Judge Kerry Bensinger, Case Number: 24STCV33171, Date: 2025-04-02 Tentative Ruling

This is an employment action. On December 16, 2024, plaintiff Ciema Salem (“Salem” or “Plaintiff”) filed a Complaint against defendants Sony Interactive Entertainment, LLC (“Sony”), Sony Interactive Entertainment Payroll Services, Inc. (“Sony Payroll”) and Anthony Justman (“Justman”), among other Sony entities, asserting causes of action for:

As alleged in the Complaint, Salem was employed as senior corporate counsel by Sony. In 2020, Salem transitioned to a hybrid work schedule which consisted of working remotely from her residence in Venice California and in-person from Sony’s Los Angeles office. During her employment with Sony, Salem complained to her supervisor Christine Curtis (“Curtis”) that criteria for promotion appeared to vary depending on gender. Salem was later laterally “promoted” to Justman’s group.

In 2022, Salem and her elderly parents developed Covid-19 symptoms which required Salem to take continuous medical leave. In June 2023, Salem met with her supervisor Justman who gave Salem a below target performance rating because Salem took protected medical leave. In August 2023, Salem took another approved medical leave to attend to her father’s medical needs. Salem’s parents live in Santa Clara. Salem was scheduled to return to work on October 27, 2023. However, prior to her return, Salem’s employment was terminated. Justman informed Salem that he eliminated Salem’s position in order to have the budget to hire a cybersecurity person. Salem contends her termination was pretextual because her position in Sony’s law department was the only position that was impacted.

On February 13, 2025, Sony, Sony Payroll, and Justman (hereafter, “Defendants”) filed this Motion to Transfer Venue. Defendants seek to transfer this action from Los Angeles County to San Mateo County.

Pursuant to Government Code (“Gov. Code”) section 12965(c)(3), and Code of Civil Procedure (CCP) sections 395, 395.5, 396b, 397(a), and 398, Defendants move to change venue to San Mateo County because venue is not proper in Los Angeles County.

Plaintiff argues venue is proper in Los Angeles County because the adverse employment actions occurred while Plaintiff worked in Los Angeles or Santa Clara and, but for Defendants’ alleged conduct, she would have worked in Los Angeles or Santa Clara.

For the reasons discussed herein, the court finds San Mateo County is the proper venue.

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 (Malloy):

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”].)

The defendant has the burden to show that the county in which the action was filed was improper under any applicable theory. (La Mirada Cmty. Hosp. v. Superior Ct. for Orange Cnty. (1967) 249 Cal.App.2d 39, 42.)

The parties agree the special venue provisions in the FEHA control. As relevant here, Defendants must show that Plaintiff could not file in Los Angeles County because (1) Los Angeles was not the county in which unlawful practice is alleged to have been committed, (2) Los Angeles County is not the county in which the records relevant to the practice are maintained and administered, or (3) Los Angeles in not the county in which the aggrieved person would have worked ... but for the unlawful practice.

Plaintiff argues venue is proper in Los Angeles because the “Plaintiff was at her home in Los Angeles County when Defendants called her and stated her reinstatement would become a termination” and “Plaintiff was at her home in Los Angeles County when Defendants emailed her and confirmed her termination was effective upon her return to work date.” (Opp., at p. 7.)

With respect to the first prong of the analysis, Malloy, supra, 83 Cal.App.5th 543, is dispositive. In Malloy, plaintiff worked remotely from her home in Los Angeles County. Her employer was located in Orange County. The plaintiff 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 disagreed with Malloy stating, “the FEHA venue statute is not so expansive as to allow a plaintiff who receives a ‘you’re fired’ e-mail while vacationing at Lake Tahoe to file a lawsuit in Placer County regardless of the location of the employer’s offices or where he or she actually worked.” (Id. at p. 554.)

b. The Relevant Records Are Not Maintained and Administered In Los Angeles County.

c. Plaintiff Would Not Have Worked In Los Angeles County But For The Alleged Unlawful Practice.

