Judge: Michelle Williams Court, Case: 20STLC03019, Date: 2023-05-11 Tentative Ruling

Please notify Dept. 1’s courtroom staff by email (SMCDept1@lacourt.org) or by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion.  If you submit on the tentative, you must immediately notify the other side that you will not appear at the hearing.  If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motion.  Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

 

Case Number: 20STLC03019    Hearing Date: May 11, 2023    Dept: 1

20STLC03019            MANHATTAN FLOOR COVERING, INC. vs MAUREEN MCCOOL

Defendant Maureen McCool’s Motion to Transfer Matter to the South Central District

TENTATIVE RULING:  The motion is DENIED.

Background

On April 3, 2020, Plaintiff Manhattan Floor Covering, Inc. dba Servpro of Redondo Beach filed a limited civil action against Defendant Maureen McCool arising out of McCool’s alleged failure to pay for services rendered by Plaintiff. The complaint alleges McCool has an outstanding balance of $11,604.38. The complaint asserts causes of action for: (1) breach of contract; (2) open book account; and (3) account stated.

On April 22, 2021, McCool filed a cross-complaint against Interinsurance Exchange of the Automobile Club and Manhattan Floor Covering, Inc. dba Servpro of Redondo Beach asserting causes of action for: (1) breach of written contract; (2) breach of implied obligation of good faith and fair dealing; (3) conversion; (4) negligence; and (5) negligent hiring, retention and supervision. The cross-complaint alleged Interinsurance Exchange of the Automobile Club failed to provide insurance benefits to McCool and failed to properly investigate her claim. McCool also alleged Manhattan Floor Covering removed personal property from her home but did not return it and damaged the interior of the home.

On July 26, 2021, McCool dismissed Interinsurance Exchange of the Automobile Club without prejudice.

On February 23, 2023, the court issued an order granting Plaintiff Manhattan Floor Covering, Inc. dba Servpro of Redondo Beach’s motion for summary adjudication as to the second cause of action for open book account and third cause of action for account stated. On March 15, 2023, Servpro dismissed the first cause of action without prejudice.

On March 23, 2023, Judge Katherine Chilton issued an order striking statement of disqualification; verified answer in response to a “Motion/Affidavit Re to Recuse Judge Katherine Chilton for Legal Incompetence; and Under CCP Sections 170.1 and 170.6 for Just Cause and Prejudice” submitted by McCool.

On March 23, 2023, McCool filed a first amended cross-complaint adding The Bucklin Law Firm as a cross-defendant and asserting eight causes of action. The caption of the first amended cross-complaint included the statement “currently classified as a limited jurisdiction matter per CCP section 403.030 to be reclassified as unlimited jurisdiction by this cross-complaint.”

On March 30, 2023, the clerk issued a notice of reclassification and the action was reassigned from Judge Katherine Chilton in Department 25 of the Spring Street Courthouse to Judge Gregory Keosian in Department 61 of the Stanley Mosk Courthouse.

On April 11, 2023, Servpro filed a motion to strike the first amended complaint and vacate the notices of reclassification and reassignment, which is set for hearing on May 24, 2023.

Motion

On April 6, 2023, McCool filed a motion to transfer this action from the Central District of the Los Angeles Superior Court to the South Central District.

Opposition

In opposition, Servpro contends the motion hearing should be continued pending a ruling on its motion to strike and vacate the reclassification order and argues McCool failed to meet her burden on the merits.

Reply

On May 4, 2023, McCool filed a reply declaration without an accompanying reply memorandum, an intentional decision by McCool. (McCool Reply Decl. ¶ 3.)

The Court does not consider McCool’s improper reply evidence. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”); Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1089 (“New evidence is generally not permitted with reply papers.”).)

Motion to Transfer Between Districts

Standard

LASC Local Rule 2.3(b)(2) authorizes Department 1 to transfer civil cases from one judicial district to another, including when the case was filed in an improper district, or for the convenience of witnesses or to promote the ends of justice. (LASC Local Rule 2.3(b)(2).)

