Judge Ralph C. Hofer, Case Number: 23GDCV01120, Date: 2023-09-29 Tentative Ruling

Plaintiffs Jose Fernandez Vargas and Denise Parra bring this action as the heirs and successors in interest of decedent Jose Fernandez III, alleging that in March of 2022, decedent, who was under the age of 21, was an invitee of defendant Applebee’s Bar at the Applebee’s Neighborhood Grill + Bar Restaurant, located in Watsonville, California.

The complaint alleges that defendants illegally and negligently served multiple alcoholic beverages to decedent, a minor, and continued to sell or furnish alcoholic beverages to decedent after decedent was obviously intoxicated, so as to cause decedent to operate a motor vehicle while impaired, thereby causing decedent’s death and plaintiff’s damages.

The complaint alleges that defendant Apple Mid Cal LLC (Applebee’s Bar/AMC) owned the Applebee’s Neighborhood Grill, the subject premises. It is also alleged that defendant Stephanie Valle was an employee of Applebee’s Bar in the capacity of bar tender, and defendant Judith Sandoval was an employee of Applebee’s Bar in the capacity of a server. The complaint alleges that defendant Applebee’s Restaurants, LLC (Applebee’s Restaurants/ARLLC) and defendant Dine Brands Global, Inc. (DBG) (collectively, “Applebee’s Enterprises”) reserved the right of general control over defendants Applebee’s Bar and its employees in their relevant day-to-day operations, and also controlled hiring, direction, supervision, discharge and relevant day-to-day behavior as it relates to the service of alcoholic beverages to customers, and were responsible for the conduct of its agents, and also owed duties to decedent that cannot be delegated arising from a special relationship, and involving a special or peculiar risk of harm, including the sale of alcoholic beverages to members of the public.

Defendants argue that the basis for venue in Los Angeles County, the residence of defendants Applebee’s Restaurants/ARLLC and DBG, should not be considered in determining venue, as these defendants were either fraudulently or improperly joined as defendants in this matter. Defendants argue that since those defendants were improperly joined, the question of venue must be evaluated based on defendant Applebee’s Bar/AMC and the individual defendants alone, so the case must be transferred out of Los Angeles County, and that since venue is proper in Santa Cruz County, and all witnesses live or are located there or near there, the case should be transferred to Santa Cruz County.

“(a) 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 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.”

“If any person is improperly joined as a defendant or has been made a defendant solely for the purpose of having the action tried in the superior court in the county where he or she resides, his or her residence shall not be considered in determining the proper place for the trial of the action.”

“A corporation may be sued in the county where the contract was 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.”

“…if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant…within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court…. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.”

As stated in the statute, a motion for change of venue concedes that this action was commenced in a court having jurisdiction of the subject matter of the action but depends on a showing that this court is not designated, “under this title,” as a proper court for the trial of the action or proceeding.

It is held that plaintiff’s venue choice is ordinarily presumed to be proper, and that it is the burden of the moving party on a motion for change of venue, “to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds.” Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836, citations, quotation omitted; see also Karson Industries, Inc. v. Superior Court (1969) 273 Cal.App.2d 7, 8-9.

“must be read in light of the paramount purpose of section 395.5, which is to permit a wider choice of venue against corporations or associations than would be permitted in suits against individuals. (See Mission Imports, supra, 31 Cal.3d at p. 928.).”

Those defendants then submit a declaration of an Associate General Counsel at Applebee’s Restaurants /ARLLC stating that, counsel has “become familiar with the entity which owns, operates, manages, and otherwise controls the operations of the ‘Applebee’s’ restaurant in Watsonville,” and that the restaurant “was owned, operated, managed and maintained by defendant AMC alone, including on the date of the subject accident.” [Murphy Decl., para. 2]. The declaration also confirms, “as reflected in the filing defendant AMC made with the California Secretary of State, AMC has its principal place of business in San Francisco, and thus in San Francisco County.” [Murphy Decl., para. 4].

Defendants also submit a declaration of the Executive Director of DBG, who also states that ARLLC and DBG “do not own, operate, manage, or control the operations of the Applebee’s Grill + Bar” which is the subject of this action, “nor do they employee or manage any of the employees” there. [Darby Decl., para. 2]. The declaration states that at the time the premises “were independently owned and operated” by the franchisee Apple Mid Cal II, LLC, not ARLLC or DBG, so that those defendants “bear no liability for the alleged incident were therefore not properly joined as defendants in the action.” [Darby Decl., paras. 2, 3]. No independent documentation to support either of these declarations is submitted.

A motion to transfer bears the burden of negating the propriety of venue on all possible grounds. Karson Industries, Inc. v. Superior Court (1969) 273 Cal.App.22 7, 8-9; See also Easton v. Superior Court (1970) 12 Cal.App.3d 243, 245-46.

