Judge: Michelle Williams Court, Case: 22STCV07755, Date: 2022-09-01 Tentative Ruling

Case Number: 22STCV07755    Hearing Date: September 1, 2022    Dept: 74

22STCV07755           LYNN SWENSEN vs SONIA R. BAUTISTA, DMD, INC.

Defendants Sonia R. Bautista, D.M.D. and Sonia R. Bautista, D.M.D., Inc.’s Motion for Transfer of Venue to Humboldt County Based upon Forum Non Conveniens; CCP § 397(c).

TENTATIVE RULING:  The motion is DENIED WITHOUT PREJUDICE.

Background

On March 3, 2022, Plaintiffs Lynn Swensen and Dennis Swensen filed this action against Sonia R. Bautista, DMD, Inc., Sonia R. Bautista, DMD, Leon Kiraj, DDS, Liana Muradyan, DDS, Kiraj & Muradyan Dental Corporation, and Infinite Dental Wellness. The complaint asserted causes of action for: (1) professional negligence; (2) elder abuse; (3) willful misconduct; (4) negligent infliction of emotional distress; and (5) loss of consortium. The complaint alleges Plaintiff Lynn Swensen underwent a dental procedure on December 18, 2020, which was performed by Defendant Kiraj. Plaintiff notified Defendants Bautista and Muradyan of swelling and significant pain on December 23, 2020, which was the result of an infection resulting in sepsis.

On June 13, 2022, the Court entered the parties’ stipulation and order dismissing the second, third, and fourth causes of action without prejudice and striking the prayers for attorneys’ fees, punitive damages, and treble damages.

Motion

On May 9, 2022, Defendants Sonia Bautista, DMD and Sonia Bautista, DMD, Inc. filed the instant motion to transfer this case to the superior court in Humboldt County, California based upon the convenience of witnesses and the interests of justice.

Opposition

In opposition, Plaintiffs contend the motion was not supported by sufficient evidence, was premature, and failed to advance the transfer fees as required.

Reply

In reply, Defendants contended all parties would soon appear, Plaintiffs had not yet responded to discovery when the motion was filed, and Plaintiffs are not prejudiced by Defendants’ failure to advance the transfer fees.

Evidentiary Objections

Plaintiffs’ objections in opposition are OVERRULED as to Objections Nos. 1 and 2 and otherwise SUSTAINED. The declaration in speculative and conclusory.

Plaintiffs’ Supplemental Objection No. 9 to the additional reply evidence is SUSTAINED.

Motion

Standard

Pursuant to Code of Civil Procedure section 397(c), “[t]he court may, on motion, change the place of trial in the following cases: . . . [w]hen the convenience of witnesses and the ends of justice would be promoted by the change.”

“The burden rests on one who seeks a change of venue under this subdivision to prove that both the convenience of witnesses and ends of justice will be promoted thereby, and this he must do through affidavits that contain more than generalities and conclusions.” (Hamilton v. Superior Court (1974) 37 Cal.App.3d 418, 423.) “[A] motion to change venue based upon the convenience of witnesses must name the witnesses to be called, indicate the nature and relevance of their testimony and explain why the current forum is inconvenient.” (Silva v. Superior Court (1981) 119 Cal.App.3d 301, 305.) Convenience to non-party witnesses alone should be the key to the success of the motion, and not the convenience of parties or employees of parties.  (See Stute v. Burinda (1981) 123 Cal. App. 3d Supp. 11, 17; Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401 (“except under limited circumstances, the court may not consider the convenience of the parties or of their employees in passing upon the motion.”).)

Defendants’ Motion Lacked Evidentiary Support

The Complaint alleges the procedure at issue was performed at the dental office of Defendant Sonia Bautista in Eureka, California and performed by Defendant Leon Kiraj who travelled from his office in Glendale, California to perform the procedure. (Compl. ¶ 4.)

Defendants’ initial motion was supported by the declaration of Allison Friedman who included documents regarding Plaintiff’s patient chart, (Friedman Decl. ¶¶ 1-3, Ex. A-C), and Defendant Sonia R. Bautista, D.M.D., Inc.’s Statement of Information. (Id. ¶ 4, Ex. D.) Defendants’ counsel summarily stated “it appears that all subsequent treaters and witnesses to Plaintiffs’ injury are located in Humboldt County, or in Oregon. . . . it is unfeasible, unreasonable and overly burdensome to require all evidence and non-party witnesses to travel to Los Angeles County for this litigation. Further, it would be entirely unjust to force Dr. Bautista to bear this exorbitant cost in an effort to defend herself in this action. Dr. Bautista anticipates that the evidence and testimony from non-party witnesses will establish that Dr. Bautista is not responsible for Plaintiff s injuries.” (Id. ¶¶ 6, 8-9.)

