Judge: Michelle Williams Court, Case: 22STCV37050, Date: 2023-06-22 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: 22STCV37050    Hearing Date: June 22, 2023    Dept: 1

22STCV37050 GENEVIEVE A. MCSWEENEY vs EDWARD C. MCSWEENEY, et al.

Defendants Edward C. McSweeney, Sally McSweeney, and Interstate Marketing Associates, Inc.

Motion to Transfer Action to Northwest District (Van Nuys Courthouse East); Request to Relate Cases

TENTATIVE RULING: Motion to Transfer Action to Northwest District (Van Nuys Courthouse East); Request to Relate Cases is DENIED.

Background of 22STCV37050 McSweeney v. McSweeney

On November 23, 2022, Plaintiff Genevieve A. McSweeney, individually and as Trustee of the Genevieve McSweeney Living Trust established U/D/T dated April 14, 1998, and derivatively on behalf of Ventura Pacific Holdings LP, filed this action against Edward C. McSweeney, individually and as Trustee of the McSweeney Living Trust Established U/D/T April 15, 1994, Sally A. McSweeney, Interstate Marketing Associates, Jeffrey M. Cohen, Cohen & Freedman, and Linda Shannon. The complaint asserts fourteen direct causes of action and seven derivative causes of action on behalf of Ventura Pacific Holdings. Plaintiff and Defendant Edward McSweeney are former spouses who each had a 50 percent interest in the limited partnership. The parties allegedly assigned their interests to their respective trusts. The complaint alleges the Defendants acted to improperly transfer, divert, and misappropriate assets from the limited partnership.

On June 9, 2023, Edward McSweeney, individually, as trustee, and as general partner of Ventura Pacific Holdings LP, as well as Interstate Marketing Associates filed a cross-complaint against Jeffrey Cohen, Cohen & Freedman, and Linda Shannon for equitable indemnity and declaratory relief.

Background of NWD094167 In re: Marriage of McSweeney

Plaintiff Genevieve McSweeney and Defendant Edward McSweeney dissolved their marriage in Los Angeles Superior Court case NWD094167 In re: Marriage of McSweeney, filed on May 12, 1982. The parties filed a Notice of Entry of Judgment on September 9, 1982 entering the parties’ property settlement agreement.

On November 24, 2020, Genevieve McSweeney filed a request for order seeking unpaid spousal support, unpaid wages, a new vehicle, unpaid rents from Interstate Marketing Associates, undistributed business provides from Ventura Pacific Holdings, LP, return of funds wrongfully transferred from Ventura Pacific Holdings, and compensation for breach of fiduciary duty.

On August 25, 2021, the court denied Genevieve McSweeney’s motion seeking to join Sally McSweeney and the McSweeney Family Trust.

On February 1, 2023, the court noted the filing of the civil case, ordered Genevieve McSweeney to file a Notice of Related Case, and stated “[t]riable issues are items #1 Spousal Support arrearage, #2 Unpaid Employment wages; #3 Failure to Provide New Vehicle; #4 Unpaid Rents as listed in the Request for Order Item 8.”

On March 13, 2023, Genevieve McSweeney filed a Notice of Withdrawal Without Prejudice of Certain Claims for Relief (from Attachment 8 in Respondent’s Request for Orders filed November 24, 2020) indicating withdrawal of the requests for unpaid rents, undistributed business profits, return of wrongfully transferred funds, and compensation for breach of fiduciary duty. The notice indicated the withdrawal of these claims was based upon the filing of the civil action. On May 10, 2023, the court denied, in part, Genevieve McSweeney’s request to amend Attachment 8 only as to items 3 and 7, thereby confirming withdrawal of the other claims.

The family law case is currently pending in Department Y of the Van Nuys Courthouse East with trial set for September 25, 2023.

Motion

On May 17, 2023, Defendants Edward McSweeney, Sally McSweeney, and Interstate Marketing Associates, Inc. filed the instant motion seeking to transfer this civil action to the Van Nuys Courthouse East in the Northwest District and to relate this matter to family law case NWD094167 In re: Marriage of McSweeney.

Defendants Have Not Provided a Basis to Transfer the Action

Defendants seek to transfer this civil action from the Stanley Mosk Courthouse in the Central District to the Van Nuys East Courthouse in the Northwest District. Requests to transfer a civil case between districts of the Los Angeles Superior Court are governed by the Local Rules of the Los Angeles Superior Court and heard by Department 1. (Code Civ. Proc. § 402; LASC Local Rule 2.3(b)(2).) 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.

In their motion, Defendants argue the case should be transferred “[b]ecause Local Rule 2.0 mandates that Plaintiff file this unlimited civil action in the Van Nuys Courthouse, and because it is likely that the parties will be able to conclude this civil action in the Van Nuys Courthouse much more quickly than in the Central District, and because there is a pending matter between these parties already in the Van Nuys Courthouse arising from these same allegations.” (Mot. at 6:2-10.)

The Civil Action was Filed in a Proper District

As noted above, Local Rule 2.3(b)(2) grants Department 1 the authority to transfer a civil 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.

