Judge: Monica Bachner, Case: 21STCV05722, Date: 2022-08-17 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV05722    Hearing Date: August 17, 2022    Dept: 71




Superior Court of California

County of Los Angeles











 Case No.:  21STCV05722




 Hearing Date:  August 17, 2022


Defendant Harbor Pest Control’s motion to transfer venue to San Diego County, joined by Defendant Metropolitan Stevedore Company, is denied.  


Defendant Harbor Pest Control’s motion to sever the action, joined by Defendant Metropolitan Stevedore Company, is denied.


1.    Motion to Transfer Venue


          Defendant Harbor Pest Control (“HPC”), joined by Defendant Metropolitan Stevedore Company (“Metropolitan”), move for an order transferring venue from the Los Angeles Superior Court to the San Diego County Superior Court, pursuant to C.C.P. §397(c).  (Notice of Motion, pgs. 1-2.)  The Court nots HPC has already posted all required costs and fees. (Motion, pg. 6.)




          On February 11, 2021, Plaintiffs Raymond Leyba (“Leyba”), Karen Castillo-Leyba (“Karen”) (collectively, “Leyba Plaintiffs”), Mario Joseph Espinosa (“Espinosa”), and Gail Denise Espinosa (“Gail”) (Mario and Gail, collectively, “Espinosa Plaintiffs”) (all collectively, “Plaintiffs”) filed a complaint against Metropolitan and HPC (collectively, “Defendants”), for negligence, strict liability, fraudulent concealment, breach of implied warranties, and loss of consortium based on Leyba and Espinosa’s alleged exposure to the hazardous chemical methyl bromide while working at the Port of San Diego in the 1990s, resulting in serious injuries including prostate cancer. (Complaint ¶¶24-36.)  Plaintiffs’ complaint does not specifically reference venue; however, Plaintiffs alleges Metropolitan, which assumed the debts and liabilities of Tenth Avenue Cold Storage Company (“TACSC”) upon its dissolution, is a California corporation with a principal place of business and corporate headquarters in Los Angeles County and as doing business in Los Angeles County.  (Complaint ¶3.)  Plaintiff also alleges HPC is a California corporation and successor by merger of Harbor Fumigation, Inc. (“HFI”), which was doing business in Los Angeles County and committed the wrongs alleged in the complaint.  (Complaint ¶4.)  Plaintiffs allege they reside in the State of California without specifying the county of their residence. (Complaint ¶¶1-2.)  On February 26, 2021, the action was deemed non-complex and was reassigned to Department 71 on March 1, 2021.  On October 5, 2021, Plaintiffs named Soil Chemicals Corporation (“SCC”) as a third defendant, DOE Defendant No. 1.  The Case Management Conference was held on December 8, 2021. Aside from the instant motions, there has been no motion practice in this case.  Trial is set for February 27, 2023.


          On January 13, 2022, HPC filed the instant motion. On February 14, 2022, Metropolitan filed a Notice of Joinder to the instant motion in which it asserts the grounds stated in HPC’s motion apply equally to Metropolitan as well.  (Joinder, pg. 2.)  Metropolitan asserts that in addition to the grounds raised in HPC’s motion, Plaintiffs’ responses to HPC’s Form Interrogatories identify witnesses who reside in San Diego County.  (Joinder, pgs. 2-3; Decl. of Adabale, Exhs. B, C.)


          Motion to Transfer Venue


“The court may, on timely motion, order transfer of an action ‘[w]hen the court designated in the complaint is not the proper court.’ [Citations] The moving party must overcome the presumption that the plaintiff has selected the proper venue. [Citation] Thus, ‘[i]t is the moving defendant’s burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds.’ [Citation] In opposing the motion to change venue, ‘[t]he plaintiff may bolster his or her choice of venue with counter-affidavits consistent with the complaint’s theory of the type of action but amplifying the allegations relied upon for venue.’ [Citation]” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)


          C.C.P. §397(c) provides that the Court may, on motion, change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change.  The Court notes HPC acknowledges that Los Angeles County is a proper venue pursuant to C.C.P. §395(a), given it is the principal place of business for Defendants, and as such, HPC’s motion is made only on the grounds that venue should be transferred for the convenience of the witnesses and to promote the ends of justice.


In a motion to change venue on grounds of convenience of witnesses and ends of justice, the moving party has the burden of proving that both the convenience of witnesses and the ends of justice will be thereby promoted. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643.) Before convenience of witnesses may be considered as a ground for an order granting a change of venue, it must be shown that their proposed testimony is admissible, relevant, and material to some issue in the case. (Id. at 644.)  To make a showing that the allegedly inconvenienced witnesses’ testimony is admissible, relevant, and material to the case, a moving party must submit affidavits setting forth the names of witnesses, nature of testimony expected from each, and reasons why attendance of each would be inconvenient. (Dillman v. Superior Court of Los Angeles County (1962) 205 Cal.App.2d 769, 774.)


