Judge: Kerry Bensinger, Case: 22STCV03336, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV03336    Hearing Date: March 23, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On January 27, 2022, plaintiff Laura Temple (“Plaintiff”) filed this action against defendants Action Water Sports of Incline Village, LLC (“AWS”), Gary Scott, David Ceruti, E.B. (collectively, “Rental Defendants”), and Michael Goodwin (“Goodwin”), Zakaria Stour (“Stour”), Shawn Willette (“Willette”), and Brenda Poot (“Poot”) for personal injuries arising from a boating accident that occurred on Lake Tahoe in an area near Chimney Beach Cove.  Chimney Beach Cove is located within Carson City County, Nevada.  

According to the Complaint, Goodwin, Stour, Willette, Poot (hereinafter, the “Group”), and Plaintiff were Hyatt Hotel work colleagues.  On August 4, 2020, Plaintiff and the Group decided to rent a motorboat from AWS to go swimming or tubing on Lake Tahoe.  Plaintiff was swimming behind the boat rental at the time of the incident.  Either Goodwin or Willette started the engine and put the boat into reverse.  As the boat reversed, Plaintiff was sucked into the propeller area and sustained severe lacerations to her body.  At the time of filing the Complaint, Willette and Poot were residents of the County of Los Angeles, California. 

Plaintiff asserts two causes of action against Rental Defendants: negligence and violations of Nevada Revised Statute (“NRS”) 488.730.  Plaintiff alleges Rental Defendants breached their duty of care by failing, among other things, to provide adequate instructions and safety briefings to the Group so that the recreational boat rental could be safely operated. 

On October 28, 2022, AWS filed this motion for change of venue arguing a change of venue will serve the convenience of non-party witnesses who reside in Nevada.  Plaintiff filed an opposition and AWS filed a reply.

II.      EVIDENTIARY OBJECTIONS

            AWS submits twelve objections to Exhibits 7-18 which are attached to the Declaration of Carlos F. Llinas Negret and cited in Plaintiff’s opposition.  The objections are sustained.  (Evid. Code., §§ 210, 350, 352, 1200.)  However, even if the Court were to consider the information, it would not change the outcome.

III.      LEGAL STANDARDS

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).) 

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.)

IV.      DISCUSSION

A.   AWS’s Arguments

AWS brings this motion pursuant to Code of Civil Procedure section 397, subdivision (c).  AWS argues the Motion should be granted under section 397 because four of five nonparty witnesses AWS intends to call at trial to testify are residents of Nevada, and the fifth is a resident of South Lake Tahoe, in El Dorado County, California.  Further, the subject incident occurred in Lake Tahoe, near Chimney Beach Cove.  Thus, changing the venue to a California county such as El Dorado County or Placer County, which are each closer to where the alleged incident occurred, would convenience the nonparty witnesses and promote the ends of justice. 

In support, AWS submits the declarations of the five nonparty witnesses—Tray Palmer, Joanne Palmer, Anthony Taylor, Jake Kreamer, and  Chris Lucas, and the declaration of Ian A. King II, AWS’s counsel.   

1.   Declarations of Tray Palmer, Joanne Palmer, and Anthony Taylor:  Tray,

Joanne, and Anthony were in a nearby vessel when Plaintiff was allegedly struck by the propeller.  Each of them observed the events immediately leading up to Plaintiff’s alleged injuries.  Each declarant is a resident of Washoe County, Nevada.  Tray and Joanne Palmer declare they would be inconvenienced if they were to travel to Los Angeles County to testify.  Anthony Taylor objects to traveling to Los Angeles because he is in poor health and resides out of state.  Each declarant states they are prepared to attend and participate in the trial if it were to take place in El Dorado County or Placer County.  

2.   Declaration of Jake Kreamer:  Kreamer declares he is a resident of Lyon

County, Nevada.  Kreamer was the lead investigator of the incident and spoke individually with defendants Goodwin, Willette, and Stour.  Kreamer further declares that he will be inconvenienced if were to travel over 450 miles to testify in Los Angeles.  However, he is prepared to attend and participate in the trial if it were to take place in El Dorado County or Placer County. 

