Judge Malcolm Mackey, Case Number: 23STCP00999, Date: 2023-07-11 Tentative Ruling

Judge: Malcolm Mackey, Case: 23STCP00999, Date: 2023-07-11 Tentative Ruling

Case Number: 23STCP00999 Hearing Date: September 13, 2023 Dept: 55

ALVES v. DR. SHIRLEY N. WEBER, in official capacity, 23STCP00999

Hearing Date: 9/13/23, Dept. 55.

#5: MOTION TO TRANSFER ACTION.

Notice: Okay

Opposition

MP: Respondent

RP: Petitioners

Summary

On 3/28/23, petitioners filed a Petition alleging that they are elders who were defrauded by disbarred California attorney James Walker, and his Senior Care Advocates, Inc., into purchasing worthless legal services, and Respondent running the Victims of Corporate Fraud Recovery Fund, denied petitioners’ applications for payment through the fund.

MP Positions

Moving party requests an order transferring venue to Sacramento, on grounds including the following:

· Under Corporations Code section 2287, subdivision (a), this Court is not the proper venue for this action.

RP Positions

Opposing parties advocate denying, for reasons including the following:

· Venue for this petition is proper in any superior court that would have been a proper venue for the underlying judgment.

· The underlying judgment arose from a Complaint to Determine Nondischargeability of Debt (11 U.S.C. 523 & 727). See Respondent’s Request for Judicial Notice, Exhibit 1 to Declaration of Jeffrey Rich. The Complaint also contained a state law cause of action for elder abuse under Welfare and Institutions Code § 15610.30. All of those claims could also have been brought in state court, and thus venue here is proper under Corp. Code § 2287(a).

· Because the claims at issue in the underlying judgement were subject to the concurrent jurisdiction of both federal and state courts, those claims could have been brought in this court, which makes this Court a proper venue.

· Both state courts and federal courts have jurisdiction to decide a divorce nondischargeability issue.” 28 U.S.C. § 1334(b); Siragusa v. Siragusa (In re Siragusa) (9th Cir. 1994) 27 F.3d 406, 408.

· SCA regularly did business in Los Angeles County, some of the contracts at issue here were entered into in Los Angeles County and were to be performed in Los Angeles County, and some of the breaches occurred in Los Angeles County. (See Declaration of Mark Redmond in Opposition to Motion to Transfer, filed herewith (“Redmond Decl.”) at paras.11-17). Moreover, at least three of the Petitioners also reside in Los Angeles County. (Redmond Decl. at para 2).

· Petitioners’ choice of venue is presumptively correct, and the Secretary failed to meet the burden of demonstrating otherwise.

Tentative Ruling

The motion is denied.

The underlying Complaint could have been filed in Los Angeles Superior Court, having the underlying claim of elder abuse based on fraud, because invasions of legal rights occurred to plaintiffs who contracted and resided in Los Angeles County.

While the claims to determine nondischargeability based on fraud, or some claims of some plaintiffs, could not have been brought in Los Angeles Superior Court, the statutory venue provision applicable here does not require that every cause of action of every plaintiff be in the proper venue, but only the theoretical, underlying “lawsuit,” to be in a proper venue. Further, the applicable venue statute does not require consideration of the effects of bankruptcy stays, and such stays have exceptions, in any event.

“[T]he petition shall be filed in the superior court of any county within California that would have been a proper venue if the underlying lawsuit had been filed in a California state court, or in the Superior Court of the County of Sacramento.” Corp. Code § 2287(a).

Moving parties must negate all possible bases for proper venue. Buran Equip. Co. v. Sup. Ct. (1987) 190 Cal. App. 3d 1662, 1666. A motion to change venue must be supported by competent evidence. Tutor-Saliba-Perini Joint Venture v. Sup. Ct. (1991) 233 Cal. App. 3d 736, 744. A decision regarding whether to transfer venue is reviewed for abuse of discretion. Silva v. Superior Court (1981) 119 Cal.App.3d 301, 304. “Where the evidence on the motion for a change of venue is conflicting…, the judgment will not be disturbed.” Diepenbrock v. Auslen (1960) 185 Cal.App.2d 747, 751. Accord Wheeler v. Moschetti (1961) 188 Cal.App.2d 827, 829.

