Judge Ralph C. Hofer, Case Number: 23GDCV01498, Date: 2024-01-12 Tentative Ruling

Plaintiffs David Montes and Consuelo Montes allege that in March of 2019 plaintiffs purchased a 2019 Ford F-150, for which defendant Ford Motor Company (Ford) issued a written warranty, pursuant to which Ford 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.

Plaintiffs allege 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 plaintiffs’ 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 plaintiffs delivered the vehicle to defendant Future Ford of Clovis (Future Ford) for repairs on numerous occasions, and that defendant breached its duty to plaintiffs to use ordinary care and skill by failing to properly store, prepare, and repair the vehicle in accordance with industry standards, causing plaintiffs damages.

The complaint alleges three causes of action under the Song-Beverly Consumer Warranty Act, for Breach of Express Warranty, Breach of Implied Warranty, and Section 1793.2, as well as a fourth cause of action for negligent repair.

“…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 Ford on July 19, 2023 would have been August 18, 2023. Thirty days after service by substituted service, permitting an additional fifteen days, would have been September 2, 2023. The motion was served on November 10 and filed on November 13, 2023. Using the date of service on November 10, 2023, the motion as brought by Ford was 84 days late. The motion was brought by Future Ford was 69 days late. The motion accordingly could be denied as untimely, but the court elects not to do so.

Defendants Ford and Future Ford bring this motion arguing that venue is appropriately transferred because Los Angeles is not the proper venue for this action or because it would be a hardship and inconvenience for witnesses to travel to Los Angeles County to participate in discovery and trial.

“A corporation or association 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.”

Defendants argue that the complaint alleges that plaintiffs reside in Fresno County, Ford’s principal place of business is in the state of Michigan, Future Ford’s principal place of business is in the City of Clovis in Fresno County, the sales contract was executed in San Bernardino County, and no warranty repairs were performed in Los Angeles County.

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.).”

Defendant Ford here has failed to submit admissible evidence to meet its burden of showing venue selection is not proper as to Ford under any ground. The Request for Judicial Notice submitted shows that in US Securities and Exchange Commission documents, Ford identifies its state of incorporation as Delaware, and its address of principal executive offices to be in Michigan. [RFJN, Ex. 1, p. 1]. There is no showing submitted concerning Ford’s principal place of business in the state of California, as is usually submitted, so that the court can confirm that as to this corporate defendant, Los Angeles County is not a proper venue.

Moreover, it is held that a corporate defendant may only move for a transfer to its county of its principal place of business. Beutke v. American Securities Co. (1955) 132 Cal.App.2d 354. It is also held that where a corporate defendant is not registered to do business in this state, defendant is considered a foreign corporation and may be sued in any County of this state. In Easton v. Superior Court (1970) 12 Cal.App.3d 243, the court of appeal issued a peremptory writ of mandate compelling the trial court to vacate an order granting a change of venue, finding that where the status of a defendant is that of a foreign corporation, with no proof the corporation has qualified to do business in California, “it may be sued in any county in the state.” Easton, at 246-247.

Without a showing that Fresno County is Ford’s principal place of business in this state, or, indeed, that Ford is qualified to do business in California, the showing in support of the motion is insufficient to meet defendants’ burden of defeating venue in Los Angeles County on all grounds, as required, and the motion is denied on this ground.

Defendants argue, in the alternative, that even if Los Angeles County is an appropriate venue and this case could be filed in more than one county, this matter should still be transferred to Fresno County to promote the ends of justice.

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:

“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. However, the court anticipates that once the defendants have conducted some discovery, defendants’ counsel will be able to identify witnesses, most of whom most likely would be located in Fresno County. The court would accept stipulation for change of venue to Fresno County.

The moving papers argue that the court must take into account that key party witnesses in this case, including service managers, technicians, and other employees of Future Ford will have relevant information regarding the servicing and repair of the subject vehicle. Defendants argue that since common sense dictates that these Future Ford employees live in or around Fresno County, which is approximately 250 miles from Los Angeles Superior Court, they would face a significant hardship in participating in this action. Defendants also argue that it is anticipated that plaintiffs’ friends or family who may have witnessed the alleged nonconformity to warranty would also be located near plaintiffs’ residence in Fresno County.

Defendant relies on a declaration of counsel which submits repair orders from Future Ford in Clovis and another repair facility in Hemet, and states that Future Ford party witnesses will have relevant information regarding the servicing and repair history of the subject vehicle. [Gruzman Decl., paras. 4, 5, 7].

There is no identification of specific witnesses, their expected testimony, or their place of residence, so how these witnesses would be inconvenienced. It is also not explained where witnesses for Ford or documents concerning Ford’s warranty and conduct concerning the warranty would be located to demonstrate some imbalance or impact on the “ends of justice” with respect to the alleged inconvenience of proceeding in Los Angeles County. However, the court anticipates that once the defendants have conducted some discovery, defendants’ counsel will be able to identify witnesses, most of whom most likely would be located in Fresno County. The court would accept a stipulation for a change of venue to Fresno County.

The showing here fails to establish sufficient facts or details to support a finding that Los Angeles County would be an inconvenient forum, and the motion to transfer venue will also be denied with respect to this relief.

Defendants have 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 the convenience of witnesses and the ends of justice would be promoted by a transfer in venue from Los Angeles County.

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.