      3. Declaration of Chris Lucas.  Lucas is a resident of El Dorado County, California.  At the time of the incident, he was employed by the Tahoe Douglas Fire Protection District 23.  While acting within the scope of his employment, Lucas took Plaintiff from Chimney Bach and transported her to Sand Harbor where she could be air-lifted to a medical center in Reno, Nevada.  Lucas states he would be inconvenienced if he had to travel several hundred miles to testify in this action.

4.  Declaration of Ian A. King II: King declares, in relevant part, that all five

witnesses will be called to testify regarding the foregoing events.

B.   Plaintiff’s Arguments

Plaintiff argues that AWS’s motion should be denied because (1) four of

AWS’s witnesses are Nevada residents and thus are not subject to the subpoena of any California Court, (2) the testimony of the witnesses can be provided remotely, (3) the testimony of three of AWS’s witnesses are cumulative and largely immaterial, and (4) Kreamer’s investigative report is replete with hearsay and his opinions are not admissible, (5) Lucas’s declaration does not show how the testimony he would provide at trial would assist in this litigation, and (6) none of the AWS’s witnesses can provide testimony on Plaintiff’s specific claims against AWS.[1]  Further, Plaintiff submits her declaration and the declaration of Stour to show they would be inconvenienced by a change of venue.

          Plaintiff relies on J. C. Millet Co. v. Latchford-Marble Glass Co. (1959) 167 Cal.App.2d 218 (J. C. Millet) for the proposition that a pledge to attend trial is properly rejected by the Court when the potential witnesses are beyond the court’s subpoena power.  However, Plaintiff’s reliance on J. C. Millet is misplaced.  The Court of Appeal held that “the trial court was warranted in rejecting [defendants’ counsel’s] pledge” of four nonparty employees at trial because “defendants themselves had no way of assuring their attendance at the time of trial.”  (J. C. Millet, 167 Cal.App.2d at p. 228.)  Here, AWS’s out-of-state witnesses themselves, and not AWS’s counsel, declare their readiness to attend trial if the venue is changed to El Dorado County or Placer County in California.  AWS’s out-of-state witnesses may not be subject to any California courts’ subpoena power; however, their representation that they will attend trial in El Dorado County or Placer County makes them viable witnesses and willing participants in the trial.  They have stated their positions under oath and the Court has no reason to doubt their willingness to participate in the trial.[2]

          Plaintiff argues that remote technology alleviates the inconvenience of the non-party witnesses.  “[T]he availability of remote testimony is a circumstance that may ease the inconvenience for any witnesses that live in a location distant from the site of trial, but it is not a proper basis for denying a motion to transfer a case to the county where most witnesses are located.”  (Rycz, supra, 81 Cal.App.5th at p. 843.) 

          Ultimately, while the case was properly filed in Los Angeles, none of the witnesses or even the parties reside in Los Angeles. 

          While the Court has considered Plaintiff’s and Stour’s declarations, it is well settled that the convenience of the parties is not a factor to be considered in the change of venue calculus.  (See Wrin, supra, 213 Cal. at p. 160.) 

          Plaintiff lodges several challenges to the testimony of AWS’s nonparty witnesses.  As indicated above, Plaintiff argues the proffered testimony is either cumulative, inadmissible, or irrelevant.  Although a review of the declarations of Tray Palmer, Joanne Palmer, and Anthony Taylor supports Plaintiff’s contention that the testimony is somewhat cumulative, the relevance, admissibility, and importance of their testimony is obvious.  After all, Tray, Joanne and Anthony were present when Plaintiff sustained her injuries in the boating incident. 

As to nonparty witnesses Kreamer and Lucas, Kreamer investigated the subject incident and Lucas aided in Plaintiff’s emergency transport to receive medical attention.  Their testimony is admissible and relevant to the issues.  The Court considers the convenience of witnesses when it is shown that their “proposed testimony is admissible, relevant and material to some issue in the case as shown by the record before the court.”  (Rycz, supra, at p. 836.) 

Based upon the foregoing, the Court finds the convenience of witnesses and the ends of justice are promoted by the change of venue.  (Code Civ. Proc., § 397, subd. (c).)

V.        CONCLUSION

Accordingly, AWS’s motion for change of venue is GRANTED.

The Court will hear from counsel regarding which location is preferable:  El Dorado County or Placer County. 

The Court’s tentative ruling is also contingent upon Defendant posting of the fees for the change of venue.   

Moving party to give notice. 

          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’s 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.

       Dated this 23rd day of March 2023