Judge John J. Kralik, Case Number: 22AHCV01375, Date: 2023-06-23 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiff Jose Ricardo Perez Gutierrez (“Gutierrez”) alleges that on January 4, 2021, he was pouring concrete at a construction job site at 588 Camino Del Rio N., San Diego, California, when a massive concrete placing boom collapsed, struck him on the head, and cracked his safety helmet. He alleges that this skull was depressed by the blow and he was knocked unconscious. Plaintiff Maria Del Rosio Zaragoza (“Zaragoza”) alleges that she is the wife of Gutierrez and is suing for loss of consortium.

Gutierrez worked for Defendant D&D Laser Screed Inc., a company which provides slab installation services, and his job was to assist in pouring concrete as a “hose man.” (Compl., ¶49.) The subject boom was designed, manufactured, marketed, distributed, and/or sold by Defendants Hyundai Everdigm Corp., Everdigm America, Inc., and Hyundai America, Inc. (“Hyundai Defendants”). (Id., ¶53.) Defendants Concrete Placement, Inc., GBC Concrete and Masonry Construction Inc., TTL Building Company, Inc., and TDC Construction Inc. (“Construction Defendants”) owned the subject boom and were responsible for its operation, maintenance, and/or inspection. (Id., ¶54.) Plaintiffs allege that on January 4, 2021, Construction Defendants were operating the subject boom, when it collapsed and struck and hit Gutierrez on the head. (Id., ¶55.)

The complaint, filed December 12, 2022, alleges causes of action for: (1) strict products liability; (2) products liability – negligence; (3) negligence, including res ipsa loquitur; and (4) loss of consortium.

On February 9, 2023, Plaintiff dismissed without prejudice TDC Construction, Inc. from the action. On April 25, 2023, Plaintiff dismissed without prejudice DMC Builders, Inc. (Doe 51), DMC Builders Co. Inc. (Doe 52), DMC Building Company Inc. (Doe 53), Din/Cal 3, Inc. (Doe 54), Din/Cal 4, Inc. (Doe 55), and Din/Cal Management, Inc. (Doe 56) from the action.

On February 8, 2023, GBC Concrete and Masonry Construction, Inc. filed a cross-complaint against Roes 1-50 for: (1) contribution; (2) declaratory relief; (3) equitable indemnity; (4) implied indemnity; and (5) expressed indemnity.

On March 28, 2023, TTL Building Company, Inc. filed a cross-complaint against Hyundai Everdigm Corp., Everdigm America, Inc., and Hyundai Everdigm America, Inc. for: (1) express indemnity; (2) implied indemnity; (3) comparative contribution; (4) equitable indemnity; and (5) declaratory relief.

On April 3, 2023, Concrete Placement, Inc. filed a cross-complaint against Roes 1-50 for: (1) negligence; (2) strict liability; (3) breach of express and implied warranties; (4) negligence; (5) equitable and/or common law indemnification; (6) contribution; (7) apportionment; and (8) declaratory relief.

On May 1, 2023, Everdigm America, Inc. Hyundai Everdigm America, Inc. and Hyundai Everdigm Corp filed a cross-complaint. On May 12, 2023, they filed a first amended cross-complaint against Concrete Placement, Inc., GBC Concrete and Masonry Construction, Inc., and TTL Building Company, Inc. for: (1) equitable indemnity; (2) equitable apportionment; and (3) declaratory relief.

On July 12, 2023, Defendants Hyundai Everdigm Corp., Everdigm America, Inc., and Hyundai Everdigm America, Inc. (“Hyundai Defendants”) filed a motion to transfer venue from Los Angeles County Superior Court to San Diego County Superior Court – Central Division.

On July 21, 2023, Concrete Placement, Inc. filed a notice of joinder to Everdigm Defendants’ motion.

On August 9, 2023, GBC Concrete and Masonry Construction, Inc. filed a joinder to Everdigm Defendants’ motion.

CCP § 397(c) states that the court may, on motion, change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change. “Whether a motion for change of venue on the ground of convenience of witnesses should be granted or denied is a matter within the discretion of the trial judge.” (International Inv. Co. v. Merola (1959) 175 Cal.App.2d 439, 446.)