Under McClung v. Watt (1922) 190 Cal. 155, 160, the burden for showing that a joinder was improperly made for purposes of fixing venue is heavy: the California Supreme Court held that in order to support a claim of sham joinder, the defendant must show the allegations of fact against the “sham” defendants are in nowise related to the facts alleged against the other defendants and would not in any event or any view of the case warrant the inference that the “sham” defendants were proper parties.

Plaintiffs in opposition submit filings from the United States Securities and Exchange Commission on behalf of Dine Brands Global, Inc., which include language giving rise to an inference that this party may have exercised the type of control over the franchisee which is alleged in the complaint. The Form 10-K Statement for Fiscal Year Ended December 31, 2022, states, for example:

“We and our franchisees are also subject to "dram shop" laws in some states pursuant to which we and our franchisees may be subject to liability in connection with personal injuries or property damages incurred in connection with wrongfully serving alcoholic beverages to an intoxicated person.

Although our franchise agreements require our franchisees to defend and indemnify us, we may be named as a defendant and sustain liability in legal proceedings against franchisees under the doctrines of vicarious liability, agency, negligence or otherwise.”

This showing is sufficient to provide evidence that this defendant DGB is not being pursued as a sham defendant, but that there is reason for plaintiff to believe DBG maintained control over and can be held responsible either directly or vicariously for the conduct of the other defendants in a lawsuit such as this one implicating California’s dram shop laws.

Venue accordingly appears appropriate in Los Angeles County in connection with at least one of the named defendants, DBG, which does not appear to be improperly joined as a defendant or to have been made a defendant solely for the purpose of having the action tried in the county where it resides.

Defendants in reply object to the admissibility of plaintiffs’ evidence as being submitted under the declaration of counsel for plaintiffs, who would have no personal knowledge of the matters sought to be established. However, the above quoted SEC filing appears to be the type of document of which the court could properly take judicial notice, and the material is not offered necessarily for its truth, but for the fact that the information has been disseminated by DBG for consideration by the SEC and its shareholders.

The court finds that the showing submitted by defendants is self-serving, and not supported by documentation, and that the conflicting showing by plaintiffs is sufficient to satisfy the court that the inclusion of defendant DBG in this lawsuit was not improper or made solely for the purpose of having the action tried in the county where DBG resides.

As noted above, and confirmed by defendants’ declarations, the corporate entity which does admit it controlled the subject premises in Watsonville, AMC, has its principal place of business in San Francisco County. [Murphy Decl., para. 3]. AMC does not seek to transfer to San Francisco County, but to Santa Cruz County. This approach is not proper on a motion to transfer venue on these grounds.

The burden of proving that both the convenience of witnesses and the ends of justice would be promoted is on the moving party. Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295. A determination of, “change of place of trial for convenience for witnesses and the promotion of the ends of justice is discretionary with the trial court and subject to reversal only on a clear showing of abuse…” Flanagan v. Flanagan (1959, 2nd Dist.) 175 Cal.App.2d 641, 643, citations omitted.

Defendants argue that here the convenience of the witnesses and the ends of justice would be promoted by transferring the case to Santa Cruz County and provide a list of thirteen witnesses who have knowledge of the incident or facts relevant to the case, who all live in or near Santa Cruz County. Specifically, counsel for defendants indicates that counsel’s firm reviewed the police report and other documents bearing on the incident, and contacted all those persons involved, including those who responded to the scene of the incident, and indicates that the following witnesses reside or are located in Santa Cruz County: The ambulance/first responders, the tow truck operator, the Santa Cruz County Sheriff’s Deputy Sheriff, the Watsonville Police Department Investigating Officer, the City of Watsonville Crime Analyst, the Assistant Investigator for the Santa Cruz County District Attorney’s Office, the Santa Cruz County Medical Examiner which tested the blood alcohol level of decedent, an individual who witnessed the accident, and the two Applebee’s managers at the time. [Rivera Decl., para. 3].

The emergency room physicians who treated decedent are identified as being located in Salinas, in Monterey County, and a Safety and Security Manager for Planned Parenthood, which took video of the accident, is identified as being located in San Francisco County. [Rivera Decl., para. 3].

The witnesses are identified by name, role and county of location or residence. [Rivera Decl., para. 3]. The Murphy Declaration also confirms that the Applebee’s managers of the restaurant at issue at the time of the incident will likely be called as witnesses, but indicates that they reside in cities in Monterey County, not Santa Cruz County. [Murphy Decl., para. 5].

