Benjamin Clemmons, et al. v. Greyhound Lines, Inc., et al.

DEFENDANT’S MOTION TO TRANSFER VENUE

 

MOVING PARTY: Defendant Greyhound Lines, Inc.; Defendant Flixbus, Inc.  [FN 1]

RESPONDING PARTY(S): Plaintiff Aids Healthcare Foundation

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

The action arises over an accident involving a Greyhound bus. Plaintiffs were passengers on the bus who allegedly sustained injuries, and bring this action against Defendants Greyhound Lines, Inc., Flix North America, Inc., Flixbus, Inc., and Brandon Wayne Pinkney. Plaintiffs assert causes of action for (1) negligence, (2) negligent hiring, supervision, and retention, and (3) negligent entrustment. 

Defendants Greyhound Lines, Inc., and Flixbus, Inc. move to transfer venue to Tulare County. Plaintiffs opposed.

TENTATIVE RULING:

Defendant’s Motion to Transfer Venue to Tulare County is GRANTED. 

Plaintiffs are to bear the costs and fees of transferring the action. 

Moving party is ordered to give notice.

DISCUSSION:

Motion to Transfer Venue

I. Judicial Notice

Pursuant to Defendant’s request, the court takes judicial notice of Exhibits A-D.

II. Legal Standard

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Superior Court of Alameda County (1984) 37 Cal.3d 477, 482.) A plaintiff’s choice of venue is presumptively correct, and defendant bears the burden of demonstrating that venue is not proper there. (Battaglia Enterprises, Inc. v. Superior Court of San Diego County (2013) 215 Cal.App.4th 309, 313-14.)

III. Analysis

A. Venue is Not Proper in Los Angeles County

1. Defendant Pinkney is Not a California Resident

Defendants move under CCP section 397, which allows for transfer “[w]hen the court designated in the complaint is not the proper court” or “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” (CCP § 397(a)&(c).) Defendants argue that “[v]enue is not proper in Los Angeles County as no defendant resides in Los Angeles County, the accident did not occur in Los Angeles County, and no defendant consents to venue in Los Angeles County.” (Mtn. 6: 14-16.) 

Under section 392 et seq., a plaintiff may file an action or proceeding in various locations, depending on the classification of the action and the classification of the parties. Where there are multiple parties and causes of action, venue may be proper in more than one county. Under section 397, subdivision (a), “[w]hen the court designated in the complaint is not the proper court,” the court may, upon motion, “change the place of trial.” Alternately, under section 397, subdivision (c), the court has discretion to transfer the case to another county “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change,” even if the complaint was filed in a “proper” county. (See Rycz v. Superior Ct. of San Francisco Cnty. (2022) 81 Cal. App. 5th 824, 836.)

The general rule of venue is that “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.” (CCP § 395(a).) But this is “subject to the power of the court to transfer actions or proceedings,” and recognizes that the general rule may change “where otherwise provided by law.” (Id.) Therefore, when another venue provision applies to a dispute, “the more specific venue provisions govern[].” (Brown v. Superior Ct. (1984) 37 Cal. 3d 477, 484.) “[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.” (Fontaine v. Sup.Ct. (2009) 175 Cal. App. 4th 830, 836, emphasis added.) In doing so, the corporate defendant challenging venue “has the burden of negating the propriety of venue as laid [o]n all possible grounds.” (Karson Indus., Inc. v. Superior Ct. of Contra Costa Cnty. (1969) 273 Cal. App. 2d 7, 8–9.) 

In opposition, Plaintiffs contend that venue is proper in Los Angeles County because Defendant Pinkney—the bus driver—resided in Beverly Hills at the time the action was filed. (Younes Decl. ¶ 5; Compl. ¶ 10.) The Traffic Crash Report prepared in response to the accident lists Defendant Brandon Wayne Pinkney as residing at 9430 Charleville Boulevard Apartment 6, Beverly Hills, CA 90212. (Younes Decl., Exh. A.)  

Defendant Pinkney has not been served or appeared in this action. Defendant presents evidence that Pinkney’s place of residence is New York, not California. Counsel for Defendant Greyhound, Po S. Waghalter, attests that in a June 8, 2023 phone call, “Brandon Pinkney informed [counsel] he resides in New York State, having moved to New York a month after the August 3, 2022 bus accident.” (Waghalter Decl. ¶ 5.) Counsel Waghalter also attests to have “obtained a current address for Mr. Pinkney of 55 W. Merritt Blvd, Fishkill, New York, 12524-2242,” by conducting a LexisNexis public records search on December 11, 2023 and again on December 27, 2023.) (Id. ¶ 5.) Finally, according to the Proof of Service filed by counsel for Rebecca McCormick in Rebecca McCormick v. Greyhound Lines, Inc., et al., Pinkney was served with the lawsuit in the McCormick action on February 26, 2024 at Bronx, New York. (Id. ¶ 6; Exh. 2.)

The court would agree that Defendant’s residence at the time of the August 3, 2022 accident might not be the best evidence of his residence “at the commencement of the action,” almost two years later, e.g. June 11, 2024. (CCP § 395(a).) This is bolstered by the declaration from counsel for Defendant attesting that Defendant Pinkney informed him that he moved to New York “a month after the August 3, 2022 bus accident.” (Waghalter Decl. ¶ 5.) Additionally, as recently as December 27, 2023, a public records search revealed that Pinkney lives in New York. Finally, Pinkney was personally served with a related lawsuit in the Bronx in February 2024. (Id. ¶ 6; Exh. 2.) 

With this in mind, Defendants have met their burden to establish that Defendant Pinkney is not a California resident. 