The burden of providing both the convenience of witnesses and the promotion of the ends of justice are on the moving party. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643.) With respect to establishing the “convenience of witnesses” made by affidavit, the showing must include: (1) the name of witnesses, (2) the nature of the testimony expected from each, and (3) the reasons why the attendance of each would be inconvenient. (Id. at 644.) Before the motion is granted, it must appear that the witnesses involved will testify to relevant and material facts, they will be inconvenienced unless the place of trial is changed, and the ends of justice will be promoted by the change in venue. (Id. at 646.) As for the “ends of justice,” the affidavit supporting the motion “must aver the facts from which such a conclusion may be reached.” (Id.)

“If the affidavits of plaintiff in opposition to the motion for change of venue show that his witnesses also will be inconvenienced by the change to another county as is requested by defendant, there is no abuse of the trial court's discretion in denying the motion.” (Hecker v. Ross (1960) 183 Cal.App.2d 30, 33.)

Hyundai Defendants argue that transfer of venue is proper pursuant to CCP § 397(c) because the incident took place in San Diego County and the overwhelming majority of the evidence is located in San Diego County, including the subject boom, the job site, and the witnesses who will testify as to the events prior to and after the accident. They argue that none of the parties are Los Angeles County residents and that the accident did not occur in Los Angeles County. Plaintiffs reside in San Bernardino County. Plaintiff’s identified witnesses (thus far) are not located in Los Angeles County (such as other workers and first responders), and the location of the accident was at 588 Camino Del Rio N. in San Diego. They argue that none of the Defendants have a principal place of business in Los Angeles County because Hyundai Defendants are foreign corporations, Concrete Placement, Inc.’s principal place of business is in Orange County, and TTL Building Company, Inc. is registered to do business in California with a principal place of business in Texas. (Juskie Decl., ¶¶8-10.) Hyundai Defendants also argue that Gutierrez’s employer D&D Laser Screed, Inc. is located in Riverside County, as well as other individuals with knowledge of his employment and training.

Hyundai Defendants’ counsel, Robert M. Juskie, lists 38 potential witnesses who will be testifying in the action and states that none of them reside in Los Angeles County. (Juskie Decl., ¶12.) The potential witnesses include:

o San Diego County Fire Department Captains Rebecca Newell and Vestus Scott (business address in San Diego

o San Diego County Emergency Services Technicians Jeffrey Dooley and Michael Moriarty (business address in San Diego)

o San Diego Firefighters Brandt Truver, Josef Ferrick, Brandon McElroy, Christopher Gage, Sean Hibbs, Randy Luce, Tyler Behling, Kevin Taddonio (business address in San Diego)

o San Diego County Engineers Ronald Edrozo II and Steven Holmerud (business address in San Diego)

o San Diego County Paramedics Wesley Womack, Daniel Florez, and Elyse Gregory (business address in San Diego)

o San Diego Firefighter and Paramedic Gregory Heid, Jonathan Horwarth, Kyle Kutzke, Craig Sullivan (business address in San Diego)

o D&D Laser Screed Employees Martin Rodriguez, Angel Chilango (San Diego residents)

o Former D&D Laser Screed Employees for Angel Arista Jardines and Cheynne Jeffrey Marvin (San Diego residents)

o D&D Laser Screed Foremen Ramon Martinez and Ramiro Aguilar(Riverside County resident)

o D&D Laser Screed Employees Brandon Nichols and Mike Harlow (Riverside residents)

o D&D Laser Screed Foreman Carlos Del Bosque (resides in Ontario, San Bernardino County)

o D&D Laser Screed employees Hector Chavez and Rodolfo Chavez (reside in Fontana, San Bernardino County)

o Former D&D Laser Screed employees Marcus De Shawon Perry (Highland, San Bernadino County)

