Judge: Ronald F. Frank, Case: 23TRCV01216, Date: 2023-11-01 Tentative Ruling
Case Number: 23TRCV01216 Hearing Date: November 1, 2023 Dept: 8
TENTATIVE RULING
HEARING DATE: November 1, 2023¿¿
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CASE NUMBER: 23TRCV01216
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CASE NAME: F.R., Jr., through his Guardian Ad Litem, Destinee Harrison v. Sonesta International Hotels Corporation, et al.
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MOVING PARTY: Plaintiff, Frank Roldan Jr., a minor through his Guardian Ad Litem, Destinee Harrison; Frank Roldan, Sr.
RESPONDING PARTY: Specially Appearing Defendants, Sonesta International Hotels Corporation and Zachari Mateev
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TRIAL DATE: Not Set
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MOTION:¿ (1) Motion to Transfer¿
(2) CMC
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Tentative Ruling: (1) DENIED
(2) Set case for Non-Appearance Case Review re status of removed case for March 26, 2024, 8:30 a.m.
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I. BACKGROUND¿¿
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A. Factual¿¿
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On April 19, 2023, Plaintiff, Frank Roldan, Jr., an individual and minor, through his Guardian Ad Litem Destinee Harrison; Destinee Harrison, and Frank Roldan, Sr. filed a complaint against Defendants, Sonesta International Hotels Corporation, a Maryland Corporation, Zachari Mateev, an individual, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Negligence; (2) Premises Liability; (3) Negligent Hiring, Retention, Supervision; (4) Negligent Infliction of Emotional Distress – Direct Victim; (5) Negligent Infliction of Emotional Distress – Bystander; (6) Intentional Infliction of Emotional Distress; (7) Negligent Misrepresentation; (8) Intentional Misrepresentation; and (9) Concealment.
Plaintiff contends that this case was originally filed in this Court in Inglewood and was removed to federal court by Defendant Sonesta International via “snap removal” on June 20, 2023. On September 18, 2023, Plaintiffs filed a Notice of Related Case (“NORC”) claiming that this case was related to Case No. 23TRCV02271, which the Court will refer to as the “Torrance Case.” This Court never ruled on the NORC because the Court believed it was deprived of jurisdiction to do so because of the removal and pendency of this Inglewood lawsuit in federal court. On September 20, 2023, Plaintiffs brought an ex parte application to transfer related case which the Court denied without prejudice due to defective service on Defendants. On October 5, 2023, Plaintiffs filed this Motion to Transfer the Torrance Case to Inglewood. At the hearing on the Case Management Conference (set by the Clerk before the case was removed) on October 31, 2023, Plaintiffs’ counsel conceded that this lawsuit remains with the federal district court and is in the discovery phase. However, Plaintiff contends that a second lawsuit, the Torrance Case, brought by the same plaintiffs, is pending in Department B in Torrance before Judge Tanaka.
B. Procedural¿¿
On October 5, 2023, Plaintiffs filed a Motion to Transfer Related Case. On October 19, 2023, Defendants filed an opposition. On October 25, 2023, Plaintiffs filed a reply brief.
II. ANALYSIS¿
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A court may, on motion, transfer an action if (a) the action was filed in the improper court; (b)¿an impartial trial cannot be held therein; (c) for the convenience of witnesses and to promote justice; (d) where no judge therein is qualified to act; or (e) where a dissolution of marriage action has been filed in the county in which the defendant has resided for three months. (Code of Civ. Proc. § 397(a)-(d).) If a court orders a transfer based on §§397(b)-(d), that court must transfer the action to a court with subject matter jurisdiction upon the written agreement of the parties. (Code of Civ. Proc. § 398.) The prevailing party shall recover the “costs and fees of the transfer, and of filing the papers…” for an action brought under CCP §§ 397(b)-(e). (Code of Civ. Proc. § 399(a).) A court may, on motion, transfer an action to another court to coordinate actions involving a common question of fact or law. (Code of Civ. Proc. § 403.)
