Department 30, Spring Street Courthouse 

August 12, 2022

22STCV00738

Motion to Change Venue filed by Defendant Southern California Edison

The motion is denied.

The Court declines to impose sanctions.

Moving party is ordered to provide notice.

On January 7, 2022, Plaintiff Stephanie Marie Wickstrom, individually, and as heir and successor in interest to Eric Wickstrom, Decedent, and as Guardian ad Litem for Logan Wickstrom and Brayden Wickstrom, minors and heirs of Eric Wickstrom, Decedent commenced this wrongful death and survival damages action against Defendants Southern California Edison Company and New Legend, Inc. 

Plaintiffs’ causes of action are (1) wrongful death based on negligence, (2) survival damages based on negligence, and (3) violations of Public Utilities Code section 2106. Plaintiffs request punitive damages in connection with the second and third causes of action. Plaintiff alleges Decedent passed away due to Defendants’ neglect while working as a journeyman lineman with Southern California Edison (“Edison” or “SCE”).

SCE seeks to change venue of this action to San Bernardino County on the grounds that trying the case there would promote the convenience of the witnesses and the ends of justice. SCE contends that the police officers and their employees who were involved in investigating the accident, Decedent’s coworkers and eyewitnesses, and Cal-OSHA investigators all reside in San Bernardino. Additionally, there are 13 medical providers who treated Decedent who reside in San Bernardino. SCE also contends that the equipment involved in the incident is located in San Bernardino and the residents of San Bernardino have a public policy interest in trying the case there.

Plaintiffs argue that a change of venue is inappropriate because the case is concerned with wrongful conduct which occurred in SCE’s headquarters in Los Angeles County. Plaintiffs contend the lawsuit is centered around SCE’s safety policies and corporate-wide failure to ensure implementation of its contractor safety policies. Plaintiffs will primarily call adverse witnesses from SCE, including SCE’s corporate officers, directors, managing agents, and other leaders and employees who created and maintained SCE’s governance documents related to contractor safety, and SCE employees who failed to implement contractor safety management standards. Plaintiffs state SCE has not produced PMQ witnesses and cannot identify the total number of witnesses who Plaintiffs will call at trial as adverse witnesses on behalf of SCE. Plaintiff notes that 42 witnesses, including eyewitnesses to the incident and the company that finished work in the area after the incident all reside in Los Angeles County. Plaintiffs also state the physical evidence relevant to the incident is being housed in Los Angeles County. Plaintiff also requests sanctions.

SCE argues that the convenience of a moving party’s employees in determining a motion to transfer venue is irrelevant. SCE also argues that Plaintiffs failed to establish that the witnesses identified in their opposition are relevant or necessary to the issues in the action. SCE further contends that it provided sufficient information warranting a transfer of the action to San Bernardino County through sworn declaration and that its motion was timely. SCE contends Plaintiffs’ request for sanctions is baseless and exorbitant. 

“Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.]’ [Citation.]” (Dow AgroSciences, LLC v. Superior Court (2017) 16 Cal.App.5th 1067, 1076.)  

 

Code Civ. Pro. section 397 provides, in pertinent part, as follows: “The court may, on motion, change the place of trial in the following cases…(c) When the convenience of witnesses and the ends of justice would be promoted by the change.”

The burden is on the moving party to establish facts justifying the transfer.  (Mission Imports, Inc. v. Superior Court¿(1982) 31 Cal.3d 921, 928.)  However, “the rule is well settled that the convenience of employees of a party to an action need not be consulted in passing upon a motion for change of venue.”  (Dillman v. Superior Court of Los Angeles County (1962) 205 Cal.App.2d 769, 773-774.)  Where a party moves to transfer venue based on the convenience of witnesses, it must submit affidavits showing the names of each witness expected to testify for both parties, the substance of their expected testimony, whether the witness has been deposed or given a statement, the reasons why it would be inconvenient for the witnesses to appear, and the reasons why the ends of justice would be promoted by transfer to a different county.  (Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16; Edwards v. Pierson (1957) 156 Cal.App.2d 72, 75 [“The burden rests upon one who seeks a change of venue . . . to prove that both the convenience of witnesses and the ends of justice will be promoted thereby . . . This he must do through affidavits which contain something more than generalities and conclusions”]; Mission Imports, supra, 31 Cal.3d at p. 928 [moving party may submit declarations containing admissible evidence in support of the motion to transfer venue].) 

SCE seeks to transfer this matter to be tried in San Bernardino County pursuant to Code Civ. Pro. section 397(c) on the grounds that the transfer will promote the convenience of the witnesses and the ends of justice. SCE contends that there are 32 witnesses who reside in San Bernardino County, that the equipment which caused Decedent’s injuries is in San Bernardino County, and that San Bernardino County has a public policy interest in trying the case there. SCE does not provide a declaration containing the names of witnesses for both sides, the substance of their testimony, why it would be inconvenient for each witness to appear locally, and why the ends of justice would be promoted by transfer to a different county. Although counsel for SCE touches on these factors in its motion, SCE did not submit the required affidavits necessary to prove that the venue change will promote the convenience of the witnesses and the ends of justice.

In opposition, Plaintiffs argue that SCE neglected to acknowledge the 42 witnesses Plaintiffs intend to call who reside in Los Angeles County. (Brent Decl., ¶¶3, 4.) Plaintiff contends that the lawsuit is centered around decisions made about SCE’s safety policies in the SCE’s Los Angeles headquarters. Additionally, the pole, crossarm, and other physical items SCE removed from the site of the incident are stored in SCE’s Alhambra facility in Los Angeles County. (Id., ¶14.) Plaintiffs support their opposition with a separate declaration that provides the names of each witness it intends to call and the nature of their expected testimony. Plaintiffs did not provide a full list of SCE’s witnesses because SCE has not named witnesses in response to Plaintiff’s PMQ deposition notice. (Id., ¶4, no. 42.) A court may consider the convenience of a party’s employees when they are called as adverse witnesses by an opposing party. (Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401-402.)  

SCE has not met its burden of proving that changing venue from Los Angeles to San Bernardino County would promote the convenience of the witness and the ends of justice. First, SCE did not provide a list of witnesses for both parties with information about their expected testimony, why it would be inconvenient for them to travel to Los Angeles County, or any other information generally required to determine whether a venue change should be granted. SCE mentions in its motion that it would be reasonable to infer inconvenience based on distance. (Motion, p.7.) However, SCE cites a case where the witnesses involved would have had to travel between San Francisco and San Diego. (Pearson v. Superior Court, City and County of San Francisco (1962) 199 Cal.App.2d 69, 70.) SCE has not shown why each witness would be inconvenienced by a commute from San Bernardino County to Los Angeles County. Moreover, Plaintiff’s opposition appears to show that an even greater number of 42 witnesses reside in Los Angeles County. (Brent Decl., ¶4.) 

Since SCE failed to meet its burden of showing a venue change will promote the convenience of the parties and the ends of justice, the motion is denied.

With regard to sanctions, the Court declines to exercise its discretion to grant sanctions.