Judge: Monica Bachner, Case: 22STCV08769, Date: 2022-11-14 Tentative Ruling

Case Number: 22STCV08769    Hearing Date: November 14, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant’s motion to transfer venue is granted.  Plaintiff is to pay transfer fees of $50 to the Los Angeles Superior Court and $435 initial filing fee to Contra Costa County Superior Court.  (See C.C.P. §399(a).)

Defendant’s request for attorneys’ fees and costs and Plaintiff’s request for attorneys’ fees are denied.

          Defendant Seth W. Wiener (“Wiener”) (“Defendant”) moves for an order transferring venue of this action filed by Plaintiff Na Wang (“Wang”) (“Plaintiff”) from the Los Angeles Superior Court to the Contra Costa Superior Court pursuant to C.C.P. §395 on the grounds that Defendant is the only named defendant in this action and resides and practices law in San Ramon, Contra Costa County, and is not subject to venue in Los Angeles County.  (Motion, pg. 1.)  Defendant also requests this Court award him reasonable attorneys’ fees in the amount of $1,375, plus expenses in the amount of $446.96, pursuant to C.C.P. §396b.  (Notice of Motion, pg. 2.)  Plaintiff, in propria persona, requests attorneys’ fees and costs in the amount of $1,821.96.

          Background

          Plaintiff, who is self-represented, filed her complaint (“Complaint”) on March 11, 2022, against Defendant alleging Plaintiff retained Defendant as counsel in October 2020, and Defendant was not prepared for trial, had a bad internet connection and no steady power, could not locate exhibits, and did not consult with Plaintiff over the phone or call Plaintiff’s witnesses.  Plaintiff asserts causes of action for (1) negligence; and (2) breach of fiduciary duties.

The complaint’s only allegations supporting venue are as follows: “The Plaintiff hired second counsel, the Defendant, and sent all evidences to him in Oct. 2020. The Trial moved from April to Nov. of 2020, then again to Feb. 16, 2021 in dept. 39, 111 North Hill Street superior court,” and “Defendant Seth W. Weiner is an individual and an attorney licensed to practice law in California with an office in San Ramon, CA 94582.”  (Complaint ¶¶2, 7.) 

On May 26, 2022, Defendant filed the instant motion to transfer venue.  Plaintiff filed her opposition on June 10, 2022.  Defendant filed his reply on November 3, 2022.

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. §395(a) provides, in pertinent part, as follows: “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. . . . Subject to [C.C.P. §395(b)], if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary.”

For venue purposes, actions are classified as “local” or “transitory.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 482 n.5.)  To determine whether an action is “local” or “transitory,” the Court looks to the “main relief sought.” (Id.)  Where the main relief sought is personal, the action is transitory; however, where the main relief involves rights to real property, the action is local. (Id.)  In transitory actions against individual defendants, the general rule of venue is applicable, where the county in which the defendants or some of them reside at the commencement of the action is the proper county for the trial of the action. (See C.C.P. §395(a); see also Brown, 37 Cal.3d at pg. 483.)  Under C.C.P. §395, “residence” means “actual bodily presence in the place combined with a freely exercised intention of remaining there permanently or for an indefinite time.” (See Enter v. Crutcher (1958) 159 Cal.App.2d Supp. 841, 845.)

          Los Angeles County is not the proper venue for the instant action under C.C.P. §395.  Defendant submitted evidence that at the inception of his representation of Plaintiff to the present, he has resided in San Ramon, Contra Costa County.  (Decl. of Wiener ¶3.)  Defendant submitted evidence that he never resided in Los Angeles County, and during his representation of Plaintiff, never made any personal appearances in Los Angeles County in the matter in which he represented Plaintiff.  (Decl. of Wiener ¶4.)  In addition, the Complaint admits Defendant is a resident of San Ramon, Contra Costa County.  (Complaint ¶7.) 