For purposes of laying statutory venue, liability arises where injury or a wrongful invasion of legal rights occurs. Black Diamond Asphalt, Inc. v. Superior Ct. (2003) 109 Cal. App. 4th 166, 172. “[O]bligations created by statute are separate animals from those which emanate from contract.” Ibid. at 171. Elder abuse is a statutory cause of action in California courts. Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 666.

As to actions joining corporations as defendants, venue is proper in the county of an individual defendant's residence, the corporation's principal place of business, or where the contract was made, or to be performed, or the obligation or liability arose. CCP §395.5.

"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." Brown v. Sup. Ct. (1984) 37 Cal. 3d 477, 488.

“[T]he bankruptcy court has exclusive jurisdiction to determine the nondischargeability of debts based on fraud.” Zinnemann v. Bagnol (2002) 104 Cal. App. 4th 656, 664. “[S]tate court jurisdiction would not be proper to accomplish ‘the adjustment of rights and duties within the bankruptcy process itself,’ which should be uniquely and exclusively federal (e.g., debtors' petitions, creditors' claims, disputes over reorganization plans, disputes over discharge, and such other proceedings).” Satten v. Webb (2002) 99 Cal. App. 4th 365, 384.

A judgment entered in violation of an automatic bankruptcy stay is not void but voidable by way of a challenge to the judgment. Shorr v. Kind (1991) 1 Cal. App. 4th 249, 257.

Finally, the Court’s independent, thorough research reveals that no citable and governing case interprets Corporations Code Section 2287, including with respect to venue.

ALVES v. DR. SHIRLEY N. WEBER, in official capacity, 23STCP00999

Hearing Date: 9/13/23, Dept. 55.

#5: MOTION FOR TRIAL SETTING PREFERENCE PURSUANT TO CAL. CODE OF CIV. PRO. SEC. 36.

Notice: Okay

Opposition

MP: Petitioners

RP: Respondent

Summary

MP Positions

Moving parties requests an order granting a trial setting preference, on grounds including the following:

· The primary purpose in enacting CCP Section 36 was to ensure an early trial date for persons who, because of their advanced age or serious medical problems, might die or become incapacitated before their cases come to trial. (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532, fn. 12.)

· Essentially all of the petitioners in the subject action are elders, or where they are not elders, it is because the actual elder petitioner died and the claim is being made by their heirs.

· Petitioners have serious health conditions.

RP Positions

Opposing party advocates denying, for reasons including the following:

· Because respondent’s motion to transfer is pending for hearing on 9/13/23, this Court lacks jurisdiction to hear and determine petitioners’ motion for trial preference.

Tentative Ruling

The motion is granted.

Preferential trial is set for within 120 days on February 5, 2024 at 9:00 a.m.

The Court has first ruled on Respondent’s motion to transfer venue, such that there no longer is a stay.

Motions to change venue operate as a stay of proceedings, depriving the court of jurisdiction to entertain motions, pending a ruling or transfer of the case. South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 655.

The Court finds that parties are at least 70 years of age, and have a substantial interest in the action, and health such that preference is necessary to prevent prejudice. CCP §36(a). A court has no discretion to delay a trial setting for within 120 days, after a motion for trial preference is granted. Miller v. Sup. Ct. (1990) 221 Cal.App.3d 1200, 1204; Sprowl v. Sup. Ct. (1990) 219 Cal.App.3d 777, 781; Vinokur v. Sup. Ct. (1988) 198 Cal.App.3d 500, 502. However, cases indicate that there may be a due-process violation by setting trial so early if defendants are deprived of a reasonable opportunity for discovery or pretrial preparation. E.g., Roe v. Sup. Ct. (1990) 224 Cal.App.3d 642, 643.