Judge: Michelle Williams Court, Case: 22STCV37369, Date: 2023-04-13 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: 22STCV37369    Hearing Date: April 13, 2023    Dept: 1

22STCV37369           URBAN SOCCER 5 CENTER LLC vs LISA VERNOLA SALAS

Defendant Lisa Marie Vernola Salas’ Motion to Transfer Civil Landlord-Tenant Breach of Rent/Lease from Optional Central District (Stanley Mosk) to Southeast District (Norwalk) where the Leased Real Property Exist and all Witnesses Work

TENTATIVE RULING:  The motion is DENIED.  Plaintiff’s request for attorneys’ fees is DENIED.

Background

On November 29, 2022, Plaintiff Urban Soccer 5 Center, LLC filed this action against Defendants Lisa Vernola Salas, individually and as Trustee of the Vernola Family Trust, and Joan Vernola, as Trustee of the Vernola Family Trust. In the operative First Amended Complaint, filed November 30, 2022, Plaintiff asserts causes of action for: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) anticipatory repudiation; (4) breach of implied covenant of quiet enjoyment; (5) intentional interference with contractual relations; (6) accounting; (7) unfair business practices (B&P 17200, et seq.); (8) declaratory relief; and (9) intentional interference with contractual relations. The FAC alleges the parties entered a lease for a commercial property located at 12000 Firestone Blvd., Norwalk, CA 90650 to be used as a public soccer center. Plaintiff alleges Defendants made it difficult for Plaintiff to pay rent or refused to accept rent, towed customer vehicles without cause, demanded more than the proportionate share of property taxes, utilities, and services from Plaintiff, and improperly withheld consent to an assignment of the lease.

Motion

On February 28, 2023, Defendant Lisa Marie Vernola Salas filed the instant motion seeking to transfer this action from the Stanley Mosk Courthouse in the Central District to the Norwalk Courthouse in the Southeast District.

Opposition

In opposition, Plaintiff argues the Central District is a proper district for the action, Defendant failed to meet their burden, and the motion is premature. Plaintiff also seeks to recover attorney's fees.

Reply

In reply, Defendant contends Plaintiff’s opposition is based upon Code of Civil Procedure section 396b, which is the wrong statute, and the convenience of witnesses and ends of justice would be supported by the transfer.

Plaintiff’s Evidentiary Objections

Both objections are SUSTAINED as the statements are speculative, lack foundation, and contain legal conclusions.

Motion to Transfer Between Courthouses

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).)

The Action Was Permissively Filed in the Central District 

In “Step 4” of the civil case coversheet where the filing party is asked to “[c]heck the appropriate boxes for the numbers shown under Column C for the type of action that you have selected. Enter the address, which is the basis for the filing location including zip code,” Plaintiff selected Reasons 2 and 5 and listed the relevant address as “12000 Firestone Blvd., Norwalk, CA 90650.” Reason 2 allows permissive filing in the Central District and Reason 5 is the “[l]ocation where performance is required or defendant resides.”

In Step 5 of the civil case coversheet, where the filing party is asked to certify the proper filing location, plaintiff’s counsel indicated the Central District was the appropriate filing location under the applicable Local Rules.

The complaint was properly filed in the Central District under the permissive filing rules enumerated in LASC Local Rule 2.3(a)(1)(B). 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, or adoption. If none of the mandatory provisions apply, a civil case may always be filed in the Central District at a plaintiff’s election.  (LASC Local Rule 2.3(a)(1)(B) (“Except as set forth in subsection (A) above, [Mandatory Filing], . . .  an unlimited civil or Family Code action may be filed in the Central District . . .”).) As Defendant acknowledges, (Mot. at 6:25-26; Mollis Decl. ¶ 6), LASC Local Rule 2.3(a)(1)(B) unequivocally permits the filing of Plaintiff’s action in the Central District.

Accordingly, Plaintiff “file[d] the case in accordance with the requirements” of the Local Rules and a transfer cannot be granted on this basis. (LASC Local Rule 2.3(b)(2).)

Defendant Has Not Met Their Burden

Pursuant to Local Rule 2.3(b)(2), Department 1 may also transfer a case between judicial 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 § 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 it seeks 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 should, moreover, call for affidavits that contain more than generalities and conclusions. (See Hamilton v Superior Court (1974) 37 Cal. App.3d 418, 424.) Such affidavits or declarations, like those for change of venue under Code Civ. Proc. section 397(c), should 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 alone is the key to the success of the motion, and not the convenience of parties or employees of parties. (Ibid.)

Defendant failed to meet this burden. In support of the motion, Defendant’s counsel summarily states “[v]irtually all anticipated witnesses are those persons who are employees of Plaintiff, and who are employees of the subtenant Fit Nation, as well as employees at Vernola’s Towing in Norwalk that Plaintiff alleges towed cars from the property (FAC, ¶ 20) that makes venue at the Southeast District-Norwalk Courthouse the appropriate District venue for this action.” (Mollis Decl. ¶ 4. See also Mollis Decl. ¶ 8 (“The geographic location of the Southeast District- Norwalk Courthouse evidence the convenience to the witnesses to promote a venue district change to the Norwalk Courthouse.”).) Counsel also states the property “is practically walking distance to the Norwalk Courthouse located at 12720 Norwalk Blvd., Norwalk, California.” (Mollis Decl. ¶ 7.) However, none of this information relates to the convenience of specific, non-party witnesses and their attendance at trial in the Stanley Mosk Courthouse as required. (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.”).)

Moreover, as argued by Plaintiff, Defendant has not filed an answer to the operative complaint and therefore the motion to transfer based upon the convenience of witnesses and the interests of justice is premature. (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.”).)

Accordingly, Defendant failed to demonstrate a transfer is warranted “for the convenience of witnesses or to promote the ends of justice.” (LASC Local Rule 2.3(b)(2).)

Plaintiff is Not Entitled to Attorneys’ Fees

Plaintiff requests reasonable attorneys’ fees for opposing the instant motion pursuant to Code of Civil Procedure section 396b(b), (Opp. at 7:27-8:19), which provides: 

In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party's papers, or on the court's own noticed motion, and after opportunity to be heard.

However, Code of Civil Procedure section 396b applies to transfers between courts, not districts or departments within the same court. There is only one superior court in Los Angeles County. (See generally Glade v. Glade (1995) 38 Cal.App.4th 1441, 1449 (“Even though a superior court is divided into branches or departments, pursuant to California Constitution, article VI, section 4, there is only one superior court in a county and jurisdiction is therefore vested in that court, not in any particular judge or department. Whether sitting separately or together, the judges hold but one and the same court.”).) Accordingly, Plaintiff’s request for attorneys’ fees pursuant to Code of Civil Procedure section 396b(b) is DENIED.