Judge Mark E. Windham, Case 22STLC01223 2022-09-20 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC01223, Date: 2022-09-20 Tentative Ruling

Case Number: 22STLC01223 Hearing Date: September 20, 2022 Dept: 26

MOTION TO CHANGE VENUE

(CCP §§ 395, 396)

TENTATIVE RULING:

Defendants Barbi Walters, Layne Povey, Lyndsey Moore and Lynden Lane Co., LLC’s Motion to Transfer Action and for Expenses and Fees is GRANTED. THE ACTION IS TO BE TRANSFERRED TO THE SUPERIOR COURT OF ORANGE COUNTY. DEFENDANTS ARE AWARDED ATTORNEY’S FEES OF $2,250.00 AND COSTS OF $60.00, TO BE PAID BY PLAINTIFF’S COUNSEL OF RECORD WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

DEFENDANTS ARE TO FILE A PROPOSED ORDER WITHIN 10 DAYS OF THIS ORDER.

THE RESERVATIONS FOR THE MOTION TO TRANSFER ACTION ON SEPTEMBER 21, 2022 ARE ADVANCED TO THIS DATE AND VACATED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for breach of contract, fraud, and related claims.

RELIEF REQUESTED: Defendants move to transfer venue of this action to the Superior Court of Orange County. Los Angeles County is not the proper court for trial of this action because the law favors trial in the county of Defendants’ residence, which is Orange County. In a mixed action, such as this one, a motion for change of venue must be granted if it is proper as to any defendant. For forcing Defendants to bring this Motion, Plaintiff should be sanctioned in the amount of $3,622.50.

OPPOSITION: As this action concerns a contract for personal services, this court is the correct venue based on Defendant’s place of residence and the location the contract was executed. If a contract was entered into in the county in which the action was filed, the plaintiff is entitled to have the action that contract tried in that county, despite the defendant’s residence in another county.

REPLY: The opposition does not address the arguments in the Motion to Change Venue, nor the allegations in Plaintiff's own Complaint. The special venue provisions in section 395(b) are inapplicable because Plaintiff did not provide any affidavit, nor verified Complaint.

ANALYSIS:

Plaintiff Jennifer Conniff (“Plaintiff”) filed the instant action against Defendants Lynden Layne Co. LLC (“Defendant Lynden Layne”), Barbara Walters (“Defendant Walters”), Layne Povey (“Defendant Povey”), Lyndsey Moore (“Defendant Moore”) on February 22, 2022. The Complaint alleges causes of action for (1) breach of contract; (2) unjust enrichment; (3) conversion; (4) fraudulent misrepresentation; (5) concealment; (6) false promise; (7) breach of fiduciary duty; and (8) breach of implied covenant of good faith and fair dealing.

Defendants filed the instant Motion to Transfer Action and for Award of Expenses and Fees on May 3, 2022. Plaintiff filed an opposition on September 6, 2022 and Defendants replied on September 13, 2022.

Discussion

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Superior Court of Alameda County (1984) 37 Cal.3d 477, 482.) Plaintiff’s choice of venue is presumptively correct, and Defendant bears the burden of demonstrating that venue is not proper there. (Battaglia Enterprises, Inc. v. Superior Court of San Diego County (2013) 215 Cal.App.4th 309, 313-14.)

Defendants move pursuant to Code of Civil Procedure, section 395, which states in relevant part:

Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, 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. . . . if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary.

(Code Civ. Proc., § 395, subd. (a).) Defendants also point out that breach of contract and fraud causes of action are “transitory” and therefore subject to the general venue rule set forth in Code of Civil Procedure section 395, subdivision (a). (Cholakian & Associates v. Superior Court (2015) 236 Cal.App.4th 361, 368 [“Ordinarily, the proper county for trial of a transitory action is the county in which the defendants or some of them reside.”]; Thielen v. Superior Court of Los Angeles County (1963) 219 Cal.App.2d 217, 221; Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469.) This rule holds unless there is an exception to the general venue rule. (Cholakian & Associates, supra, 236 Cal.App.4th at 368.)

In opposition, Plaintiff points to Code of Civil Procedure section 395, subdivision (b), which creates an exception to the general venue provision for contracts primarily intended for personal use. Plaintiff argues that this action concerns a contract for wedding services, which falls within this exception. However, the opposition does not discuss the existence of the fraud causes of action, which are subject to a different venue rule. Accordingly, this is a “mixed action” subject to its own special rules:

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. (See Grossman & Van Alstyne, supra, at p. 389.) “The identifying characteristic of mixed actions is that two or more inconsistent venue provisions ... appear to be concurrently applicable in the same case.” (Ibid.)

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. Superior Court (1984) 37 Cal.3d 477, 488.) Despite this point being raised in the Motion, Plaintiff’s opposition provides no discussion of the fraud causes of action and the venue rules to which they are subject. Due to the fraud allegations, Defendants are entitled to have the action tried in the county of their residence. (Cholakian & Associates, supra, 236 Cal.App.4th at 368; Quick v. Corsaro (1960) 180 Cal.App.2d 831, 834.) Defendants Walters, Povey, and Moore are residents of Orange County. (Motion, Walters Decl., ¶3; Povey Decl., ¶3; Moore Decl., ¶3.) Nor do the venue rules applicable to Defendant Lynden Layne compel a different result. (Brown, supra, 37 Cal.3d at 482 n. 6.) The entire action, therefore, must be transferred to Orange County.

Finally, Defendants request an award of attorney’s fees and costs pursuant to Code of Civil Procedure section 396b, subdivision (b), which states in relevant part: “In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action.” (Code Civ. Proc., § 396b, subd. (b).) Based on a lodestar calculation, Defendants are entitled to attorney’s fees in the amount of $2,250.00 and costs of $60.00. (Motion, Rothman Decl., ¶12.)

Conclusion

DEFENDANTS ARE TO FILE A PROPOSED ORDER WITHIN 10 DAYS OF THIS ORDER.

THE RESERVATIONS FOR THE MOTION TO TRANSFER ACTION ON SEPTEMBER 21, 2022 ARE ADVANCED TO THIS DATE AND VACATED.

Moving party to give notice.