Judge: Monica Bachner, Case: 22STCV17539, Date: 2022-12-08 Tentative Ruling

Case Number: 22STCV17539    Hearing Date: December 8, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Julie Chacko, M.D.’s, Thomas Bosma, PA-C’s, and Urology Specialists of Santa Barbara’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 Santa Barbara County Superior Court.  (See C.C.P. §399(a).)

Defendant Cottage Health’s motion to transfer venue is granted. 

          Defendant Cottage Health (“Cottage”) (“Defendant”) moves for an order transferring venue of this action filed by Plaintiffs Joe Bourdeau (“Joe”) individually and as administrator of the Estate of Sandra Bourdeau, Sandra Bourdeau (“Sandra”) (“Decedent”) by and through her successor in interest Joe, and Shawna Bourdeau Woltz (“Shawna”) (collectively, “Plaintiffs”), from the Los Angeles Superior Court to the Santa Barbara Superior Court pursuant to C.C.P. §395(a) on the grounds that Plaintiffs allege they and their decedent were injured by care and treatment provided to decedent solely and exclusively within Santa Barbara County.  (Cottage Motion, pg. 4.)  Defendants Julie Chacko, M.D. (“Chacko”), Thomas Bosma, PA-C (“Bosma”), and Urology Specialists of Santa Barbara (“USSB”) (“USSB Defendants”) move separately for an order transferring venue of this action from Los Angeles Superior Court to Santa Barbara County Superior Court pursuant to C.C.P. §§395, 396(b), and 397 on the grounds that all defendants reside in Santa Barbara County and/or have their principal place of business in Santa Barbara County, and all allegations giving rise to this case occurred in Santa Barbara County.  (Notice of Motion USSB Defendants, pgs. 1-2.)

          The Court notes Defendant Scott Saunders, M.D. (“Saunders”), has not filed papers on the instant motion or in this action.

          Background

          Plaintiffs filed their initial complaint (“Complaint”) on May 27, 2022, against Defendant Cottage, USSB Defendants, and Saunders (collectively, “Defendants”).  Plaintiffs filed their operative first amended complaint (“FAC”) on November 8, 2022, alleging Decedent’s January 15, 2021, treatment by Defendant Cottage for a UTI, for which Sandra was prescribed Zofran and Keflex, treatment by USSB Defendants on January 22, 2021, for which Defendant Bosma prescribed Macrobid, treatment by Defendant Saunders on January 26, 2021, for Covid-19, for which Defendant Saunders prescribed Ivermectin, and treatment on February 24, 2021, by Defendant Bosma, who prescribed an additional regimen of Macrobid.  (FAC ¶¶18-24.)  Decedent died on March 6, 2021, at Cedar Sinai Hospital in Los Angeles, California.  (FAC ¶33.)  Plaintiffs assert two causes of action for (1) wrongful death; and (2) medical malpractice.

The FAC’s allegations supporting venue are as follows:

Plaintiff, Joe Bordeau at all times relevant hereto was a resident of the State of California, County of Santa Barbara.

Plaintiff Shawna Bourdeau Woltz, at all times relevant hereto is the daughter of the decedent, Sandra Bourdeau and resides in Island County, Washington.

Plaintiff, Sandra Bourdeau is the Deceased whose rights are being asserted by her successor in interest, Joe Bourdeau. Sandra Bourdeau passed away in Los Angeles County, California on March 6, 2021.  

Defendant Cottage Health at all times relevant hereto is a California Corporation duly and validly existing in the State of California and doing business in Santa Barbara County and the State of California.

Defendant Thomas Allen Bosma, PA-C, at all times relevant hereto was a resident of the State of California, and doing business in Santa Barbara County and the State of California.

Defendant, Julie Chacko, M.D. at all times relevant hereto was a resident of the State of California, and doing business in Santa Barbara County and the State of California.

Defendant Urology Specialists of Santa Barbara at all times relevant hereto was a California corporation duly and validly existing in the State of California and doing business in Santa Barbara County.

Defendants Thomas Allen Bosma, PA-C, and Julie Chacko, M.D., at all times relevant hereto were employed by Urology Specialists of Santa Barbara.

Defendant, Scott Saunders, M.D. at all times relevant hereto was a resident of the State of California, and doing business in Santa Barbara County.

(FAC ¶¶2-10.) 

On June 22, 2022, Defendant Cottage filed its motion to transfer venue.  On June 30, 2022, USSB Defendants filed their motion to transfer venue.  Plaintiffs filed their opposition to USSB Defendants’ motion on July 14, 2022, and their opposition to Defendant Cottage’s motion on November 18, 2022.  USSB Defendants filed their reply on July 20, 2022.  Defendant Cottage filed its reply on December 2, 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. If the action is for injury to person or personal property of for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action.”