2. Defendants’ Principal Place of Business is Not in California

Separately, Plaintiffs contend that venue is proper in Los Angeles County because according to Defendants’ filings with the California Secretary of State, Defendants’ “registered corporate authorized employees are all located in Glendale, California.” (Younes Decl. ¶¶ 7, 8; Exhs. B&C.)

 “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.” (CCP 395.5.) 

Here, none of the corporate entity Defendants are headquartered in California. Plaintiffs concede as much. (See Younes Decl. ¶ 7 [stating “Defendants Flixbus North America, Inc. and Greyhound Lines, Inc. are headquartered in Dallas, Texas”].)  The moving party confirms that its principal place of business is Texas. (Waghalter Decl. ¶ 4.) 

Plaintiffs cite no authority for their position that the corporation’s place of authorized employees constitutes its “principal place of business” or residence under the venue analysis. Rather, as cited by Plaintiffs, a corporation’s principal place of business—at least in the context of diversity jurisdiction purposes—is generally considered to be the “nerve center.” (Hertz Corp. v. Friend (2010) 559 U.S. 77, 80.) This is the “place where the corporation's high level officers direct, control, and coordinate the corporation's activities.” (Id.) There is no indication that Defendants’ principal places of business are in California.

Thus, this court concludes Defendants have met their burden to establish that the none of the Defendants are located in California or Los Angeles County. Therefore, this is not a proper basis for jurisdiction in Los Angeles County. 

3. It is Irrelevant that the Greyhound Trip Started in Los Angeles

Finally, Plaintiffs argue venue is proper in Los Angeles County because it is undisputed that the Greyhound trip began in Los Angeles. (Younes Decl. ¶ 3; Compl. ¶ 19.)

Under CCP 395(a), “[i]f the action is for injury to person or personal property or 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.” (CCP 395(a) [emphasis added].)

Here, while the Greyhound bus may have started its trip in Los Angeles, it is undisputed that the “injury occur[red]” in Tulare County when the bus crashed. (See Compl. ¶ 28; Younes Decl. ¶ 3; Waghalter Decl. ¶ 13.) Therefore, this is not a basis for venue in Los Angeles County. 

Accordingly, Defendants have met their burden to establish that venue is not proper in Los Angeles County. 

B. Transfer to Tulare County is Warranted

Defendants argue venue “should be transferred to the proper venue Tulare County, where the accident occurred, where there are two pending lawsuits arising out of the same accident, and to which Defendant consents.” (Mtn. 7: 10-13.) 

“If a plaintiff has failed to heed the venue rules above, and the defendant makes timely objection, the court must order the action transferred to any ‘proper’ county requested by defendant.” (Cholakian & Assocs. v. Superior Ct. (2015) 236 Cal. App. 4th 361, 373; Cubic Corp. v. Superior Ct. (1986) 186 Cal. App. 3d 622, 625 [where an action is filed in an improper venue, “it must be transferred to the proper court in a proper county designated by the defendant”].)

Here, Tulare County is a proper venue because it is undisputed that the injury occurred there. Therefore, Defendants are entitled to a transfer to that venue.

Accordingly, Defendant’s Motion to Transfer Venue to Tulare County is GRANTED. 

IV. Attorney’s Fees

Code of Civil Procedure section 396b provides the Court with discretion to award attorneys’ fees to the prevailing party on a motion to transfer. It states, in relevant part: 

“In its discretion,¿the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known.¿As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except¿on notice contained in a party's papers, or on the court's own noticed motion, and after opportunity to be heard.” 

(Code Civ. Proc. § 396b(b).)

Defendant seeks reimbursement for its fees and costs incurred in making this motion. In support, Defendant’s counsel, Po S. Waghalter attests:

Defendant made every effort to avoid this Motion for Transfer of Venue. On June 21, July 2, and July 3, 2024, defense counsel advised plaintiffs’ counsel of the two pending lawsuits in Tulare County arising out of the same accident, with the request for stipulation to transfer. As the deadline to respond to plaintiffs’ Complaint was approaching, defense counsel requested plaintiffs’ counsel grant an extension of time to respond to the Complaint, in the event additional time was needed to consider. Plaintiffs’ counsel did not stipulate and did not respond to the request for extension of time. Plaintiffs’ counsel had no reasonable justification to refuse stipulation.

(Waghalter Decl. ¶ 22.) 

In opposition, Plaintiffs contend they should not be responsible for any fees or costs because they “have made a good faith showing that this case should stay in Los Angeles County and should not be transferred, as such a venue is convenient to the witnesses and would

not prejudice any party.” (Opp. 8: 8-11.) 

Here, Plaintiffs do not dispute that Defendants made a reasonable offer to stipulate to change the venue. Additionally, the only legally recognized basis for selecting Los Angeles was the residence of individual Defendant Pinkney, who resided in Beverly Hills for a period. However, it is clear that position was based solely on Pinkney’s address listed in the August 03, 2022 accident report—created almost two years before this action was filed.  

Be that as it may, the court cannot necessarily conclude that Plaintiffs lacked a good faith belief that Defendant Pinkney lived in Los Angeles County at the time the action was filed. Therefore, the court declines to award attorney’s fees and costs.

V. Transfer Fees

“If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expenses and attorney’s fees awarded to the defendant pursuant to Section 396b, shall be paid by the plaintiff before the transfer is made.” (CCP §399(a).)

Here, because Los Angeles County was not the proper venue, Plaintiffs are to bear the costs and fees of transferring the action. 

Moving party is ordered to give notice.

IT IS SO ORDERED.

Dated:   September 9, 2024 ___________________________________