Judge: Michelle Williams Court, Case: 22STCV07755, Date: 2022-10-24 Tentative Ruling

Case Number: 22STCV07755    Hearing Date: October 24, 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 GRANTED.

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.

On September 1, 2022, the Court issued an order denying Defendants’ initial motion to transfer venue without prejudice, noting Defendants’ motion was premature, inadequately supported, and was not accompanied by the required transfer fees.

On October 10, 2022, the Court entered an order dismissing Defendant Infinite Dental Wellness without prejudice. 

Motion

On September 16, 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.

Defendants’ motion is accompanied by a Notice of Payment of Venue Transfer Fees.

Opposition

In opposition, Plaintiffs contend Defendants failed to provide sufficient evidence to support the motion, Defendants rely upon facts irrelevant to a motion to transfer venue, and the asserted inconvenience is speculative or mitigated by available technology.

Reply

In reply, Defendants contend Plaintiffs’ arguments are unpersuasive and unsupported and Defendants have met their burden.

Evidentiary Objections

Plaintiff’s Objections Nos. 1, 3, and 5 are OVERRULED.

Plaintiff’s remaining objections are 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.”).)

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.)

A Transfer of Venue is Warranted

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.) Eureka, California is in Humboldt County. All Defendants have answered the complaint.

Defendants’ motion is supported by the declaration of Allison Friedman who provides Plaintiff’s responses to Form Interrogatories, Set One and Requests for Production of Documents, Set One. (Friedman Decl. ¶¶ 2-4, Ex. B-D.) Friedman notes Plaintiff identified eleven health care providers as those having provided medical care and treatment for Plaintiff’s injuries, each of which are either in Humboldt County in California or Oregon. (Id. ¶ 5, Ex. C at 10:18-13:21.) Friedman identifies the testimony expected from each of these witnesses that directly relate to Plaintiff’s claims. (Id. ¶ 6.) While Plaintiffs argue Defendants’ counsel’s declaration is “perfunctory,” (Opp. at 1:10-3:13), Plaintiffs’ verified discovery responses demonstrate the relevant non-party witnesses are in and around Humboldt County and not in Los Angeles County. (Friedman Decl. Ex. C at 10:18-13:21, 19:17-27.) Defendants have met their evidentiary burden.

The alleged injury took place in Humboldt County and Plaintiff’s identified witnesses, including non-party healthcare providers and Plaintiff’s neighbor, are located either in Humboldt County or in a location significantly closer to Humboldt County than Los Angeles. Based upon the evidence before the Court and the allegations in the complaint, a transfer to Humboldt County will promote the convenience of the non-party witnesses and the ends of justice. (See Pearson v. Superior Court, City and County of San Francisco (1962) 199 Cal.App.2d 69, 77 (“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.”); Harden v. Skinner and Hammond (1955) 130 Cal.App.2d 750, 754 (“a court cannot be said to have abused its discretion if it permits the trial to be had as near as possible to the residences of the greatest number of witnesses.”); J. C. Millett Co. v. Latchford-Marble Glass Co. (1959) 167 Cal.App.2d 218, 228 (“the witnesses would be readily accessible for immediate recall if further testimony was desirable, thus preventing needless delays. The obvious saving in the witnesses’ time and expense in traveling to Los Angeles and returning to San Francisco also promote justice.”); Richfield Hotel Management, Inc. v. Superior Court (1994) 22 Cal.App.4th 222, 227 (“The logical inferences which arise from the affidavits demonstrate the inconvenience of trying this case in San Mateo County. All of the designated witnesses live or work in the area around Tulare County. All of the relevant events allegedly took place in Visalia. All of the relevant documents would be there. It is undisputed that San Mateo County is 210 miles from Visalia and that many of the lay witnesses are restaurant employees for whom the lost working time and travel expenses would be significant.”).)

Plaintiffs did not provide any contrary evidence, other than to suggest documents may be copied and trial and depositions may take place via remote means. (Bashant Decl. ¶¶ 6-7.) However, the Court of Appeal has rejected reliance upon remote technology, including Code of Civil Procedure section 367.75 cited by Plaintiffs, as a basis to deny a motion to change venue. (Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824, 843, 849 (“the availability of remote testimony is a circumstance that may ease the inconvenience for any witnesses that live in a location distant from the site of trial, but it is not a proper basis for denying a motion to transfer a case to the county where most witnesses are located. . . . we reject the Superior Court’s conclusion that the availability of remote testimony means section 397 motions based on the convenience of witnesses are a relic of the past.”).)

The Court finds Plaintiffs failed to rebut Defendants’ evidence. “Where there is a showing that 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.” (Pearson, supra, 199 Cal.App.2d at 78. See also Rycz, supra, 81 Cal.App.5th at 848–849 (“Plaintiffs point to no circumstances suggesting ‘that the ends of justice would not be promoted by the change.’”).)

Conclusion

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) is GRANTED.