C.C.P. §395.5 provides: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.”

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.)

1. USSB Defendants’ Motion

USSB Defendants have met their burden to establish Plaintiff’s choice of venue was improper.  Defendants Bosma and Chacko declare that at the time of the commencement of this action through the present, they have resided in the City of Santa Barbara, California, and are residents of Santa Barbara County.  (Decl. of Bosma ¶2; Decl. of Chacko ¶2.)  Defendant Chacko declares that she is the owner of Defendant USSB, Defendant USSB’s principal place of business is in Santa Barbara, and Defendant USSB does not do any business in Los Angeles County.  (Decl. of Chacko ¶¶3, 5.)  Defendants Bosma and Chacko declare they were involved in the treatment of Decedent, and all care and treatment occurred in Santa Barbara County.  (Decl. of Bosma ¶3; Decl. of Chacko ¶4.)  Unlike the defendants in Tokuzo Shida, Defendants Bosma and Chacko show facts indicating injury did not occur in Los Angeles County. (See Decl. of Bosma ¶3; Decl. of Chacko ¶4.)  Here, Defendants Bosma’s and Chacko’s declarations demonstrate that all alleged liability, breaches, and injuries subject to Plaintiffs’ medical malpractice cause of action occurred in Santa Barbara County, and as such, a mixed cause of action to change venue must be granted on the entire complaint if Defendant are entitled to a change of venue on any one cause of action.  (Brown, 37 Cal.3d at pg. 488.)  

In opposition, Plaintiffs argue C.C.P. §395.5, authorizes suit in Los Angeles County, the county where liability arose, on the basis that a cause of action for wrongful death ordinarily accrues on the date of the death of the decedent.  (Larcher v. Wanless (1976) 18 Cal.3d 646, 657-659; Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680, 1684.)  Plaintiffs argue USSB Defendants have not met their burden to negate the propriety of venue in Los Angeles County on all possible grounds.  (Karson Industries, Inc. v. Superior Court of Contra Costa County (1969) 273 Cal.App.2d 7, 8-9; Tokuzo Shida v. Japan Foods Corp. (1960) 185 Cal.App.2d 443, 448.)  However, unlike Tokuzo Shida v. Japan Foods Corp., the defendants here have presented declarations that the injury occurred in Santa Barbara County. Even if, the decedent’s death was deemed the “injury” in the context of C.C.P. § 395, “in cases with mixed causes of action, a motion to change venue must be granted on the entire complaint if the defendant is entitled to change of venue on any one cause of action.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 488.) Here, the alleged negligence occurred in Santa Barbara County.

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 Santa Barbara 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.  Moreover, Plaintiff has not submitted competent evidence suggesting Los Angeles County is more convenient for witnesses in this action.  

Accordingly, USSB Defendants’ motion to transfer venue is granted.  Plaintiffs are to pay transfer fees of $50 to the Los Angeles Superior Court and $435 initial filing fee to Santa Barbara County Superior Court.  (See C.C.P. §399(a).)]

1. Defendant Cottage’s Motion

Defendant Cottage have met their burden to establish Plaintiff’s choice of venue was improper.  Defendant Cottage argues all named defendants are noted within the operative pleading as residing in or doing business in Santa Barbara County.  (Motion, pg. 3.)  Defendant Cottage further argues the operative pleading does not place the care provided to Decedent at Cedars-Sinai Medical Center at issue, and Cedars-Sinai is not a named defendant in the instant matter.  (Id.)  Rather, the operative pleading concerns allegations of negligence which occurred exclusively in Santa Barbara County; pursuant to C.C.P §395(a) the Superior Court of Santa Barbara County is the proper venue for this action.  (Id. at 3-4.)  Plaintiffs’ reliance on Tokuzo Shida is misplaced, considering the “wrongful invasion of legal rights” if any, in this matter, is alleged to have occurred in Santa Barbara County, where the alleged negligent care and treatment arose. 

Plaintiffs reiterate their arguments above in opposition to Defendant Cottage’s motion. Plaintiffs also argue that Section 395.5 provides venue as to the corporation in Los Angeles.  That section does not change this result as it provides “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.” Here, as discussed above, the liability arose in Santa Barbara County.

Accordingly, Defendant Cottage’s motion to transfer venue is granted. 

Dated: December _____, 2022

Hon. Monica Bachner

Judge of the Superior Court