Judge Kerry Bensinger, Case Number: 21STCV06126, Date: 2024-01-16 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

This is an employment discrimination and wrongful termination action. On February 16, 2021, Plaintiff, Pedro Gutierrez, filed an unverified Complaint against Defendants, Walmart, Inc., Wal-Mart Associates, Inc., Wal-Mart Stores, Inc. (collectively, “Walmart Defendants”), Robert Alcazar, Jayme Bravo, and Jessica Blackwell, asserting causes of action for:

3. FEHA Failure to Engage in Timely & Good-Faith Interactive Process (Gov. Code §12940(n));

6. Failure to Prevent/Remedy Discrimination and/or Retaliation in Violation of FEHA (Gov. Code §12940(k));

7. Failure to Hire or Refusal To Hire in Violation of FEHA (Gov. Code §12940(a));

Plaintiff worked at Wal-Mart in Tulare County from July 31, 2002 until March 8, 2019. Plaintiff suffered from anxiety and depression due to childhood domestic violence. Because of his anxiety and depression, Plaintiff took a medical leave of absence. His leave began on or about February 12, 2018, and ended on January 31, 2019. After he returned to work, Plaintiff alleges Wal-Mart did not engage in an interactive process or accommodate his disabilities. On March 8, 2019, Plaintiff alleges he was terminated. Thereafter, Plaintiff applied for other positions with Wal-Mart in Kern County, Tulare County, and Los Angeles County. Wal-Mart refused to rehire him. Plaintiff alleges Wal-Mart refused to hire him because of his disabilities and because he engaged in protected activities.

On December 15, 2023, Defendants filed this Motion to Transfer Venue from Los Angeles County to Tulare County.

Pursuant to Code of Civil Procedure (“CCP”) §§ 397(a) and (c), Defendants move to change venue to Tulare County because venue is not proper in Los Angeles (§ 397(a)), and even if it were proper, venue should be moved to Tulare County for the convenience of witnesses and in the interests of justice (§ 397(c).)

Plaintiff opposes arguing venue is proper in Los Angeles County pursuant to FEHA and Government Code (“Gov. Code”) §12965 (c)(3), and Defendants fail to meet their burden to show venue should be moved to Tulare County pursuant to CCP § 397(c).[1]

Defendants motion improperly conflates CCP sections 397(a) and (c) into one test. The statutory sections are different as are the factors to be considered under each section. The court will address each statutory section in turn.

The general venue rule is that “‘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.’ [Citation.]” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 837 (Fontaine).) A FEHA action may be brought in the county where (1) the unlawful practice is alleged to have been committed, (2) where the records relevant to the practice are maintained and administered, or (3) where the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice. (Gov. Code, § 12965, subd. (c)(3).) “[I]f 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.” (Ibid.) This includes related non-FEHA claims brought under alternative theories but based on the same set of facts, such as Plaintiff’s cause of action for wrongful termination in violation of public policy. (Brown v. Superior Court (1984) 37 Cal.3d 477, 487 (Brown).)

As the court stated in Malloy v. Superior Court (2022) 83 Cal.App.5th 543, 546:

California's Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), enacted in 1980, establishes a comprehensive framework to safeguard the right of all individuals to seek, obtain and hold employment free from discrimination. (§ 12920; Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272 (Brown); Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 782, 187 Cal.Rptr.3d 119.) As one means of furthering FEHA's express purpose to provide effective remedies for discriminatory practices, a special venue provision allows plaintiffs to file a lawsuit “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 the practice are maintained and administered, or in the county in which the aggrieved person would have worked ... but for the unlawful practice.” (§ 12965, subd. (c)(3); see Brown, at p. 486, 208 Cal.Rptr. 724, 691 P.2d 272 [“[T]he costs of litigation pose a formidable barrier to the filing and prosecution of a FEHA action. The Legislature recognized this barrier and sought to alleviate it by providing those persons [victims of employment discrimination] with a wide choice of venue”].)

Plaintiff argues venue is appropriate in Los Angeles pursuant to Gov. Code §12965, subd. (c)(3), which provides for venue where “where the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice.” Plaintiff claims he would have worked in Los Angeles but for Wal-Mart’s alleged unlawful conduct. In his opposition, Plaintiff submits his own declaration wherein he states he would have worked in Los Angeles County but for the unlawful decision by Walmart. Plaintiff attaches screenshots of Wal-Mart’s purported hiring portal to corroborate his testimony. Plaintiff argues the screenshots support his contention that he applied for a job in Los Angeles. The screenshots include a picture showing 5 jobs available for unloading, stocking and price change. One of the available job sites appears to be a Wal-Mart supercenter in Santa Clarita CA 91350. Santa Clarita is in Los Angeles County.

Defendants raise both a factual and a legal challenge. As a factual matter, Defendants argue Plaintiff’s contention that he would have worked in Los Angeles is untrue because he did not apply for a job in Los Angeles. Relying on excerpts from Plaintiff’s deposition, Defendants point out that Plaintiff could not recall when he filled out or submitted his applications.

To prevail on their motion, Defendants “must overcome the presumption that the plaintiff has selected the proper venue. [Citation.] Thus, “[i]t is the moving defendant's burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.” [Citation.].” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)

Here, Defendants fail to rebut the presumption and fail to demonstrate Plaintiff did not apply for a job in Los Angeles, let alone refute his testimony that he would have moved to Los Angeles but for the unlawful activity. True, Plaintiff’s failure to recall when he completed or submitted the forms is relevant to attack Plaintiff’s credibility, but the screenshots are nonetheless corroborative. Moreover, Defendants had the opportunity to present evidence from their own records that Plaintiff did not apply to a job site in Los Angeles. No such evidence, by way of Defendants’ affidavits, was submitted.