Considering that the same language appears in both LASC Local Rule 2.3(b)(2) and Code of Civil Procedure section 397(c), the Court finds that a party acting under the authority of Los Angeles Superior Court Local Rule 2.3(b)(2) should bear the burden of proof if they seek a district transfer out of a presumptively correct forum, just as in motions for change of proper venue pursuant to Code of Civil Procedure section 397(c). (See Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401.) That burden of proof calls for affidavits that contain more than generalities and conclusions. (See Hamilton v Superior Court (1974) 37 Cal. App.3d 418, 424.) If the motion is based upon the convenience of witnesses, such affidavits or declarations, like those for change of venue under Code Civ. Proc. section 397(c), must show the name of each witness, the expected testimony of each witness, and facts showing why the attendance of said witnesses at trial would be inconvenient or why the ends of justice would be served by a transfer. (See Stute v. Burinda (1981) 123 Cal. App. 3d Supp. 11, 17.) Convenience to non-party witnesses, not the convenience of parties or of the parties’ own employees, is the relevant consideration.  (Ibid. See also J. C. Millett Co. v. Latchford-Marble Glass Co. (1959) 167 Cal.App.2d 218, 227 (“While generally the convenience of the employees of either party will not be considered [Citations], when such employees are being called by an adverse party, the court may properly consider their convenience.”).)

McCool Failed to Demonstrate a Transfer is Warranted

McCool’s motion seeks a transfer to the South Central District. (Mot. at 14:6-8.) The only courthouse within the South Central District is the Compton Courthouse. (LASC Local Rule 2.2(b).) In opposition, Servpro contends McCool failed to meet her burden on the merits. (Opp. at 4:10-25.)

As noted above, Local Rule 2.3(b)(2) grants Department 1 the authority to transfer a case from one judicial district to another when it is filed in the wrong district. Thus, the relevant consideration is whether the case was initially filed in the proper place. McCool’s later-filed cross-complaint is immaterial to this inquiry and McCool’s motion concedes “the Original Complaint was filed in the proper court, based upon the Local Rules.” (Mot. at 12:22.) Accordingly, a transfer cannot be based upon an improper filing location.

McCool also argues it is more convenient for the parties and witnesses to appear in the South Central District. (Mot. at 13:15-9.) McCool summarily contends she is “unable to drive to the Central District, or any court more than 10 miles from her home,” (Mot. at 13:15-17; McCool Decl. ¶ 6), and there is “no parking close enough to the Spring Steet Courthouse for defendant and cross-complainant to handle the walking.” (Mot. at 13:24-25; McCool Decl. ¶ 10.) McCool’s conclusory declaration and a medical report from September 3, 2021, that does not mention her ability to drive, are insufficient to demonstrate she will be unable to attend any eventual trial in the Central District. (Pesses v. Superior Court (1980) 107 Cal.App.3d 117, 125 (“the party wishing to change the venue must offer more than conclusionary assertions of hardship in order to carry [her] burden of proof.”).)

McCool further argues, “[a]s for the convenience of witnesses, the majority of the witnesses subpoenaed by Defendant and Cross-Complainant are the owners of plaintiff or work for plaintiff, and as such the South Central District is the closest courthouse to their work location.” (Mot. at 14:1-5.) However, McCool failed to provide any of the information required to seek a transfer based upon the convenience of witnesses. (Peiser v. Mettler (1958) 50 Cal.2d 594, 607 (“The affidavits in support of the motion for change of venue on this ground must set forth the names of the witnesses, the nature of the testimony expected from each, and the reasons why the attendance of each would be inconvenient.”).) McCool’s reply declaration, even if considered, does not provide this information either.

In opposition, Servpro contends “[i]f Servpro’s motion to strike is granted, then this case should be transferred back to a court of limited jurisdiction. As such, it would be premature for this Court to consider Ms. McCool’s Motion to Transfer until it is settled whether this case will be in a court of limited jurisdiction or a court of unlimited jurisdiction.” (Opp. at 4:4-7.) The outcome of Servpro’s motion to strike is immaterial to Court’s ruling herein and there is no basis to continue the hearing on the instant motion pending its outcome.

The Court finds McCool failed to meet her burden to demonstrate a transfer is warranted and the request to transfer the action to the South Central District is DENIED.