An improper court may nonetheless adjudicate an action if it has subject matter jurisdiction unless the defendant objects. (Code of Civ. Proc. § 396b(a).) Even where the defendant objects, the court may retain the action “if it appears that the convenience of the witnesses or the ends of justice will thereby be promoted.” (Code of Civ. Proc. § 396b(d).)
The court may in its discretion award reasonable expenses and attorney fees in making a motion to transfer pursuant to Code of Civil Procedure § 396b(b). Such award is payable by the losing party’s attorney, not the party, and the court shall consider (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 for the party making the motion or selecting the venue knew or should have known.
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Plaintiff suggests that the cases at issue in this motion are related such that transfer will promote the ends of justice consistent with the standards specified. Next, Plaintiff argues that these cases are not “complex” cases under the Judicial Council’s definition. Plaintiff also suggests that the allegedly related actions involve Defendants failing to clean a hotel room after a drug overdose, which led to a child ingesting leftover drugs. Plaintiff asserts that the cases do not involve a large number of separately represented parties and are not likely to involve a large number of witnesses or documentary evidence and should properly be deemed non-complex for the purposes of transfer.
In opposition, Specially Defendants Sonesta International Hotels and Zachari Mateev argue that this Court does not have jurisdiction because after Defendant removed the action formerly before this Court to federal court, the federal court on August 18, 2023 issued an order denying Plaintiffs motion to be remanded. However, Defendants contend that Plaintiff is still bringing this motion before the very court which was divested of jurisdiction in an attempt to transfer an entirely different case with different parties to the same. Defendants cite: “[a]lthough state and federal courts may have concurrent jurisdiction to initially consider a case, the state court loses jurisdiction upon proper removal of the case to federal court.” (Lou v. Belzberg (9th Cir. 1987) 834 F.2d 730, 740.) Further, Defendants cite that removal divests the state court of jurisdiction and “the State court shall proceed no further unless and until the case is remanded.” (28 U.S.C. § 1446(d).) Here, Defendant argues the case was properly removed, and the federal court denied Plaintiff’s Motion to Remand.
The Court has reviewed the federal district court order of August 18, 2023, and takes judicial notice of the same. That order indicates that on the motion to remand, Plaintiffs argued that it was Defendant Sonesta that was guilty of gamesmanship by engaging in a “snap” removal, a colloquial expression used to describe a removal field by a diverse defendant who was served before a non-diverse defendant was properly served with the suit papers.
Plaintiff’s reply brief fails to respond to the citation in Defendants’ opposition, but it does argue entitlement to have this Court hear a motion to transfer without addressing the NORC.
The Court’s tentative ruling is to DENY this motion for several reasons: (1) This Court cannot grant the NORC because Rule of Court 3.300(a)(4) only empowers a discretionary relating of two or more cases where cases are likely to require substantial duplication of judicial resources if heard by different judges, and where the Court deciding the NORC has jurisdiction to hear both of the allegedly related cases. This Court lacks jurisdiction to hear the earlier-filed and lower-numbered Inglewood case because it was removed to federal court and the federal district judge denied Plaintiffs’ motion to remand. (2) Defendant Sonesta International Hotels is a party to the removed Inglewood case but is not a party to the Torrance Case, and the plaintiffs are different in the two cases. (3) Plaintiffs appear to the Court to be engaged in forum shopping, even though Judge Tanaka is a highly respected and outstanding jurist who has more seniority on the bench than Judge Frank in Inglewood. It would not serve the interests of justice to encourage counsel to use the NORC and transfer motion procedures to forum shop after an earlier-filed case is removed, and a later-filed allegedly related case (where Plaintiffs do not name a defendant with diversity of citizenship) is assigned to a different state-court judge. (4) Until and unless Congress amends the removal statute, a snap removal remains a viable procedural step for an out-of-state defendant to elect a federal forum for hearing a state-court claim. Plaintiffs can prevent a snap removal by naming and serving a non-diverse defendant before serving a diverse defendant, thereby defeating diversity jurisdiction of the federal courts, or by stipulating to damages of less than or equal to $75,000. (5) If Plaintiffs believed they could not have a fair trial before Judge Tanaka, they could have timely filed a Section 170.6 challenge to the assignment of the Torrance case to Judge Tanaka.