Judge Melvin D. Sandvig, Case 22CHCV01176 2023-03-27 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV01176, Date: 2023-03-27 Tentative Ruling

Case Number: 22CHCV01176 Hearing Date: March 27, 2023 Dept: F47

Dept. F47

Date: 3/27/23

Case #22CHCV01176

MOTION FOR CHANGE OF VENUE

Motion filed on 1/11/23.

MOVING PARTY: Defendant Raul Taborga

RESPONDING PARTY: Plaintiff Five Points Trading Corp.

NOTICE: ok

RELIEF REQUESTED: An order pursuant to CCP 395, et seq. transferring this action to the Superior Court of the State of California in the County of Santa Barbara – Santa Maria Branch, Cook Division on the ground that under CCP 397(a), the Court designated in the complaint is not the proper court. Additionally, Defendant Raul Taborga requests that Plaintiff and/or its counsel pay all transfer fees and costs incurred in this case pursuant to CCP 396b(b), including the first appearance fee and filing fee for this motion in the amount of $446.96, or more according to proof.

RULING: The motion is granted, in part, and denied, in part, as set forth below.

On 11/17/22, Plaintiff Five Points Trading Corp (Plaintiff), represented by the Law Office of A.J. Glassman, filed this action against Defendants Raul Taborga (Taborga), Central Valley Organic Crop Solutions, LLC (Central Valley) and Does 1-50: for (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing, (3) Conversion, (4) Intentional Interference With Contractual Relations, (6) Intentional Interference With Prospective Economic Relations and (7) Negligent Interference With Prospective Economic Relations.

On 1/11/23, Taborga filed the instant motion seeking an order pursuant to CCP 395, et seq. transferring this action to the Superior Court of the State of California in the County of Santa Barbara – Santa Maria Branch, Cook Division on the ground that under CCP 397(a), the Court designated in the complaint is not the proper court. Additionally, Taborga requests that Plaintiff and/or its counsel pay all transfer fees and costs incurred in this case pursuant to CCP 396(b), including the first appearance fee and filing fee for this motion in the amount of $446.96, or more according to proof. On 2/16/23, Plaintiff filed a substitution of attorney indicating that Plaintiff is representing itself and lists Luis A. Castillo (Castillo) as the new legal representative with the same address as Plaintiff’s former attorney, but with a different phone number. (See 2/16/23 Substitution of Attorney, caption and No.2.c. and d.). No state bar number is listed for Castillo on the substitution of attorney form. (See 2/16/23 Substitution of Attorney, No.2.b.). The motion indicates that Castillo is Plaintiff’s “agent.” (See Motion, p.3:11). If Mr. Castillo is not an attorney, he cannot represent Plaintiff, a corporation, in court. See Merco Construction Engineers, Inc. (1978) 21 C3d 724. No opposition to the motion has been filed.

The Court may, on motion, change venue when the court designated in the complaint is not the proper court. See CCP 397(a).

Venue is determined based on the complaint on file when the motion for change of venue is made. Dow AgroSciences LLC (2017) 16 CA5th 1067, 1076. For venue purposes, civil actions are classified as local or transitory. If the relief sought is personal, the action is transitory. Brown (1984) 37 C3d 477, 482, n.5. An action for breach of contract may be tried in the county where the contract is to be performed, the county where the contract was entered, or the county where any of the defendants reside. See CCP 395(a).

Taborga contends that he never signed the agreement attached to the complaint and attaches copies of email communications he claims are from Plaintiff acknowledging that as of 6/17/22 no signed agreement existed. (See Taborga Decl. and Ex.1 thereto; Complaint ¶6, Ex.A).

Taborga contends that he and Castillo met at a restaurant in Santa Maria, California to discuss an employment relationship and reached an oral agreement in Santa Maria. (See Taborga Decl.). Taborga resides in San Luis Obispo County. (Complaint ¶2). As noted above, Plaintiff has not opposed or otherwise responded to the motion.

Based on the foregoing, the request to transfer this action to the Superior Court of the State of California in the County of Santa Barbara – Santa Maria Branch, Cook Division is granted. Plaintiff is ordered to pay all transfer fees pursuant to CCP 399(a). The request that Plaintiff and/or its counsel pay all costs incurred in this case pursuant to CCP 396b(b), including the first appearance fee and filing fee for this motion in the amount of $446.96, or more according to proof, is denied.

CCP 396b(b) provides:

“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. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party's papers, or on the court's own noticed motion, and after opportunity to be heard.”

While Taborga’s counsel’s efforts to resolve the issue presented by this motion informally went unanswered, it does not appear that this venue was selected in bad faith based on the facts and law. Additionally, while it is not known why Plaintiff’s counsel substituted out of the case, since he is no longer Plaintiff’s counsel, he has no ability to agree to or influence Plaintiff to agree to the transfer. Further, it is not clear why Taborga would be entitled to recover his first appearance fee from Plaintiff. Finally, neither the motion nor the declaration of counsel breakdown the filing fee for the instant motion from the first appearance fee. (See Motion p.2:1-4; Juarez Decl. ¶4).