Judge Ralph C. Hofer, Case Number: 23GDCV01177, Date: 2023-09-29 Tentative Ruling

Plaintiff Kashif Khan alleges that in February of 2021 plaintiff leased a 2021 Mercedes-Benz S560, for which defendant Mercedes-Benz USA, LLC (Mercedes) issued a written warranty, pursuant to which Mercedes agreed to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiff alleges that the vehicle was delivered to plaintiff with serious defects and nonconformities to warranty, including the vehicle’s suspension, steering, structural, electrical, engine, emission and transmission system defects.

Plaintiff alleges that the defects and nonconformities to warranty manifested themselves within the express warranty period, and substantially impair the use, value, or safety of the vehicle. Plaintiff delivered the vehicle to manufacturer’s authorized repair facility for repair of the nonconformities, and defendant has been unable to conform plaintiff’s vehicle to the applicable express warranties after a reasonable number of attempts. The complaint alleges that notwithstanding plaintiff’s entitlement, defendant has failed to either promptly replace the vehicle or to promptly make restitution in accordance with the Song-Beverly Act.

The complaint also alleges that plaintiff delivered the vehicle to defendant Mercedes-Benz of Foothill Ranch (Mercedes Foothill Ranch) for repairs on numerous occasions, and that defendant breached its duty to plaintiff to exercise ordinary care and skill by failing to properly store, prepare and repair the vehicle in accordance with industry standards, causing plaintiff damages.

The complaint alleges two causes of action under the Song-Beverly Consumer Warranty Act, for Breach of Express Warranty, and Breach of Implied Warranty, and a third cause of action (entitled the “Fourth Cause of Action) for negligent repair.

It is not clearly stated in the motion, but it appears that a transfer is requested pursuant to CCP § 396b, which provides, in pertinent part:

“…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.”

CCP § 430.40(a) provides, “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” Under CCP § 585 judgment by default may be had if “no answer, demurrer,…notice of motion to transfer pursuant to Section 396b…has been filed with the clerk of the court within the time specified in the summons…” (Emphasis added).

Thirty days after personal service on June 21, 2023 would have been July 21, 2023. The motion was served and filed on July 31, 2023, ten days late. The motion accordingly is denied as untimely.

It is difficult to tell what relief is being requested by the moving papers. The notice of motion seeks “an order transferring venue to the Van Nuys Superior Court.” The notice then states that “the ends of justice would be promoted by a change of venue to the West Covina Courthouse.”

The memorandum then again indicates that “Plaintiff’s causes of action, as alleged, arose in West Covina.” [Motion, p. 2:19-20]. The motion then states,

“Plaintiff’s Complaint states that he resides in the City of Lake Forest, Orange County, and all alleged wrongful acts with respect to warranty claims took place at Mercedes-Benz of Foothill Ranch, located in Orange County, and Mercedes-Benz of West Covina, Located in West Covina, Los Angeles County. Taking Plaintiff’s allegations as true, his causes of action arose in Orange County and the majority of witnesses and evidence, including Plaintiff himself, are located in Orange County.”

The motion then continues to request that the “Court should transfer this action to West Covina Courthouse.” [Motion, p.3:3-4]. It appears that the motion is not properly noticed if it is intended to seek a transfer between Districts in the Los Angeles Superior Court, as Van Nuys and West Covina are different districts, and if the motion is intended to seek a transfer to a different County, Orange County, the motion is also not properly noticed. In fact, the conclusion again requests that “the venue for this action be transferred to the West Covina Courthouse.” [Motion p. 4:10-11].

To the extent the motion is intended to transfer the matter to another district, such as West Covina or Van Nuys, it is not clear that it is properly brought, as Los Angeles Superior Court Local Rules, Rule 2.3 (b)(2) provides, with certain exceptions not applicable here, “motions to transfer a civil action from one district to another, including motions based upon a failure to file the case in accordance with the requirements set forth in this Chapter must be made in Department 1 in the Central District.”

If the motion is intended to be one to transfer the action to Orange County, there is an insufficient showing submitted that the matter was filed in an incorrect County.

It appears that defendant is arguing that the only conduct which occurred in Los Angeles County was the formal leasing of and delivery of the vehicle in West Covina, (unless it occurred in Van Nuys).

“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.”

Defendant’s argument appears to be that plaintiff resides in Orange County, the repairs occurred in Orange County, and the sole connection with Los Angeles County is that plaintiff purchased the vehicle in West Covina, Los Angeles County. Los Angeles County was accordingly where the contract was performed, so it is a proper place for venue.

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.

Moreover, with respect to CCP section 395.5, governing venue as to corporations such as moving defendant, it is recognized that the venue statute:

“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.).”

Defendant here has failed to submit admissible evidence to meet its burden of showing venue selection is not proper under any ground. The declaration submitted states that plaintiff’s address at the time of the lease was in Orange County, and that the repairs were made in Foothill Ranch, (which had to be looked up to see if it is in Orange County). [Farner Decl., para. 2, 5]. As discussed above, venue has not been defeated on all grounds, as it is conceded that the vehicle was leased in Los Angeles County. [Farner Decl., para. 2]. In addition, there is no evidence concerning the county of moving defendant’s principal place of business.

Moreover, is it held that a corporate defendant may only move for a transfer to the county of its principal place of business. Beutke v. American Securities Co. (1955) 132 Cal.App.2d 354.

Finally, to the extent this motion seems to argue that Los Angeles County would be an inconvenient forum, the motion does not include the showing necessary to establish such a circumstance. See CCP § 397; Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295. Flanagan v. Flanagan (1959, 2nd Dist.) 175 Cal.App.2d 641, 646:

“There can also be no doubt that before such a motion can be granted there must be some showing of both convenience of witnesses and that the ends of justice will be served by the change. And it is equally clear that the affidavit supporting the motion must aver the facts from which such a conclusion may be reached: It is also apparent that, aside from the bare averment that the ends of justice would be served by the change, there was no specific averment as to the facts that are relied upon to support such averment. In the affidavit at bar there appears not even the bare averment that the ends of justice would be served by changing the trial from San Luis Obispo County to the County of Los Angeles.

Procedurally, the motion is untimely, as not brought within the time allowed to respond to the complaint, as required by CCP section 396b (a).

The notice of motion is unclear, seemingly requesting a transfer to West Covina or to Van Nuys, while at other points in the motion the transfer requested appears to be to Orange County.

To the extent the request is for a transfer to a different district within Los Angeles County, such as West Covina, pursuant to Los Angeles Superior Court Local Rule 2.3, subdivision (b)(2), with certain exceptions not applicable here, “motions to transfer a civil action from one district to another, including motions based upon a failure to file the case in accordance with the requirements set forth in this Chapter must be made in Department 1 in the Central District.”

Defendant has also failed to meet any recognized burden of establishing that this action was not commenced in the proper court, that venue is not proper in this County, or that this current department is an inconvenient forum.

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