Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV01955, Date: 2023-07-11 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV01955, Date: 2023-07-11 Tentative Ruling

Case Number: 22SMCV01955 Hearing Date: July 11, 2023 Dept: N

TENTATIVE RULING

Defendants David Leavitt, Kaci Vanderhoek, and Caroline Leavitt’s Motion for Transfer Act to San Diego County Superior Court is GRANTED.

Pursuant to Code of Civil Procedure section 399, all required costs and fees of transfer shall be paid by Plaintiffs Mitra K. Esensten as Trustee of the Karubian 2021 Irrevocable Trust, Mitra K. Esensten, as an individual, and Sydney J. Esensten and Plaintiffs’ counsel within five (5) days after service of notice of the transfer order.

Defendants David Leavitt, Kaci Vanderhoek, and Caroline Leavitt to give notice.

REASONING

Upon motion, the Court may change the place of trial “[w]hen the court designated in the complaint is not the proper court” or “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” (Code Civ. Proc., § 397, subds. (a), (c).) Here, Defendants David Leavitt, Kaci VanderHoek, and Caroline Leavitt (“Defendants”) argue that they reside in San Diego County, the joinder of three individual defendants in this action supports transferring this action, and this action was not filed in the proper court because there is a venue selection clause in the estate sale agreement between the Karubian 2021 Irrevocable Trust (“the Trust”) and Antique and Estate Jewelry Ltd. which provides for disputes to be resolved in the “North San Diego County.” (Compl. ¶ 35, Ex. B, at p. 2.) However, the contract only states that “[t]his agreement and arbitration will take place in California – North San Diego County.” (Ibid.) While this provision clearly shows that arbitration would take place in San Diego County, it does not state that San Diego County is the proper venue for all disputes. The agreement is vague as to the meaning of “[t]his agreement,” and Defendants point to no other provisions of the agreement to indicate the parties agreed that any disputes or litigation arising from the agreement would be brought in San Diego County. Thus, the Court finds this is not a proper basis to transfer this action.

As to the corporate defendants, pursuant to Code of Civil Procedure section 395, subdivision (a), “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,” and as to a corporate entity, Code of Civil Procedure section 395.5, states that “[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.”

The parties agree that the contract was performed in Los Angeles County, such that venue is proper in Los Angeles County as to the corporate defendants. Nonetheless, Defendants argue that all individual Defendants reside in San Diego County, and Plaintiffs have alleged claims beyond mere breach of contract, such that transfer is proper here. Plaintiffs do not dispute that Defendants are residents of San Diego County. Rather, Plaintiffs argue that Defendants’ county of residence is not the preferred place of trial over the county in which the parties entered into the contract or performed under the same. The Court is not so convinced. Put simply, if this action was only one for breach of contract, Plaintiffs’ argument would make venue proper in Los Angeles County. However, Plaintiffs opted to include various tort claims in their pleading; thus, the Court cannot consider only where the parties entered into the contract or where it was performed.

The present action is one properly classified as a “mixed action.” “In a mixed action, a plaintiff alleges two or more causes of action each of which is governed by a different venue statute. Or, two or more defendants are named who are subject to different venue standards.” (Brown v. Superior Court¿(1984) 37 Cal.3d 477, 488.) “In cases with mixed causes of action, a motion for change of venue must be granted on the entire complaint if the defendant is entitled to a change of venue on any one cause of action.” (Ibid.) It is axiomatic that “actions sounding in tort (severe humiliation, anguish, emotional distress and trauma) are not encompassed within the limited statutory language of section 395 so as to justify grounding venue on them” (Cubic Corp. v. Superior Court (1986) 186 Cal.App.3d 622, 625), and “an action based upon injury to person or personal property which is not a physical injury, such as libel, malicious prosecution and false imprisonment, is triable solely at the defendant’s residence.” (Johnson v. Superior Court (1965) 232 Cal.App.2d 212, 218.)

Plaintiffs argue that the location of the incident, Los Angeles County, should be the proper venue because “other factors” can outweigh the mixed action rule placing venue in individual defendants’ county of residence, but Plaintiffs provide no legal authority to support this contention. Plaintiffs’ First Amended Complaint does not change the Court’s analysis in any way. Thus, the Court finds it is proper to transfer this action to San Diego County given Plaintiffs’ inclusion of claims sounding in tort. Accordingly, Defendants David Leavitt, Kaci Vanderhoek, and Caroline Leavitt’s Motion for Transfer Act to San Diego County Superior Court is GRANTED. Pursuant to Code of Civil Procedure section 399, all required costs and fees of transfer shall be paid by Plaintiffs Mitra K. Esensten as Trustee of the Karubian 2021 Irrevocable Trust, Mitra K. Esensten, as an individual, and Sydney J. Esensten and Plaintiffs’ counsel within five (5) days after service of notice of the transfer order.

Evidentiary Objections

Defendants object to certain statements within the declarations of Mitra K. Esensten and Sydney J. Esensten. The Court declines to rule on these objections, as they were not material to the Court’s ruling herein.