Judge Michelle Williams Court, Case Number: 23STCV11074, Date: 2023-09-07 Tentative Ruling

Judge: Michelle Williams Court, Case: 23STCV11074, Date: 2023-09-07 Tentative Ruling

Case Number: 23STCV11074 Hearing Date: September 7, 2023 Dept: 1

23STCV11074 TONYA FOSTER, et al. vs RICHARD MAKARY

Defendant Richard Makary’s Unopposed Motion to Transfer Venue – Courthouse Assignment

TENTATIVE RULING: The motion is DENIED.

On May 16, 2023, Plaintiffs Tonya Foster and Marqueece Foster filed this action against Defendant Richard Makary arising out of their tenancy in the residential property located at 7414 Laura St., Rear, Downey, CA 90242. The complaint asserts eight causes of action and alleges the unit Plaintiffs rented was an unlawfully subdivided unit with unpermitted plumbing, gas, and electrical that lacked a Certificate of Occupancy.

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 on a noticed motion. (LASC Local Rule 2.3(b)(2).)

The Action Was Permissively Filed in the Central District

Defendant seeks to transfer this action to the Norwalk Courthouse in the Southeast District. The case is currently assigned to Department 55 in the Stanley Mosk Courthouse, which sits in the Central District of the Los Angeles Superior Court. (LASC Local Rule 2.2(b).)

In his motion, Defendant cites Code of Civil Procedure sections 396b. (Mot. at 3:18-25.) However, Code of Civil Procedure section 396b governs transfers between superior courts, not districts therein. The Los Angeles Superior Court is only one court, even though it is divided into districts and departments. (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.”).) The Local Rules of the Los Angeles Superior Court govern the assignment of cases between its districts and departments. (Code Civ. Proc. § 402; LASC Local Rule 2.3(b)(2).)

In “Step 4” of the civil case cover sheet 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,” Plaintiffs selected Reason 2, which correlates with “[p]ermissive filing in Central District,” and Reason 6, which correlates with “[l]ocation of property or permanently garaged vehicle.” Plaintiffs listed the relevant address as 7414 Laura St., Rear, Downey, CA 90240.

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

Local Rule 2.3(a)(1)(A) contains mandatory filing rules which have no application to Plaintiffs’ 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, an unlimited 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 noted by Defendant, (Mot. at 3:26-28), an unlimited civil complaint may also be brought “where the property is located” for cases involving real property. (LASC Local Rule 2.3(a)(1)(B).)

Plaintiffs’ complaint was properly filed in the Central District under the permissive filing rules enumerated in LASC Local Rule 2.3(a)(1)(B). Therefore, there is no basis to transfer the action based upon a “failure to file the case in accordance with the requirements set forth in . . . Chapter” 2 of the Local Rules, (LASC Local Rule 2.3(b)(2)), and Defendant’s motion cannot be granted on this basis.

Defendant Failed to Meet His Burden for a Transfer on Other Grounds

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. Defendant’s motion cites the complaint and summarily contends a transfer “will reduce inconvenience to witnesses, to the parties, and to counsel for the parties.” (Mot. at 4:4-11.) Defendant’s counsel provides a four-paragraph declaration purporting to attach the complaint and a printout of the results from the court’s Filing Court Locator page, and stating Defendant resides in Downey. (Marsh Decl. ¶¶ 2-4.) The declaration filed on June 26, 2023 does not include the stated exhibits. However, this filing omission does not affect the Court’s analysis herein. None of the information provided by Defendant 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.”).)

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).)

Furthermore, Defendant has not filed an answer to the operative complaint and a motion to transfer based upon the convenience of witnesses 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.”).)