the same factual allegations, “the important public policies sought to be effectuated by the FEHA compel the conclusion that the FEHA venue provision controls here. A contrary conclusion would render the special venue provisions of the FEHA mere surplusage and frustrate the intent of the Legislature.” (Brown, supra, 37 Cal.3d at 488.) Plaintiff’s FEHA allegations and tort allegations are based on the same factual allegations —Coronado Brewing’s alleged failure to take adequate corrective action to protect Plaintiff from sexual harassment. Thus, the FEHA venue statute controls and venue is proper in Los Angeles County where the alleged incidents of sexual harassment occurred. (Gov. Code, § 12965 subd. (c)(3).

“In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorneys' fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action.” (CCP, § 396b subd. (b).)

Coronado Brewing requests sanctions in the amount of $8,340.00 for expenses incurred in bringing this Motion. (Gill Decl., ¶ 9.) In the alternative, Plaintiff requests sanctions in the amount of $2,420.70 for expenses incurred in opposing the Motion. (Barkhordarian Decl., ¶¶ 4-6.) The Court finds that neither party has shown that monetary sanctions are warranted under CCP section 396 subdivision (b). Accordingly, the Court declines to award sanctions.

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