Judge Michael Small, Case Number: 24STCV26563, Date: 2025-02-04 Tentative Ruling

Judge: Michael Small, Case: 24STCV26563, Date: 2025-02-04 Tentative Ruling

Case Number: 24STCV26563 Hearing Date: February 4, 2025 Dept: 57

In this employment action, Maribel Gonzalez (“the Plaintiff”) sued Avanath Realty, Inc.; CA Capital Operations, LLC; Avanath Capital Management, LLC; Avanath Capital Partners, LLC; and Avanath Capital Holdings, LLC (collectively, “the Defendants”), for discrimination on the basis of a disability, harassment, and retaliation in violation of the Fair Employment and Housing Act (“FEHA”), the California Family Rights Act (“CFRA”), and Labor Code Section 1102.5. The plaintiff also asserts a common law claim that Defendants wrongfully terminated her in violation of public policy.

The plaintiff alleged in her complaint that the venue for this action was proper in Los Angeles County under FEHA’s venue provision. Defendants disagree and have moved to transfer the venue to Orange County. The Court is granting the Defendants’ motion. In reaching that decision, the Court considered the declaration of Pat Gaudin in support of the Defendants’ motion and is overruling the Plaintiff’s objections to that declaration. The Court also considered Plaintiff’s declaration that she submitted with her brief in opposition to the Defendants’ motion. The Court did not consider the declaration of Liz Torres that Defendants submitted along with their reply brief.

FEHA’s venue provision states that a FEHA action to redress an unlawful employment practice may be brought “in any county in [California] in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked . . . but for the alleged unlawful practice.” (Government Code, § 12965, subd. (c)(3).).) FEHA’s venue provision “controls in cases in which FEHA claims are joined with non-FEHA claims arising from the same facts.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 487.) Accordingly here in this action, the proper venue for Plaintiff’s CRFA, Labor Code, and common law claims is where the venue for her FEHA claims properly lies.

Whether venue is analyzed through the prism of FEHA’s venue provision or the Code of Civil Procedure’s general venue provision (Section 395(a)), there is a presumption that the plaintiff’s selection of the venue is proper; the defendant bears the burden of demonstrating that it is not. (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) In the Court’s view, the Defendants have carried their burden of demonstrating that the Plaintiff’s selection of Los Angeles County for the venue of her action was wrong under FEHA’s venue provision and that the proper venue for the action is Orange County.

The Gaudin Declaration states that (1) the Defendants are headquartered in Orange County; (2) throughout her employment, Plaintiff was assigned and reported to, and worked at, the Defendants’ Orange County headquarters; (3) all decisions regarding Plaintiff’s employment were made by employees of the Defendants who worked in Orange County; and (4) all the records and evidence regarding Plaintiff’s employment with Defendants are located in Orange County. The Gaudin Declaration also states that the Defendants never authorized the Plaintiff to work remotely from her home, which was (and remains) in Los Angeles County.

Plaintiff’s declaration does not overcome the facts set forth in the Gaudin Declaration regarding this action’s myriad ties to Orange County. Plaintiff contends, however, that contrary to what Gaudin says, Plaintiff’s supervisor, Liz Torres, authorized her to work remotely from home in Los Angeles County on Fridays, and, most critically to her position that venue is proper in Los Angeles County, she would have worked remotely from her home in Los Angeles County full time had the Defendants complied with FEHA and accommodated her request to do so on account of her asserted disability. In making this contention, Plaintiff relies on Malloy v. Superior Court (2022) 83 Cal.App.5th 543 [“Malloy”], which construed the “would have worked” clause in FEHA’s venue provision. In the Court’s view, Malloy is inapposite.

In Malloy, the plaintiff worked remotely full-time from her home in Los Angeles County and was authorized to do so by the defendant, which was headquartered in Orange County. The plaintiff sued the defendant alleging that she was terminated by the defendant based on her pregnancy in violation of FEHA. The plaintiff asserted that venue was proper in Los Angeles County under FEHA’s venue provision because she would have continued to work remotely from her home in Los Angeles as authorized had she not been fired due to her pregnancy. The Court of Appeal agreed with the plaintiff and reversed an order granting the defendant’s motion to transfer the venue to Orange County. (Malloy, supra, 83 Cal.App.5th at pp. 556-557.)

In contrast to the employee’s remote work arrangement in Malloy, the Plaintiff here was not authorized to work remotely full-time from her home. At most, based on her declaration, the Plaintiff was authorized to work remotely from her home in Los Angeles County just once a week. Malloy does not support Plaintiff’s contention that the “would have worked” clause in FEHA’s venue provision establishes that venue is proper in Los Angeles County by dint of the Defendants’ alleged violation of FEHA through their denial of her request for an accommodation to work remotely full-time. If Plaintiff’s construction of that clause were correct, then an aggrieved employee could sue an employer in any county in California regardless of where the employer is based and regardless of where the alleged discriminatory actions were carried out so long as the employee asserts that he or she would have worked in that county if the employer had not taken an adverse action against him or her. To be sure, FEHA’s venue provision is intended to facilitate the ability of persons with FEHA claims to vindicate their rights by providing them with a broad selection of possible venues. (Malloy, supra, 83 Cal.App.5th at p. 546.) This does not mean, however, that an employee can sue an employer any place in the state where the employee says he or she would have worked but for the employer’s discriminatory act. Nor does Malloy support Plaintiff’s contention that venue is proper in Los Angeles County because she also often worked outside of the regular business day’s hours, at night and on weekends, from her home there.

That Plaintiff may have made work-related visits to some of the Defendants’ properties in Los Angeles County does not alter the venue equation. Even on Plaintiff’s own account of these visits, there is nothing in her declaration to suggest that any of the allegedly unlawful practices over which she is suing occurred during the visits.

All told, venue is improper in Los Angeles County. The action should have been brought in Orange County. The Court is ordering that the action be transferred there.

“If transfer is ordered on the ground that plaintiff filed in the ‘wrong court,’ plaintiff is responsible for paying the costs and fees of transferring the action to whichever county the court orders, within 30 days after service of notice of the transfer order.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 3:589.) The Court is ordering the Plaintiff to pay the costs and fees of the transfer to Orange County within 30 days of the notice of the transfer order. The Court is, however, declining to order the Plaintiff to pay the Defendants the fees and costs they incurred in connection with the transfer motion under Code of Civil Procedure Section 396b(b). In the Court’s view, Plaintiff had a good faith basis to bring the action in Los Angeles County even though the Court concluded that the selection of that venue was incorrect. Accordingly, an award of fees and costs is unwarranted.