This case turns on the third prong of the FEHA venue statute. Plaintiff argues venue is appropriate in Los Angeles because she would have worked in Los Angeles but for Defendants’ alleged unlawful conduct. In support, Plaintiff submits her declaration showing that she maintains residences in Los Angeles and Santa Clara and began working remotely from either of those cities beginning around October 2019 through at least January 2022. (Ciema Decl., ¶¶ 4-5.) Plaintiff’s supervisor Curtis[1] was aware of and acknowledged that Plaintiff worked remotely from Los Angeles or Santa Clara. (Ciema Decl., ¶¶ 5-7.) Further, Salem maintains that she was working remotely in Los Angeles or Santa Clara when she was subjected to the adverse employment actions alleged in her complaint. (Ciema Decl., ¶ 9.)

Defendants raise both a factual and a legal challenge. As a factual matter, Defendants argue Plaintiff’s contention that she would have worked in Los Angeles is untrue because Plaintiff was hired to work in Sony’s headquarters in San Mateo and was assigned to the San Mateo office throughout her employment. (Justman Decl., ¶¶ 3, 4, 7.) None of the conversations about Plaintiff nor any of the actions taken by Defendants as alleged in the Complaint took place in Los Angeles. (Justman Decl., ¶¶ 5, 11-12, 14.) Plaintiff never requested a transfer to Los Angeles and was not granted approval to work from Los Angeles, and, consistent with Sony’s return to work policy, Plaintiff reported twice a week to the San Mateo office. (Justman Decl., ¶¶ 7, 8.) Plaintiff maintained a physical office with her personal belongings in San Mateo. She had a badge card to access the office in San Mateo. She did not have a badge card to access the offices in Los Angeles. Further, Plaintiff informed Defendants she lived in Los Gatos because she wanted to be close to and care for her elderly parents. (Justman Decl., ¶ 6.) Indeed, when Plaintiff took medical leave to care for her parents, Plaintiff was in Los Gatos. (Justman Decl., ¶ 13.) Finally, had Plaintiff’s position not been eliminated, Defendants would have expected Plaintiff to continue working at the San Mateo office following her leave in October 2023. (Justman Decl., ¶ 10.)

Based on the foregoing, Defendants meet their burden to show Los Angeles is not the proper venue under the FEHA venue statute. Glaringly absent from Plaintiff’s declaration is any indication that she requested or was granted leave to work remotely from Los Angeles. Plaintiff does not dispute she was assigned to the San Mateo office or that she reported to the San Mateo office in person. And as alleged, Defendants terminated Plaintiff after taking medical leave to care for her father. Plaintiff was on approved medical leave to care for her father from August 7, 2023 to October 27, 2023. She was terminated on October 18, 2023. Plaintiff does not dispute that her father resides in Los Gatos.

The issue here is slightly different from Malloy. In Malloy, the Court of Appeal framed the issue as follows: “The issue before us is whether any of the unlawful employment practices alleged by Malloy—in particular, real parties in interest's interference with her PDLL or CFRA leave rights—were committed in Los Angeles County within the meaning of section 12965, subdivision (c)(3), or whether termination of her employment before she returned to working remotely from her home qualifies Los Angeles County as the county in which she would have worked but for the unlawful practices.” (Malloy, supra, 83 Cal.App.5th at p. 553.) 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’” because Malloy took her disability leave in Los Angeles and defendants approved of her working remotely from Los Angeles. (Id. at p. 556.) In other words, the defendants interfered with her leave rights while she lived in Los Angeles and defendants authorized her to work remotely in Los Angeles. The facts in this case are different.

Here, unlike Malloy, Plaintiff took her medical leave in Los Gatos to care for her father. As Defendants point out, “whatever remote work accommodations Plaintiff previously was granted are irrelevant to her status as an employee on leave with assigned work location in San Mateo at the time of the elimination of her role. See Sexton, 2023 WL 1823487, at * 4 (“Plaintiff’s allegations indicate he was on leave of absence at the time he was terminated, not functioning as a remote employee.”).” (Reply, p. 7.) Plaintiff was not on leave in Los Angeles. Any interference with such leave would have occurred in Los Gatos.

