Judge Kerry Bensinger, Case Number: 21STCV16308, Date: 2023-05-10 Tentative Ruling

On April 30, 2021, plaintiffs Chaikamon Munwaree and Sanan-Ua (collectively, “Plaintiffs”) filed this Complaint against Defendant James Delicce (“Defendant”) for negligence. According to the Complaint, Defendant operated a vehicle that collided with Plaintiffs’ vehicle on a public street in the County of Los Angeles. Plaintiffs served Defendant with the summons and complaint on June 6, 2022.

On January 25, 2023, Defendant filed this motion to transfer venue from Los Angeles County to Orange County.

In a personal injury case, the superior court in either the county where the injury occurs or the county where defendants reside at the commencement of the action is the proper court for the trial of the action. (Code Civ. Proc., § 395, subd. (a).)[1]

If an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. 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. (Code Civ. Proc. § 396b, subd. (a).)

The court may change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change. (Code Civ. Proc., § 397, subd. (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.)

Defendant argues that he is entitled to an order transferring this case to Orange County because the underlying incident occurred in Orange County. In support, Defendant submits the traffic incident report which identifies the location of the accident as “Garfield and Bushard”. (Trafton Decl., Ex. B.) Defendant points out that Garfield and Bushard are in Huntington Beach, California in Orange County. Absent any information to the contrary, the Court agrees. Garfield and Bushard is located in Huntington Beach, California in Orange County.[2] Given the lack of opposition challenging the motion, Plaintiffs filed this action in an improper venue. (See Code Civ. Proc., § 395, subd. (a).) Accordingly, Defendant is entitled to an order transferring the venue to Orange County.

Defendant argues that Plaintiffs are responsible for transfer fees to change the venue when the action is not commenced in the proper court. “If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expenses and attorney’s fees awarded to the defendant pursuant to Section 396b, shall be paid by the plaintiff before the transfer is made. If the defendant has paid those costs and fees at the time of filing a notice of motion, those costs and fees shall be repaid to the defendant, upon the making of the transfer order. (Code Civ. Proc., § 395, subd. (a); Moore v. Powell (1977) 70 Cal.App.3d 583, 590.) As the Court has found that this action was commenced in an improper venue under Code f Civil Procedure section 396b, subdivision (a), Plaintiffs must bear the costs associated with transferring this action to Orange County.

The motion is GRANTED. The Court orders the Complaint, filed April 30, 2021, transferred to Orange County, subject to payment of the transfer fees by Plaintiffs.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that 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 matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Based upon the service of the summons and complaint, the Defendant may also reside in Orange County.

[2] On its own motion, the Court takes judicial notice of the fact that the streets of Garfield and Bushard are located in Huntington Beach, California in the County of Orange.