In opposition, Plaintiff argues the motion to transfer venue must be denied pursuant to C.C.P. §395(b) because Defendant conducted his business in Los Angeles County and Los Angeles is also where Defendant practices law.  (Opposition, pg. 4.)  Plaintiff argues Los Angeles County is proper for the convenience of witnesses, and it would promote the ends of justice because Plaintiff has no means to conduct litigation in Contra Costa County because she has never been to the county before, it is remote, she has physical pains and stress, she “doesn’t feel safe,” and the area “is not friendly to someone like her,” since she is a single, Asian woman not familiar with “things, places, and legal systems.”  (Opposition, pgs. 4-5.)  However, Plaintiff failed to submit evidence supporting her claim that Los Angeles is the proper venue for this action to warrant an order denying Defendant’s motion to transfer venue.  (Decl. of Na Wang ¶¶5, 9, Exh. 4.)

To the extent Plaintiff relies on C.C.P. §397(c) as a basis for the trial of this action to occur in Los Angeles County instead of Contra Costa County; this reliance is misplaced.  C.C.P. §397(c) provides that, “The court may, on motion, change the place of trial . . . [w]hen the convenience of witnesses and the ends of justice would be promoted by the change.”  However, §397 does not authorize Plaintiff to file an action in an improper venue; rather, it allows for a mechanism for the Court to determine that a trial in the proper venue would be more convenient, and as such, order a change in the place of trial based on a motion.  (Braunstein v. Superior Court of Monterey County (1964) 225 Cal.App.2d 691; Harris v. Cannon (1941) 42 Cal.App.2d 748.)  As such, Plaintiff’s argument that the instant action should remain in Los Angeles County pursuant to §397(c) is misplaced.  Plaintiff has not submitted competent evidence suggesting Los Angeles County is more convenient for witnesses in this action.  (Decl. of Na Wang ¶10.) 

Further, Plaintiff’s argument that the “ends of justice would be promoted” by venue in Los Angeles based on Plaintiff’s health complications requires a showing greater than a doctor’s note diagnosing Plaintiff with eye floaters and copies of Plaintiff’s prescription and bills for treatments.  (Decl. of Na Wang ¶¶8, 9, Exhs. 6, 7; see Simonian v. Simonian (1950) 97 Cal.App.2d 68, 68 [transferring venue based on Plaintiff’s affidavit in support of his motion, which declared Plaintiff had a heart attack, was confined in a sanatorium, and suffered a serious heart ailment that precluded travel to San Francisco from Los Angeles to prosecute claim].)

Based on the foregoing, Defendant’s motion to transfer venue is granted.

Attorneys’ Fees

C.C.P. §396b(b) provides that the Court, in its discretion, may award to the prevailing party the reasonable expenses and attorney’s fees incurred in making a motion to change venue. In determining whether to award expenses and fees, the Court should consider (1) whether an offer to stipulate to change venue was reasonably made and rejected, and (2) whether the selection of venue was in good faith given the facts and law.  (C.C.P. §396b(b).)           Defendant provides evidence that his counsel contacted Plaintiff prior to filing this motion to advise Plaintiff the action was filed in the wrong county.  (Decl. of Weinreb ¶¶2-3, Exh. A.)  Defendant declares his counsel requested Plaintiff stipulate to change venue to Contra Costa County, and Plaintiff did not agree.  (Decl. of Weinreb ¶¶2-3, Exh. A.)  Defendant argues Plaintiff may have believed venue was proper in Los Angeles because that is where the Defendant represented Plaintiff in the underlying action.  (Motion, pg. 3.)  It appears plaintiff selected the venue in good faith, considering Plaintiff is pro per.  (C.C.P. §396b(b).)  Accordingly, this Court denies Defendant’s request for attorneys’ fees.

          Plaintiff’s request for attorneys’ fees and costs is denied.

Dated: November 14, 2022

Hon. Monica Bachner

Judge of the Superior Court