Next, Defendant argues venue is not proper in Los Angeles as a matter of law. Because the majority of the factors set forth Gov. Code §12965(c)(3) weigh in favor of venue in Tulare County (the unlawful practices are alleged to have been committed in Tulare, and the records relevant to the practice are maintained and administered in Tulare), Defendants submit venue in Tulare County is mandatory. But the FEHA statute and the government code section do not employ balancing tests. If a plaintiff satisfies any of the three criteria, venue is appropriate in that location.

Defendants rely on Ford Motor Credit Co. v. Superior Court (1996) 50 Cal.App.4^th 306 (Ford). Ford is distinguishable. In Ford, the Appellate Court ordered the matter transferred from Los Angeles County to Sacramento County because “at least two of the three enumerated criteria” happened in Sacramento. The Court did not discuss the application of the third criteria – where the plaintiff would have worked but for the alleged unlawful practice. Moreover, based upon the factual recitation in Ford, there was no evidence (or at least no discussion) whether plaintiff would have worked for Ford in Los Angles County but for the unlawful practice.[2]

Malloy v. Superior Court (2022) 83 Cal.App.5^th 543 (Malloy) is more on point. In Malloy, plaintiff worked remotely from her home in Los Angeles County. Her employer was located in Orange County. Malloy argued that “Los Angeles County was the proper venue for her FEHA pregnancy discrimination, interference and retaliation causes of action because the unlawful employment practices occurred in Los Angeles while she was working from home or on protected pregnancy disability leave, and she would have continued working in Los Angeles at least until June 10, 2021 if not for the FEHA violations (including her wrongful termination).” (Id. at p. 549.) The Appellate Court agreed with Malloy. “Construing the language of section 12965, subdivision (c)(3), broadly to effectuate its purpose of ‘permitting venue in a county which plaintiffs deem the most appropriate and convenient’” (Id. at p. 555, [citation omitted].), the Malloy Court held that “venue was proper in Los Angeles County as the ‘county in which the aggrieved person would have worked… but for the alleged unlawful practice.’” (Id. at p. 556.) True, Malloy lived and worked remotely in Los Angeles whereas Plaintiff herein resides in Tulare County. But that fact does not change the plain meaning of the statute nor its application where Plaintiff declares he would have worked in the location but for the alleged unlawful conduct.[3]

Even if venue is proper in a particular location, the court may change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change. (CCP § 397(c).) The moving party has the burden of proving both conditions in Section 397, subdivision (c). (Ryez v. Superior Court of San Francisco Cty. (2022) 81 Cal.App.5th 824, 836.) “Before the convenience of witnesses may be considered as a ground for an order granting a change of venue it must be shown that their proposed testimony is admissible, relevant and material to some issue in the case as shown by the record before the court. [Citation.] The declaration or declarations supporting the motion should 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. [Citation.]” (Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824, 836, citations and quotations omitted.) “The convenience of witnesses whose testimony will be merely cumulative is entitled to little consideration.” (Corfee v. S. California Edison Co. (1962) 202 Cal.App.2d 473, 477.) Further, the court does not consider as a factor the inconvenience of the parties to attend trial in deciding a motion to change venue. (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.)(Emphasis added.)

CCP section 397, subd. (c) has two parts: convenience of the witnesses and the interests of justice. With respect to the convenience of the witnesses, Defendants fail to present any information about any witnesses in this case. The only discussion presented by Defendants has to do with the convenience of the parties in the case, which is not an appropriate consideration for the court. (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.) Defendants fail to meet their burden on the first prong of CCP section 397, subd. (c).

The second prong -- interest of justice -- presents a closer call. On the one hand, Defendants are correct that most, if not all, of the relevant events took place in Tulare County and the witnesses may be located in Tulare County. On the other hand, Plaintiffs make a strong argument that Defendants delayed twenty-eight months after filing their answer to bring this motion. Trial is currently scheduled in four months, June 24, 2024. Defendants dispute the allegation of delay. Defendants contend they brought the motion as soon as they learned Plaintiff could not recall the specifics of his job application. Defendants’ argument lacks traction. While Plaintiff’s deposition may have unearthed concerns about Plaintiff’s job application to a job site in Los Angeles, Plaintiff’s deposition did not suddenly reveal that the locus of the events in this case and all the potential witnesses are all located in Tulare County. And that is the stronger point for the court’s consideration.

On balance, Defendants fail to meet their burden to demonstrate that under these circumstances the interests of justice weigh in favor of a last-minute transfer to Tulare County.

[1] Plaintiff argues Defendants’ motion is untimely. Plaintiff misconstrues the statutory basis for Defendants’ motion. Defendants bring this motion pursuant to CCP section 397, not CCP section 396b. A motion to transfer under section 397 is permissive; there is no specific time limit by which the motion must be brought. Defendants’ motion is timely.

[2] In Malloy, the Appellate Court distinguished Ford as follows: “In Ford Motor Credit v. Superior Court, supra, 50 Cal.App.4th 306, 57 Cal.Rptr.2d 682 our colleagues in Division Five of this court held venue for plaintiffs’ FEHA action was mandatory in Sacramento County, where plaintiffs had been employed and where they alleged all the acts of racial discrimination, harassment and retaliation took place, not in Los Angeles County, “where they now reside.” (Id. at p. 308, 57 Cal.Rptr.2d 682.) The case did not involve any issue of remote or off-site work.” (Malloy, supra, 83 Cal.App.5th at. 550, fn. 8.) In a similar fashion, Ford did not involve a remote job application where the plaintiff affirmatively states s/he would have worked in the venue location but for the alleged unlawful practice.

[3] While the statute may be subject to the abuse as described by Defendants, that is a topic better raised with the Legislature than the superior court.