Judge: Kerry Bensinger, Case: 22STCV22922, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV22922    Hearing Date: January 9, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

          On July 15, 2022, Plaintiffs Sausee Moghoyan and Grant Maxwell (“Plaintiffs”) brought this action against Defendants Anabi Oil Corporation and Anabi Convenience Centers, Inc., asserting various theories of negligence and negligent infliction of emotional distress. Plaintiffs added RADC Enterprises, Inc. (“Defendant”) to their FAC, and subsequently requested dismissal of Anabi Oil Corporation and Anabi Convenience Centers, Inc. In their FAC, Plaintiffs allege they were the victims of an armed robbery at a gas station owned and operated by Defendant. The gas station is located at 285 Hegenberger Road, Oakland, California 94621—which is in Alameda County.

          On October 14, 2022, Defendant filed this motion to transfer the action to Alameda County. On December 23, 2022, Plaintiffs filed an opposition. On December 30, 2022, Defendant filed its reply.

II.       LEGAL STANDARD

          “Except as otherwise provided in Section 396a, 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(a).)

“The court may, on motion, change the place of trial in the following cases:

(a) When the court designated in the complaint is not the proper court.

(b) When there is reason to believe that an impartial trial cannot be had therein.

(c) When the convenience of witnesses and the ends of justice would be promoted by the change…” (Code Civ. Proc. § 397.)

III.      DISCUSSION

          Defendant brings this motion to transfer on grounds that Defendant’s principal place of business is not in Los Angeles County and Plaintiffs’ injuries did not occur in Los Angeles. Defendant argues Alameda County is where this action should proceed because that’s where the alleged incident occurred and where many non-party witnesses live and/or work.

          In opposition, Plaintiffs argue the instant motion is both procedurally and substantively flawed. Procedurally, Plaintiffs offer case law holding that a motion to transfer based on witness convenience cannot be made before an answer is filed. Substantively, Plaintiffs offer case law holding that a corporate defendant can only compel the transfer of an action to the county in which it resides. Since Defendant resides in San Bernadino County, Plaintiffs acknowledge Defendant could transfer this action to San Bernadino if it were so inclined.

          Defendant replies by arguing the Court has the authority to transfer actions to any venue listed in Code of Civil Procedure section 395.5—which includes the county where liability arises. Defendant points out that Plaintiffs’ FAC alleges that a breach of duty and subsequent injury occurred in Alameda—not Los Angeles. Notably, Defendant does not appear to be amenable to a transfer to San Bernadino.

Transfer Under Section 397 Not Permissible at this Stage

          Defendant argues San Bernadino County is the proper venue because that is where most of the witnesses live and work. Plaintiffs argue Defendant cannot bring a motion to transfer based on witness convenience because it has not filed an answer.

“[A] motion to transfer venue based on witness convenience cannot be made before an answer is filed…” (Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1665 [citing DeLong v. DeLong (1954) 127 Cal.App.2d 373, 374.]; See also Robert E. Weil, Cal. Prac. Guide Civ. Pro. Before Trial ¶ 3:567 (2022) [“Until all defendants have answered, the court cannot ascertain the issues that may be involved at trial. Therefore, it cannot tell which witnesses’ testimony at trial will be necessary and it cannot rule effectively on a motion for transfer based on ‘convenience of the witnesses.’”].)

Defendant brings their motion under two statutes—Code of Civil Procedure section 396b and Code of Civil Procedure section 397. Defendants justify their motion under section 397 by arguing many of the non-party witnesses live and work in Alameda County. This is a convenience argument. Defendant is barred from bringing a motion to transfer venue on these grounds because Defendant has yet to file an answer.

This leaves section 396b as the remaining basis for Defendant’s motion.

Defendant Does Not Have the Right to Transfer to Alameda County Under Section 396b

          “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.” (Code Civ. Proc. § 395.5.)

“[I]f an action is not commenced in a proper county, as set forth in the constitution and statutes, the corporation may change the venue to the county of its residence, but there is no authority for changing it to some other county in which the plaintiff could have brought the action.” (Beutke v. American Securities Co. (1955) 132 Cal.App.2d 354, 361.) Section 395.5 “is for the benefit of the plaintiff and does not give the defendant corporation the same rights.” (Ibid.) The Beutke Court found the defendant corporation in that case was “entitled to request the change of place of trial to the county of their residence, but instead they made a motion to change the place of trial to Alameda County, which they concede was not the county where their principal place of business was located…” (Id. at 361-362.)

As noted above, at this stage of the proceedings Defendant may only bring a motion to transfer under section 396b. Whereas section 397 gives the Court the discretion to transfer an action under several scenarios, section 396b gives a defendant the right—before or at the time it answers—to transfer an action that has been filed in the wrong venue. (See Code Civ. Proc § 396b(a), emphasis added [“if an action or proceeding is commenced in a court…other than the court designated as the proper court…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…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…”].) But as explained in Beutke, assuming Defendant establishes Los Angeles is the wrong venue, Defendant only has the right to transfer this action to county in which it resides.

Defendant argues that Los Angeles County is neither the county where Defendant resides nor the county where liability allegedly arises. Plaintiff admits Defendant does not reside in Los Angeles but argues that some of the Plaintiff’s alleged injury occurred in Los Angeles. However, Plaintiffs allege they were the victims of an armed robbery that occurred in Alameda County. (FAC, ¶¶ 16-27.) In arguing that some of their injury occurred in Los Angeles, Plaintiffs are ostensibly arguing that a portion of their pain and suffering occurred here. The argument is tenuous at best. Defendant establishes that Los Angeles County is not the proper venue for this action.

Defendant seeks to have this action transferred to Alameda County. Defendant, however, resides in San Bernadino County since Defendant’s principal place of business is in San Bernadino. Until it answers, Defendant, like the defendant corporation in Beutke, only has the right to transfer this action to the county where it resides.

Plaintiffs acknowledge in their opposition that Defendant has the right to transfer this action to San Bernadino. Defendant does not oblige. Rather, Defendant continues to request transfer to Alameda County in its reply despite the Court lacking the authority to do so at this stage of the proceedings. Defendant’s motion to change venue is therefore denied.

IV.      CONCLUSION

         Defendant RADC Enterprises Inc.’s motion for change of venue is DENIED.

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 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.