Defendants also submit the declarations of the two individual defendants, a server and bartender at the subject premises at the time of the incident, who will undoubtedly be called as witnesses, and who are not included in the above list.

Defendant Valle states that she was working at the restaurant on the evening at issue, but now works at the Applebee’s restaurant in Salinas, California, in Monterey County. [Valle Decl., para. 2]. Valle indicates she is presently on maternity leave, and states:

“My child was born on April 23, 2023. Both my gynecologist and my child’s pediatrician are located in Salinas, and I need to remain close to them for my post-partum care and the care of my child. In the latter regard, I make regular visits to my child’s pediatrician for her care. While on maternity leave, I am fully occupied with caring for my child. I also have 3 other young children and am occupied with caring for them as well. It would accordingly be a severe hardship for me to travel to Los Angeles County to defend myself against this action. It would be much better for me if the case goes forward in Santa Cruz County.”

The declaration of defendant Judith Reyna-Sandoval indicates that she previously was working in the restaurant in Watsonville, where she presently lives and works, which is in Santa Cruz County. [Reyna-Sandoval Decl., para. 2]. She also indicates that in addition to working five days per week, she is a student at California State University at Monterey Bay, located in Monterey County, and regularly attends classes there. She states:

In addition, the moving parties provide a factual showing that the ends of justice would be served, including the specific hardship to defendants Valle and Reyes-Sandoval, and the general hardship to many of the witnesses with no stake in this matter who would be expected to leave their work and homes to travel over 300 miles to Los Angeles County to provide testimony in this matter. Defendants argue that it takes time, effort and money to travel, is difficult to be several hundred miles away from one’s home, family and work while participating in a trial, and travel in this case would necessarily involve air travel, which comes with great expense and loss of time.

The opposition argues that to support a motion under CCP section 397, defendants must provide the names of all witnesses expected to testify for the moving parties, describe the substance of their expected testimony and explain why the testimony is material, relevant and admissible. The argument is that the court must have enough information to evaluate the materiality of the testimony.

It would appear that the table and declarations provided by defendants provide a description or name of the witnesses, and their role in the evening of the incident, so that the expected testimony can be easily determined by the court. For example, the witness Jonathan Hershberger, the Safety and Security Manager for Planned Parenthood, “which took video of the accident,” would be expected to authenticate the video which shows the accident and explain the camera angles and provide other information necessary to interpretation of the video. [Rivera Decl., para. 3, no. 10]. The detail provided is sufficient for this court to evaluate the facts supporting the issues, particularly at this early stage of the litigation, when plaintiffs evidently refused to extend the courtesy of permitting defendants any extension of time to plead beyond thirty days after service. [Rivera Decl., para. 2].

The opposition also argues that inconvenience would take into account factors such as a witness’ poor health, or that travel would cause economic hardship. However, such factors are what is shown here. Plaintiffs argue that the court will generally limit consideration of the inconvenience of witnesses to nonparty nonexpert witnesses, but such witnesses are discussed here, and plaintiffs have pointed to none of the identified witnesses who would be expected to be called as experts. As for party witnesses, defendant Valle has indicated she has issues including being on maternity leave tending to her newborn, with attendant medical appointments, not a minimal hardship.

Plaintiffs also seems to argue that inconvenience is not established because remote appearances are commonplace in the post-COVID era, that depositions are regularly conducted remotely, and that “in the rare event that a witness is unable to appear, or travel would impose undue hardship on a witness, virtual appearances are commonplace throughout California.” This argument is not an offer of plaintiffs to accept remote appearances except in cases of inability to appear or undue hardship from travel, which does not alleviate the overall convenience concerns. The reply argues that this argument suggests that there would be little inconvenience to plaintiffs under such a scenario, as plaintiffs’ attorneys, who are located in Los Angeles County, would be better equipped to conduct business remotely in Santa Cruz County than most other interested parties in Santa Cruz County would be to participate remotely in proceedings in a distant County.

The opposition does not explain what witnesses who reside in Los Angeles County would be called as witnesses for plaintiffs or explain their role or importance to the trial of this matter. The opposition argues broadly that Los Angeles County is where decisions that govern, manage, regulate, and control all of Applebee’s restaurants throughout California, including the Watsonville Applebee’s, originate. While plaintiffs make this argument, they fail to indicate what witnesses who are located distant from Santa Cruz County will be necessary to appear at trial on this matter.

Overall, defendants have sufficiently established that the convenience of witnesses and the ends of justice would be promoted by changing the place of trial of this matter to the County of Santa Cruz. The motion is granted on this ground.

The Court finds, pursuant to CCP § 397 (c) that defendants have sufficiently shown that the convenience of witnesses and the ends of justice would be promoted by changing the place of trial of this matter to the County of Santa Cruz.

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