In opposition, Plaintiff correctly notes that Defendants’ original motion was not supported by sufficient evidence. (Opp. at 2:10-5:2.) As argued by Plaintiff, “[t]he Friedman Declaration names no witnesses and sets forth no anticipated testimony nor particularized facts showing inconvenience.” (Opp. at 2:20-22.) This omission is fatal to Defendants’ motion. It is a “well-settled rule that the burden rests upon one who seeks a change of venue under Code of Civil Procedure, section 397, subdivision 3, to prove that both the convenience of witnesses and the ends of justice will be promoted thereby. This he must do through affidavits which contain something more than generalities and conclusions.” (Dillman v. Superior Court of Los Angeles County (1962) 205 Cal.App.2d 769, 773 (citations omitted). See also 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.”); Silva, supra, 119 Cal.App.3d at 305.)

In reply, Defendants improperly attempt to correct the evidentiary deficiencies in their initial motion. (Reply at 3:15-4:25; Friedman Reply Decl. ¶¶ 1-6, Ex. A-B.) “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537. See also Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1089 (“New evidence is generally not permitted with reply papers.”).)

Defendants bore the initial evidentiary burden, which was governed by well-established case law. (Dillman, supra, 205 Cal.App.2d at 773.) Defendants contend “[a]t the time of filing the instant motion, Plaintiffs had not yet responded to discovery and, therefore, Defendants were unable to specifically name the non-party witnesses located in and around Humboldt County.” (Reply at 3:17-19.) This does not demonstrate good cause, but rather demonstrates Defendants had no basis to file the motion on May 9, 2022, because they had insufficient evidence to support it. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 (“The new evidence was not simply evidence responding to a new issue [the opposing party] raised; rather, it was evidence on an issue [movant] raised, but failed to establish, in its moving papers.”).) Accordingly, the Court shall not consider Defendants’ improper reply evidence and the motion failed to meet its burden.

Defendants’ Motion was Premature When Filed

Plaintiffs also noted not all of the Defendants had filed their answers when the moving Defendants filed their motion or when Plaintiffs filed their opposition. (Opp. at 7:1-13.) Accordingly, Defendants’ motion was premature when filed. (Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1665 (“a motion to transfer venue based on witness convenience cannot be made before an answer is filed.”); De Long v. De Long (1954) 127 Cal.App.2d 373, 374 (“since no answer had been filed the trial court properly denied the motion made upon the ground of the convenience of witnesses.”); Delgado v. Superior Court (1977) 74 Cal.App.3d 560, 562–563 (“Petitioners correctly argue that the order cannot be upheld as an exercise of the court's power to transfer for the convenience of witnesses under Code of Civil Procedure section 397, subdivision 3, because no answer was filed.”).) In reply, moving Defendants contend the other Defendants would soon respond pursuant to the parties’ stipulation. (Reply at 2:1-21.) Defendants do not cite any authority that would render their clearly premature motion timely.

Defendants’ Stipulation is Immaterial

Defendants note the other Defendants, Leon Kiraj, D.D.S., Liana Muradyan, D.D.S., Kiraj & Muradyan Dental Corporation, and Infinite Wellness Dental Practice, signed a stipulation to change venue to Humboldt County. (Friedman Decl. ¶ 5, Ex. E.) As noted by Plaintiffs, this fact is immaterial. (Tutor-Saliba-Perini Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736, 741 (“Plaintiff's selection of venue may not be defeated even if all the defendants concur in a motion to change venue to a county in which another defendant resides.”).)

Defendants Failed to Comply with Code of Civil Procedure section 399

Finally, Plaintiffs note there is no evidence Defendants posted the transfer fees in advance as required. (Opp. at 7:14-18.) Code of Civil Procedure section 399(a) provides “[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.”

In reply, Defendants contend “the Court may excuse a party for the failure of their attorney to post the cost of transfer at the time of filing a motion to transfer venue” citing Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477. (Reply at 5:1-12.) The cited authority does not aid Defendants. In Gee, the court addressed a motion for relief from dismissal pursuant to Code of Civil Procedure section 473(b) after the trial court dismissed an action for failing to pay transfer fees. (Gee, supra, 6 Cal.App.5th at 480 (“We conclude that section 473, subdivision (b), can provide relief when an action is dismissed due to plaintiff's counsel’s mistake or inexcusable neglect related to the failure to pay change of venue fees.”).) Here, Defendants’ counsel admits they routinely fail to advance the costs as required by the statute. (Friedman Reply Decl. ¶ 10 (“Defense counsel typically pays transfer fees and costs upon an Order granting transfer.”).) Accordingly, relief under section 473(b), as was at issue in Gee, would not be available. (See e.g. Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1073 (“if an ‘intentional strategic decision’ caused the default or dismissal to occur, section 473 relief was not available.”).)

Defendants May Refile in Full Compliance with the Code of Civil Procedure

As described above, Defendants’ initial motion disregarded the well-established procedural and evidentiary requirements for making a motion to transfer venue pursuant to Code of Civil Procedure section 397(c). The motion is DENIED.

Because the motion is primarily based upon the convenience of non-party witnesses, who should not be prejudiced by Defendants’ procedural and evidentiary missteps, the Court shall deny the motion without prejudice. If Defendants chose to refile their motion, they must fully comply with all the requirements of Code of Civil Procedure, including the fee posting requirement of Code of Civil Procedure section 399(a).