Local Rule 2.3(a) governs the filing locations for cases filed in the Los Angeles Superior Court. Local Rule 2.3(a)(1)(A) contains mandatory filing rules which have no application to Plaintiff’s complaint, as the case does not fall within any of the enumerated case types: personal injury, asbestos, class action, probate, Labor Code section 98.2, writ of prohibition or mandate, emancipation, adoption, or family law. Local Rule 2.3(a)(1)(B) contains optional filing rules providing any unlimited civil case can be filed in the Central District. The Court agrees with Plaintiff, (Opp. at 2:19-27), that the complaint was properly filed in the Central District and the filing location does not provide a basis for the requested transfer.

Defendants Failed to Meet Their Burden that a Transfer is Otherwise Warranted

Local Rule 2.3(b)(2) also permits Department 1 to transfer a case between districts for the convenience of witnesses or to promote the ends of justice. 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) bears 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 generally 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.”).)

Defendants failed to meet this burden. The declaration of Defendants’ counsel attaches various court filings, (Peck Decl. ¶¶ 1-7, Ex. A-D), which is not sufficient. The moving party must provide specific evidence demonstrating the convenience of witnesses or the ends of justice will be promoted by the transfer. (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.”); 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.”).) While Defendants make various claims in their memorandum, “[t]he matters set forth in the unverified Statement of Facts and in memoranda of points and authorities are not evidence.” (Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 578. See also Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 767 n.8 (“It goes without saying that statements in a memorandum of points and authorities are not evidence.”).) Moreover, the Ventura County residence and ages of the Defendants alone are not sufficient grounds for a transfer between districts.

Defendants have not demonstrated that a transfer is warranted based upon the convenience of witnesses or the ends of justice.

As a Motion to Relate, the Motion was Prematurely Filed

Defendants also request the Court relate this civil law case with family law case NWD094167 In re: Marriage of McSweeney. (Mot. at 6:11-7:1.) The family law case is currently pending in Department Y of the Van Nuys Courthouse East, which is within the Northwest District of the Los Angeles Superior Court. 

Defendants indicate Plaintiff filed a Notice of Related Case in the family law action on February 3, 2023, but did not file the Notice in the civil law case at that time as required. (Peck Decl. ¶ 5, Ex. C.) Defendants filed a Notice of Related Case in the civil law action on May 1, 2023. (Peck Decl. ¶ 6, Ex. D.)

Pursuant to California Rules of Court, rule 3.300(h)(1)(C), “[w]here the cases listed in the notice contain a probate or family law case, the presiding judge or a judge designated by the presiding judge must determine whether the cases should be ordered related and, if so, to which judge or department they should be assigned.”

In the Los Angeles Superior Court, “[w]here the cases listed in a Notice of Related Cases contains a probate or family law case, Department 1 shall determine whether the cases shall be ordered related and, if so, to which department they shall be assigned if the cases are all pending in the Central District or pending in two different districts.” (LASC Local Rule 3.3(f)(2).) To obtain a ruling from Department 1 on a Notice of Related Case, the parties must provide a copy of the Notice directly to Department 1. (Ibid. (“a copy of the Notice of Related Cases must be filed in Department 1 for matters to be determined in Department 1.”).).

A party may file a motion to relate cases “[i]n the event that any of the cases listed in the notice are not ordered related under (A), (B), or (C)” of the California Rules of Court, rule 3.300(h)(1). (Cal. R. Ct., rule 3.300(h)(1)(D).) In the Los Angeles Superior Court, “Department 1 shall hear the motion, if the cases . . . are pending in two or more different districts.” (LASC Local Rule 3.3(f)(3).) However, a party must follow all procedural requirements regarding the Notice of Related Case, thereby providing the appropriate judicial officer an opportunity to rule on the Notice, prior to filing a motion to relate. No party filed a copy of their Notice of Related Case in Department 1 as required and Defendants’ motion to relate was prematurely filed.

The Court Declines to Relate the Two Cases

While Defendants’ request to relate the cases via a noticed motion was premature, Department 1 shall rule on the merits of the Notice to avoid further delay.

Cases are related when they (1) involve the same parties and are based on the same or similar claims, (2) arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact, (3) involve claims against, title to, possession of, or damages to the same property, or (4) are likely for other reasons to require substantial duplication of judicial resources if heard by different judges. (Cal. R. Ct., rule 3.300(a).)

As noted above, the family law case and civil case do not involve the same parties. The court denied Genevieve McSweeney’s request to join Sally McSweeney and the McSweeney Family Trust as parties to the family law action and Ventura Pacific Holdings LP, Interstate Marketing Associates, Jeffrey M. Cohen, Cohen & Freedman, and Linda Shannon are not parties to the family law case. The cases also do not involve substantially similar claims as Genevieve McSweeney withdrew all potentially similar claims from the family law action. As a result of the withdrawal, the cases do not arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact. The family law case initially arose out of the dissolution of the parties’ marriage and the post-judgment proceedings are now limited to issues of spousal support, wages, and the provision of a new vehicle. The civil law action arises out of Defendants’ alleged mismanagement of a jointly owned business, which is not at issue in the family law case. The civil case involves twenty-one causes of action against various parties, including derivative claims, whereas the family law action appears ready to proceed with trial on limited, unrelated issues. Defendant’s suggestion in reply that Plaintiff settled with Jeffrey Cohen and Linda Shannon, (Reply at 3:24-4:1), does not increase the similarity between the two cases in their current procedural posture. The cases are not likely to require substantial duplication of judicial resources if heard by different judges.

Accordingly, Department 1 declines to relate this civil law case with family law case NWD094167.