HPC and Metropolitan did not meet their burden in moving to transfer venue.  HPC asserts that the Declaration of Adabale sets forth evidence of the following: (1) the underlying incident occurred in San Diego County; (2) the majority of Plaintiffs’ medical providers are located in San Diego County or nearby; and (3) potential lay witnesses are also located in San Diego County. (Motion, pg. 6; Decl. of Adabale ¶¶3-4, Exhs. B, C.)  The Court notes the Declaration of Adabale does not specifically state the aforementioned facts, which are asserted in the motion, but only attaches exhibits purporting to establish them including Plaintiffs’ complaint (demonstrating the injury occurred in San Diego County) and Plaintiffs’ responses to Form Interrogatories, each of which are approximately 60-page filings that purportedly show that Plaintiffs’ medical providers and/or “any potential lay witnesses” are located in San Diego County.  In its motion, HPC specifically lists out the medical providers located in San Diego County.  (Motion, pgs. 5-6.)  In its joinder, Metropolitan lists the witnesses identified by Plaintiffs in their discovery responses who reside, or were last known to reside, in San Diego County.  (Joinder, pgs. 2-4.)  The Court notes these witnesses are all individuals connected to Metropolitan and for whom their last known address is Metropolitan’s San Diego address, and no reference is made as to what their testimony may be or where they currently reside.  Notably, the motion, joinder, and declaration fail to describe any witness’s testimony.  In addition, the motion’s assertion that any lay witness reside in San Diego County is likewise unsupported.  Here, Defendants have not met their burden of establishing that transferring venue would promote the convenience of witnesses and the ends of justice. 


Based on the foregoing, Defendants’ motion to transfer venue is denied.


2.    Motion to Sever


HPC joined by Metropolitan (collectively, “Defendants”) move for an order severing the claims of the Leyba Plaintiffs and from the claims of the Espinosa Plaintiffs pursuant to C.C.P. §1048(b) on the grounds the claims bear little resemblance to each other and as such, they should be severed to avoid the risk of prejudice to HPC and defendants that will result if the actions are tried together.  (Notice of Motion, pgs. 1-2.)


          C.C.P. §378(a) provides, as follows: 


All persons may join in one action as plaintiffs if:


(1) They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or


(2) They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.


          C.C.P. §379.5 provides, as follows:  “When parties have been joined under Section 378 or 379, the court may make such orders as may appear just to prevent any party from being embarrassed, delayed, or put to undue expense, and may order separate trials or make such other order as the interests of justice may require.”


C.C.P. §1048(b) provides, as follows:  “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross–complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Emphasis added.)


Defendants cite to the following differences between Plaintiffs warranting severance: (1) Leyba is 74 years old while Espinosa is 64 years old; (2) Leyba and Espinosa have different educational backgrounds; (3) Leyba and Espinosa have differing work histories; (4) Leyba alleges exposure from 1994 to 1998 while Espinosa alleges exposure from 1991 to 2002; (5) Leyba was first diagnosed with prostate cancer in 2009 while Espinosa was diagnosed in 2007; (6) with the exception of Sharp Rees-Stealy Medical Group, Prostate Oncology Specialist, Inc., and Kaiser Permanente Medical Center Leyba and Espinosa received treatment from different medical providers; (7) there is no evidence Leyba and Espinosa ever worked together or around each other and/or were exposed to the same chemical products. (Motion, pgs. 5-6; citing Decl. of Adabale ¶¶2-4, Exhs. B, C.)  Defendants assert there is a substantial risk of prejudice to all defendants if a jury hears allegations relating to the other set of unrelated claims, since hearing and believing evidence of wrongdoing in regard to one set of claims makes a jury more likely to believe wrongdoing has been committed in regard to the other unrelated matter.  (Motion, pgs. 6-7.)  In reply, Defendants assert the differing work histories (i.e., potential to have been exposed at other places of work) and potential for exposure (i.e., having worked for 4 years as a forklift operator as opposed to 11 years) are key in determining the question of medical causation.  (Reply, pgs. 2-3.)  Defendants also assert the differing medical histories and separate treating physicians of Leyba and Espinosa will be important to establish causation and has a likelihood of prejudicing jurors to believe evidence of one individual’s exposure establishes the other was exposed.  (Reply, pgs. 3-4.) 


Defendants failed to meet their burden of establishing that severance is warranted in this action.  Defendants move to sever the claims of Leyba Plaintiffs from the claims of Espinosa Plaintiffs on the sole ground that prejudice will result; however, Defendants’ evidence does not suggest trying this case together would result in prejudice.  Defendants fail to address how the various cited differences between Leyba and Espinosa (e.g., their work experiences, their education, their ages) are relevant to the claims they both assert against Defendants for exposure to hazardous chemicals while working as forklift operators at the Port of San Diego facility for an overlapping four-year period.  Defendants contend Leyba and Espinosa had different medical providers without acknowledging that two out of the four medical providers named for Espinosa were also medical providers for Leyba.  In addition, Defendant takes issue with the differing time frame of alleged exposure between Leyba and Espinosa without acknowledging that Leyba’s alleged exposure (1994-1998) falls entirely within Espinosa’s alleged exposure (1991-2002).  Defendants’ assertion that prejudice will result is conclusory and not supported.  Notably, it is based on an assertion that the claims are “unrelated” when Defendants’ own cited evidence demonstrates Leyba and Espinosa are both alleging having developed prostate cancer as a result of being exposed to the same chemical at the same facility for at least 1994 to 1998 based on their work there as forklift operators.  Finally, the only difference in medical history cited by Defendants is the date of Leyba and Espinosa’s respective prostate cancer diagnoses, which were within two years of each other.


Based on the foregoing, HPC’s motion to sever the action, joined by Metropolitan, is denied.


Dated: August _____, 2022


Hon. Monica Bachner

Judge of the Superior Court