Judge: Randall J. Sherman, Case: 2020-01166856, Date: 2022-11-18 Tentative Ruling

The Motion of Defendant Organic Pastures Dairy Company, LLC to Change Venue is denied.

Defendant has failed to show, consistent with CCP §397(c), that the convenience of witnesses and the ends of justice would be promoted by a change of venue to Fresno County.  The affidavits in support of a motion for change of venue on this ground must set forth the names of the witnesses, the nature of the testimony expected from each, and the reasons why the attendance of each would be inconvenient.  Peiser v. Mettler (1958) 50 Cal. 2d 594, 607.  Defendant’s moving declarations simply provide, in ¶4 of attorney Lee’s Declaration, “I anticipate that Plaintiff will require depositions from witnesses and/or experts that Defendant intends to call to trial.  The depositions will require several trips to Fresno County to complete the several depositions of the following witnesses and/or experts all of whom reside in Fresno County: Aaron McAfee, Mark McAfee, Defendant’s production manager, employee in charge of marketing, supervisor in charge of manufacturing, employees responsible for feeding the cows to discuss dietary restrictions, inspectors that monitor dairy farm product production, testing that has been conducted and experts from the Food and Drug Administration attesting to required standards.”

The only witness names defendant provides are two of its own owners/managing agents.  Defendant lists other positions, not of witnesses it intends to call at trial, but of witnesses it guesses plaintiff will want to depose.  However, “except under limited circumstances, the court may not consider the convenience of the parties or of their employees in passing upon the motion”.  Lieberman v. Superior Court (1987) 194 Cal. App. 3d 396, 401.  One such exception is “when the employees are called as witnesses by the adverse party rather than on behalf of their employer.”  Id.  But the court cannot conclude that plaintiff will want to call the witnesses defendant identifies.  Thus, defendant’s employees must be considered defense witnesses, not plaintiff’s witnesses, and their county of residence is not considered on this motion.  As to FDA experts, defendant fails to state their names or establish where they reside.  Thus, defendant has failed to meet its burden of proof on this motion.

Further, the court finds an unreasonable delay in defendant waiting almost a year after first appearing in this case on August 30, 2021 until filing this motion on August 11, 2022.  Ventura Unified School Dist. vs. Superior Court (2001) 92 Cal. App. 4th 811, 815.

A Status Conference is also set for today and will go forward.

Defendant is ordered to give notice unless notice is waived.