Even if the court were to consider the issue of remote work instead of leave, Plaintiff was not approved to live in Los Angeles and work remotely. For example, Defendants did not transfer her assignment to the Los Angeles Office or approve of her working remotely from Los Angeles. To the contrary, Plaintiff maintained a physical office in San Mateo, along with her belongings. Her badge card was keyed to San Mateo, not Los Angeles. Had Plaintiff not been terminated she would have been required to work in San Mateo. That she may have also traveled to Los Angeles to work or to supervise a paralegal on occasion (or to travel to New York or to Boston, for that matter), does not change the locus of her employment, which was San Mateo. The fact she may have a house in Los Angeles (or New York or Vermont, for that matter) does not change the location of her employment or where she would have worked.

As the Malloy Court stated, “Whether to permit remote work or to require an employee be physically present at the employer's office on a full- or part-time basis, however, is an employer’s decision (albeit one that may be constrained by market conditions, as well as health and safety considerations). And an employer can always negotiate with its employees concerning the location of remote work.” (Malloy, supra, 83 Cal.App.5th at p. 559.) Here Defendants never transferred Plaintiff to work in Los Angeles and never agreed that Plaintiff could work remotely from Los Angeles. This is very different from Malloy, who was told “she could continue to work from her home during and after her pregnancy in light of health concerns posed by the COVID-19 pandemic” and “pursuant to that authorization, prior to being terminated, Malloy advised Spencer that her plan was to continue to work from home in order to care for her newborn infant for at least one more month following her May 20, 2021 return from PDLL/CFRA leave.” (Id. at p. 556.) True, Plaintiff here may have worked remotely when she traveled to Los Angeles for work, but that does not mean she worked in Los Angeles and would have continued to work in Los Angeles. To the contrary, she worked in San Mateo and traveled to Los Angeles. Unlike the defendants in Malloy, the Defendants here never assured her she could work from Los Angeles or approved of her working from Los Angeles instead of San Mateo. While the court is aware the venue statute provides plaintiffs with a wide choice of venue and that the costs of litigation pose a formidable barrier to the filing and the prosecution of FEHA actions, Los Angeles is not the proper venue for Plaintiff’s FEHA case.

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; Code Civ. Proc., §§ 395, 397(a).) For a corporate defendant, the default venue is the corporation’s principal place of business. (Code Civ. Proc., § 395.5.) If an action or proceeding is commenced in a court other than one designated as a proper court for the trial thereof by the provisions of this title, and the same is ordered transferred for that reason, the action or proceeding shall be transferred to a proper court upon agreement of the parties by stipulation in writing, or in open

court and entered in the minutes or docket. If the parties do not so agree, the action or proceeding shall be transferred to a proper court in the county in which the action or proceeding was commenced which the defendant may designate or, if there is no proper court in that county, to a proper court, in a proper county, designated by the defendant. (Code Civ. Proc., § 398(b).)

Here, Defendants establish that Sony’s principal place of business is in San Mateo County. (Carter Decl., ¶ 5.) Justman resides in San Francisco County. (Justman Decl., ¶ 14.) Defendants’ alleged conduct took place in San Mateo County. (Carter Decl., ¶¶ 5-6; Justman Decl., ¶¶ 5, 13-18.) Defendants establish Los Angeles is not the proper venue. Further, Defendants asked Plaintiff if she would stipulate to transfer this matter to San Mateo County, but Plaintiff declined. (Horton Decl., ¶¶ 2, 4.) Thus, even if Plaintiff could have filed this action in Santa Clara County, Plaintiff lost the right to do so once she filed this action in an improper venue.

Accordingly, the Motion to Transfer Venue is GRANTED. The court orders the Complaint, filed December 16, 2024, transferred to San Mateo County. Plaintiff is to pay the transfer fees within 30 days of this order. (Code Civ. Proc., § 399, subd. (a).)

Kerry Bensinger

Judge of the Superior Court

[1] During her employment with Sony, Plaintiff was supervised at different times by at least two individuals: Curtis and defendant Justman.