Judge: Mark C. Kim, Case: 22LBCV00174, Date: 2022-10-20 Tentative Ruling

Case Number: 22LBCV00174    Hearing Date: October 20, 2022    Dept: S27

1.     Background Facts

Plaintiff, Dennis Cooper filed this action against Defendants, Tyler Morgan Cooper, Jessica Naughton, Loren Castro, and all persons claiming an interest in the subject property.  Plaintiff filed his complaint on 4/15/22.  The complaint includes causes of action for conversion, constructive fraud, declaratory relief, breach of contract, breach of fiduciary duty, quiet title, cancellation of instruments, constructive trust, unjust enrichment, aiding and abetting, accounting, and financial elder abuse.  Only the declaratory relief, breach of contract, and aiding and abetting causes of action are pled against Castro. 

 

The crux of the complaint is that his son, daughter-in-law, and former attorney (for Plaintiff, not Defendants) colluded to defraud him out of life investments in real property in the amount of $12 million. 

 

2.     Motion to Transfer Venue

a.     Procedural History

Castro (Plaintiff’s former attorney) filed this motion to transfer venue on 5/23/22.  Castro seeks an order transferring this action to Orange County.  On 6/08/22, Plaintiff dismissed Cooper and Naughton from the case, leaving only Castro as a defendant.

 

b.     Notices of Related Cases

On 8/31/22, Plaintiff filed a notice of related cases.  In the notice, he indicates this case and 18LBCV00022 are both pending in front of Judge Vicencia, and seeks an order deeming them related.  He indicates such order is necessary because he is elderly and cannot defend a case in Orange County, among other reasons.  On 9/12/22, Castro filed an opposition to false statement contained in notice of related cases, wherein he notes that 18LBCV00022 is not “pending,” and instead has been dismissed.  On 9/15/22, Plaintiff filed an amended notice of related cases, wherein he again indicates the two cases are both assigned to Judge Vicencia, but does note that the earlier case has been dismissed. 

 

Both notices of related cases are incorrect.  Judge Vicencia in Department S26 was assigned to 18LBCV00022, which was dismissed on 9/10/19.  Plaintiff has a motion to vacate the dismissal of 18LBCV00022 scheduled for 10/20/22, the same day as the hearing on this motion to transfer venue.  This case, however, is pending before Judge Kim in Department S27.  Because this case is not the lower-numbered case, this court will take no action concerning the notice of related cases. 

 

c.     Analysis

Castro moves to transfer venue to Orange County.  Castro contends transfer is proper due to the parties’ choice of venue agreement, and also pursuant to statute. 

 

Castro provides evidence that Plaintiff settled the prior action (18LBCV00022) with Cooper and Naughton in 2019, and the settlement agreement and release includes a provision stating, “Any claim or action arising out of or relating to this Agreement, or an alleged breach thereof, shall be brought in the Superior Court of the State of California, County of Orange."  Castro provides evidence that he drafted the trust that was formed in connection with the settlement agreement.  He therefore contends this litigation is subject to the choice of venue provision, and the case should be transferred to Orange County.  Castro concedes he was not a party to the settlement contract, but provides authority for the position that a forum selection clause (which he analogizes to a venue selection clause) may be enforced by a non-signatory to the contract who is closely related to the relationship involved.  See Bancomer S.A. v. Superior Court (1996) 44 Cal.App.4th 1450.  Because all claims against Castro arise out of the subject contract, the Court finds these authorities analogous.  

 

Pursuant to Alexander v. Superior Court (2003) 114 Cal.App.4th 723, 731, because the venue statutes declare California public policy with respect to the proper court, agreements fixing venue in some county other than that allowed by statute are unenforceable as contrary to public policy.  However, pursuant to Battaglia Enterprises, Inc. v. Superior Court (2013) 215 Cal.App.4th 309, 315, the venue agreement can be given effect so long as the designated venue is one of the statutorily permissible counties.  Thus, the Court must determine if Orange County is a statutorily permissible county for venue in this action. 

 

Castro relies on CCP §395.5 to show venue is proper in Orange County.  §395.5 makes venue against a corporation or association proper in the county where a contract is made, performed, breached, etc.  Defendant is not a corporation or association, and therefore this provision does not apply to him.  He argues the contract for representation was made with his professional corporation, but he is not being sued in his capacity as a professional corporation. 

It appears Defendant should be relying on §395(a), which makes venue in a breach of contract action proper in the county where the defendant resides, or where the contract was entered into, or where it was to be performed.  Castro failed to show he does not reside in LA County, and therefore failed to meet his burden to show venue is improper in Los Angeles County.  However, under Battaglia, because Castro showed that Orange County is one of the permissible venues (because the contract at issue was entered into there), the choice of venue agreement may be given effect. 

 

Any opposition to the motion was due on or before 10/06/22.  Plaintiff has not filed opposition to the motion.  Plaintiff indicates, in his notice of related cases and amended notice of related cases, that he intends to oppose the motion to transfer venue.  He has not, however, actually done so.  Also, it is apparent from the language in the notice of related cases that Plaintiff believes an order relating the cases would preclude the Court from issuing an order transferring venue to Orange County.  This is incorrect.  The cases would not be consolidated, and there is nothing in the related cases statutes that precludes a related case from being transferred to another county if all requirements for transfer are met.  In light of the lack of opposition, the motion is granted. 

 

The remaining issue is which party should be ordered to pay the transfer fees and costs.  If a motion is granted because the plaintiff filed in the “wrong court,” then the plaintiff must pay the fees. See CCP §399(a).  If a motion is brought on convenience grounds, then the defendant must post the fees when he files the motion.  See also §399(a).  Notably, it does not appear Defendant posted fees when he filed the motion.  Defendant failed to show the venue is “wrong,” as discussed above, because he failed to provide evidence concerning where he lives.  On balance, the Court orders Defendant to pay the transfer fees and costs.  Defendant must do so within thirty days.  If Defendant fails to do so, then the case will remain in Los Angeles County Superior Court. 

 

3.     Case Management Conference

The parties are reminded there is a CMC on calendar today concurrently with the hearing on the motion to transfer venue.  The Court asks Counsel to make arrangements to appear remotely at the CMC and hearing on the motion.