Judge: Michelle C. Kim, Case: 22STCV09237, Date: 2023-05-01 Tentative Ruling

Case Number: 22STCV09237    Hearing Date: May 1, 2023    Dept: 31

                                     SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Shari Cobb (“Plaintiff”) filed this action against defendants Joshua Michael Perez and Biomedical Waste Disposal, Inc. for damages arising from a motor vehicle accident that occurred in Sacramento, California on September 11, 2020.

At this time, Defendant Biomedical Waste Disposal, Inc. (“Defendant”) moves for an order transferring venue to Sacramento County Superior Court pursuant to CCP §§ 395(a) and 397(c).  Plaintiff opposes the motion, and Defendant filed a reply. 

2. Motion to Transfer Venue

Pursuant to CCP §395(a), an action for personal injuries is properly brought in the “superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action.” 

“A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.”  (CCP § 395.5.) 

Further, CCP § 397(c) states the court may change the place of trial “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” 

At the outset, the Court must discuss whose “convenience” is to be considered when determining whether a motion for change of venue should be granted.  It is only the convenience of the nonparty witnesses that is important. Absent extraordinary circumstances, the parties' conveniences are not considered—even if they are to testify.  (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.)  Thus, for example, the defendants cannot obtain a transfer solely on the ground it will be more expensive or difficult for them to defend the action in the county chosen by the plaintiff.  Additionally, convenience of counsel is not a permissible consideration on a change of venue motion.  (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 920.)  Nor is the convenience of expert witnesses who may be called to testify, but who have no personal knowledge of any facts in the case.  (See Wrin, 213 Cal. at 160.)  Nor is consideration given to the convenience of witnesses who are employees of the litigants.  (Stute v. Burinda (1981) 123 Cal.App.3d Supp. 11, 17.)  This does not apply, however, where the employee is being called to testify by the opposing party.  (See J.C. Millett Co. v. Latchford–Marble Glass Co. (1959) 167 Cal.App.2d 218, 227.)

            Pursuant to Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16-17, a party moving to change venue based on the convenience of witnesses must provide evidence showing the names of the witnesses who will testify, the substance of their expected testimony, whether they have been deposed, the reasons it would be inconvenient for them to testify in the chosen venue, and the reasons the ends of justice would be promoted by transfer.  Notably, declarations in support of a motion to transfer venue must include competent evidence. A change of venue cannot be based on affidavits consisting of hearsay and conclusions.  (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919; Tutor-Saliba-Perini Joint Venture v. Sup.Ct. (1991) 233 CA3d 736, 744.) 

However, the court is permitted to draw reasonable inferences from the evidence presented in the motion.  (Richfield Hotel Management, Inc. v. Superior Court (1994) 22 Cal.App.4th 222, 226-27.)

“Convenience of witnesses is shown by the fact that the residence of all the witnesses is in the county to which the transfer of the cause is requested. [Citation.] A conclusion that the ends of justice are promoted can be drawn from the fact that by moving the trial closer to the residence of the witnesses, delay and expense in court proceedings are avoided and savings in the witnesses' time and expenses are effected. [Citation.] [¶] Where there is a showing that the convenience of witnesses and the ends of justice will be promoted by the change and there is absolutely no showing whatever to the contrary, a denial of the motion to change venue is an abuse of discretion, there being no conflict of evidence to sustain the decision of the trial court. [Citations.]”

(Id., supra, at 227, citing Pearson v. Superior Court (1962) 199 Cal.App.2d 69, 77-78.) 

A plaintiff is entitled to the presumption that it has brought the action in a proper county, and the burden to secure a change of venue is on the defendant.  (J. C. Millett Co. v. Latchford-Marble Glass Co. (1956) 144 Cal.App.2d 838, 839; see also Sequoia Pine Mills, Inc. v. Superior Court (1968) 258 Cal.App.2d 65, 69 [“the presumption is that the defendants are residents of the county wherein the action is commenced, and the burden of proof is cast upon them to show that they were at the commencement of the action residents of another county …”].) 

Here, Defendant provides that its principal place of business is in North Hollywood, California, which is located within Los Angeles County.  Defendant, however, moves to transfer venue to Sacramento County on the grounds that the convenience of witnesses and ends of justice will be promoted by the change because the subject accident occurred in Sacramento County, many of the independent witnesses reside in Sacramento County, and Los Angeles County is an inconvenient forum for these witnesses.  Defendant asserts that all of Plaintiff’s medical providers, except one, and her employer are in Sacramento County, so transferring this action to Sacramento County would avoid severe personal and financial impositions for the witnesses in being called to trial in Los Angeles County.  Further, Defendant contends that Plaintiff lives in Sacramento County.

In opposition, Plaintiff contends that Defendant does not dispute that Los Angeles County is a proper venue, and that Defendant does not satisfy its burden for transferring venue under CCP § 397(c).  Plaintiff contends that Defendant fails to submit any declarations from independent witnesses, and that the physician that performed the most significant medical treatment on Plaintiff, Dr. Andrew Fox, has his main office in Los Angeles County.  Additionally, Plaintiff argues that remote depositions of the other witnesses can ease the inconvenience for any witnesses. 

In reply, Defendant avers that moving the trial closer to nearly all the witnesses will promote the ends of justice.  Defendant further asserts that that none of the pandemic related statutory changes concerning remote depositions supersede CCP § 397(c). 

With the motion, Defendant submits a declaration from defense counsel identifying 17 medical providers that Plaintiff treated with in Sacramento County for injuries relating to the accident.  (Mot. Sisemore Decl. ¶ 6.)  Defense counsel attests that they have confirmed that most of these providers are located in Sacramento County.  One medical provider is located in Placer County, which is adjacent to Sacramento County, and Defendant confirmed that Dr. Fox has an office in Sacramento County that he goes to once a month.  Additionally, the last employer identified by Plaintiff is located in Sacramento County.  Plaintiff does not dispute any of this information regarding the witnesses.  While Plaintiff asserts that Dr. Fox’s main office is in Los Angeles County, Plaintiff does not deny that she was treated by Dr. Fox in Sacramento County, or that Dr. Fox already travels there once a month. 

Furthermore, although Defendant did not submit declarations from the witnesses, the Court is permitted to draw reasonable inferences from the evidence presented.  (Richfield Hotel Management, 22 Cal.App.4th at 226-27.)  In this case, the reasonable inference from the evidence shows that the subject accident occurred in Sacramento County, Plaintiff resides in Sacramento County, and Plaintiff’s treating physicians are all in or near Sacramento County or have an office there.  Plaintiff merely contends that the inconvenience to the witness can be lessened through remote depositions, but this relies on speculation that the witnesses will all be amenable to remote depositions and otherwise would suffer no hardship in traveling to Los Angeles County for trial.  The only evidence submitted shows all witnesses are located in Sacramento County, which supports the conclusion that the ends of justice are promoted by moving trial closer to the residence of all witnesses and avoiding delay and expense in court proceedings.  (Id. at 227.)  There is otherwise no showing the convenience of witnesses and the ends of justice will not be promoted by transferring this action.  (Id.) 

            Based on the foregoing, Defendant’s motion is granted. 

CCP § 399(a) states in pertinent part, “[i]f the transfer is sought on any ground specified in subdivision (b), (c), (d), or (e) of Section 397, the costs and fees of the transfer, and of filing the papers in the court to which the transfer is ordered, shall be paid at the time the notice of motion is filed by the party making the motion for the transfer…”

             This motion was made per §§397(c).  If Defendant did not pay the transfer fees at the time they filed the motion, they must do so within five days. 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 1^st day of May 2023