In its joinder, GBC provides various declarations. Ryan P. Redfield, counsel for GBC, states that GBC’s principal place of business is in Riverside County. (Redfield Decl., ¶4.) Brandon Nichols states that he is a resident of Lake Elsinore, is not a resident of Los Angeles County, and was employed by D&D Laser Screed. (Nichols Decl., ¶¶1-3.) Carlos Del Bosque states that he is a resident of Ontario, California, is not a resident of Los Angeles County, and was employed by D&D Laser Screed. (Del Bosque Decl., ¶¶1-3.) Juvenal Expinoza states that he is a resident of Garden Grove, California, is not a resident of Los Angeles County, and was employed by Concrete and Masonry Construction, Inc. (Expinoza Decl., ¶¶1-3.) Modesto Garcia states that he is a resident of Jurupa Valley, California, is not a resident of Los Angeles County, and was employed by Concrete and Masonry Construction, Inc. (Expinoza Decl., ¶¶1-3.) Rodolfo Chavez states that he is a resident of Fontana, California, is not a resident of Los Angeles County, and was employed by D&D Laser Screed. (Chavez Decl., ¶¶1-3.) Brandon Nichols, Carlos Del Bosque, Juvenal Expinoza, Modesto Garcia, and Rodolfo Chavez state that they are employed by D&D Laser Screed and primarily work in San Diego County, they were working at the subject incident location on January 4, 2021 when the incident took place, they worked on the subject project located at 588 Camino Del Rio N. in San Diego, they have knowledge of facts giving rise to the January 4, 2021 incident, they do not conduct any business or work for an employer in Los Angeles County, and it would be inconvenient for them to travel to Los Angeles County when the incident and their knowledge of the incident comes from events in San Diego. (Nichols Decl., ¶¶3-8; Del Bosque Decl., ¶¶3-8; Expinoza Decl., ¶¶3-8; Garcia Decl., ¶¶3-8; Chavez Decl., ¶¶3-8.)

In opposition, Plaintiffs argue that Hyundai Defendants failed to provide declarations showing that the potential witnesses would be inconvenienced by Los Angeles County as the venue for this action. Instead, Plaintiffs also argue that many potential witnesses live outside of San Diego, closer to Los Angles. They argue that Hyundai Defendants rely on business addresses and that it is unlikely that the parties will call 20 first responders to testify at trial. Plaintiffs also argue that Gutierrez’s medical care occurred in San Bernadino (10 doctors) and Los Angeles (5 doctors). Finally, they argue that it would be inconvenient and produce inconsistent results to separate this case from the related subrogation case. The related subrogation case is Case No. 22STLC08655, Zurich Am. Ins. Co. v. Hyundai Everdigm Corp., which is an action to recover past worker’s compensation benefits paid to Gutierrez. (Beugelmans Decl., Ex. A.)

Plaintiffs argue that their potential witnesses include medical providers who are in San Bernardino County and Los Angeles County. They argue that Los Angeles is more convenient for Gutierrez’s treating doctors. (Opp. at p.12.)

o Micha Esposito, M.D. and Jiensup Kim, M.D. – examined Gutierrez related to the incident

o Huma Haider, M.D. and Mark Schachter, Ph.D. – treated Gutierrez for his brain injury

Based on the evidence provided by the parties (and based on Plaintiffs’ inability to refute the evidence), it appears that none of the parties and witnesses to the accident are located in Los Angeles County. Further, Plaintiffs do not deny that the subject accident occurred in San Diego County and that the subject boom is currently located in San Diego County. At most, it appears that the only potential witnesses who are located in Los Angeles County are 5 of Gutierrez’s 15 physicians (and none of the physicians submitted their declarations in support of the opposition brief). The remainder of the witnesses are located in Riverside, San Bernardino, and Orange Counties. Thus, Los Angeles County has the least amount of gravitational pull on the action. (The Court notes that Plaintiffs’ attorneys are located in Los Angeles, but the location of Plaintiffs’ attorneys would not have an effect on the proper venue of the action.)[1]

With the reply brief, Mr. Juskie states in his supplemental declaration that he contacted the employers of the first responders but that several of the San Diego entities refused to provide the contact information of their employees without a subpoena. (Juskie Reply Decl., ¶¶5-6.)

The Court will order the parties to attend the hearing so that the Court can make inquiries regarding the related Zurich case and will listen to further evidence and argument.

The parties are ordered to attend the hearing on the motion to transfer venue. At the hearing, the Court will inquire what witnesses they reasonably believe they will call at the time of trial who may be inconvenienced by a Los Angeles venue. The Court will also inquire whether Defendants have contacted Zurich American Insurance Company regarding its related case and whether Zurich American Insurance Company consents to a transfer of venue to San Diego County.

[1] The Court also notes that in the related action in Case No. 22STLC08655, Zurich American Insurance Company alleges that it is a corporation organized and existing under the laws of the State of New York and that it does business in the State of California. It has insured D&D Laser Screed, Inc. Zurich alleges the principal places of business for the Hyundai Defendants, Concrete Placement, Inc., GBC, TTL, and TDC (none of which are alleged to have principal places of business in Los Angeles), and alleges that they did business in the County of Los Angeles. (Beugelmans Decl., Ex. A [Zurich Compl., ¶¶1-9].)