Judge: Sandy N. Leal, Case: 2022-01294766, Date: 2023-08-24 Tentative Ruling

Motion for Change of Venue (Transfer)

The Motion for Change of Venue brought by Defendant Glasswerks LA, Inc. is GRANTED, pursuant to Code of Civil Procedure section 396b, subdivision (a) and Code of Civil Procedure section 397, subdivision (a).   This action shall be transferred to Los Angeles County.

Initially, while Plaintiff asserts the instant motion was untimely filed, this argument fails:  The Motion for Change of Venue is Defendant’s first appearance in this action and was filed prior to an answer.   Additionally, Counsel for Plaintiff concedes he granted an extension to answer, pursuant to California Rules of Court, rule 3.110(d). (¶2-¶3 of Nicholson Declaration.)  While Plaintiff’s Counsel asserts the extension permitted only an answer, Code of Civil Procedure section 396b, subdivision (a) permits a motion to change venue “within the time otherwise allowed to respond to the complaint…” (Code of Civ. Proc., §396b, subd. (a).)    Given the motion was filed as Defendant’s first appearance and within the time stipulated by the parties for Defendant to answer, the motion is timely.

Thereafter, “[t]he proper place for trial is fixed by statutory scheme.” (Battaglia Enterprises, Inc. v. Superior Court (2013) 215 Cal.App.4th 309, 313.)  “The defendant in this action is a corporation, and, as a result, Code of Civil Procedure section 395.5 applies and supplies multiple possible venue options.” (Ibid.)  Pursuant to this provision, “[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.” (Code Civ. Proc., §395.5.)

“Generally, when venue is proper in more than one county, a plaintiff has the choice of where to file the action from among the available options.” (Battaglia Enterprises, Inc. v. Superior Court (2013) 215 Cal.App.4th 309, 313.)  Where an enforceable venue selection clause exists, however, the agreement governs. (Id. at 318.)  “[A] venue selection clause is void only insofar as it ‘disrupts statutory venue provisions.’” (Id. at 317.)  “[W]here…two sophisticated parties agree, pursuant to arm’s length negotiations, to litigate an action in one of the multiple statutorily permissible venues, they should be held to their agreement.” (Id. at 318.)

Here, as noted by Defendant, the Complaint concedes that Defendant is “doing business in the County of Los Angeles.” (¶2 of Complaint.)  Defendant, additionally, attaches a Statement of Information for Glasswerks LA, Inc., which lists a Los Angeles County address as its principal address. (¶4 of Kutzner Declaration and Exhibit 2 thereto.)  Plaintiff does not appear to dispute this portion of the motion and, based on the same, Los Angeles is an appropriate venue pursuant to Code of Civil Procedure section 395.5.

In addition to the above, Defendant offered the Declaration of Mike Torres, the Chief Financial Officer of Glasswerks LA, Inc. (¶1 of Torres Declaration.)  Mr. Torres confirms that Defendant’s primary place of business is 8600 Rheem Avenue, South Gate, CA 90280. (Ibid.)  Additionally, Mr. Torres attaches a “Glasswerks Credit Application Form” executed on April 19, 2021 by Skip McDonald, as Vice President of Window Crafters, Inc. (¶2 of Torres Declaration and Exhibit 1 thereto.)

The Credit Application Form indicates Plaintiff agreed to be bound by Terms and Conditions, included within the Credit Form itself and available for download.  (¶2 of Torres Declaration and Exhibit 1 thereto.)  The Terms and Conditions included within the Credit Application state: “Any suit, whether arising from contract, tort, or otherwise, must be brough in the Los Angeles Superior Court, Central District, or in the Federal District Court in Los Angeles.” (Ibid. at §12 of Exhibit 1.)  Further, Mr. Torres attached the Terms and Conditions “that was available on Glasswerks’ website…on April 19, 2021.” (¶3 of Torres Declaration and Exhibit 2 thereto.)  Mr. Torres indicates “[t]hese same Standard Terms and Conditions are still available at the same link above.” (Ibid.)  The attached Terms and Conditions likewise require venue in Los Angeles County. (Ibid.)

To dispute the above venue-selection clause, Plaintiff offers a Declaration from Skip McDonald, who indicates he “signed a 2-page Glasswerks Credit Application Form…” (¶2 of McDonald Declaration.)  Thereafter, Mr. McDonald states that he has “no recollection of being provided with any Standard Terms and Conditions document pertaining to this credit application.” (¶3 of McDonald Declaration.)  While Plaintiff concedes having executed the Credit Application Form, Plaintiff asserts the Terms and Conditions attached within Exhibit 1 were not included in the copy provided. This statement contradicts the Declaration of Mr. Torres, who declares the Credit Application Form attached as Exhibit 1 is a true and correct copy of the form “submitted and signed” by Window Crafters, Inc. (¶2 of Torres Declaration.)  Additionally, this testimony does not address or explain Plaintiff’s failure to inquire into the missing pages, given each page of the Credit Application Form identifies the total amount of pages as being four.   (¶2 of Torres Declaration and Exhibit 1 thereto.) 

Regardless, however, it is clear the Credit Application Form incorporated Terms and Conditions which require venue in Los Angeles: “A contract may validly include the provisions of a document not physically a part of the basic contract….’It is, of course, the law that the parties may incorporate by reference into their contract the terms of some other document.” (Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 54.)  “For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.’” (Ibid.)  “The contract need not recite that it ’incorporates’ another document, so long as it ‘guide[s] the reader to the incorporated document.’” (Ibid.)

Here, within the 2-pages that Plaintiff concedes having received and executed, the Credit Application Form indicates the parties are agreeing to “be bound by the terms and conditions set forth in this application and in the Standard Terms and Conditions (‘Conditions’) attached hereto, all of which are incorporated by reference herein.” (¶2 of Torres Declaration and Exhibit 1 thereto.)  Additionally, the Form provides that “[t]he Conditions can also be downloaded at http://glasswerks.com/terms-and-conditions/ by selecting ‘Click here to download our Terms and Conditions in a PDF format.’” (Id.)   Similarly, within the 2-pages conceded by Plaintiff, is the statement that Plaintiff agreed “to otherwise be bound by the terms and conditions in this application and the Conditions attachment hereto and on Glasswerks website.” (Id.)  This last statement is included within the paragraph which immediately precedes the signature of Skip McDonald.

Based on the above, regardless of whether the Terms and Conditions were attached to the Credit Application Form, Plaintiff agreed to be bound by the Terms and Conditions then available on Defendant’s website.  Per the Declaration of Mr. Torres, the Terms and Conditions available at the relevant time provide: “The jurisdiction and venue for any civil action shall be solely and exclusively, the state courts in and for the County of Los Angeles, State of California….” (¶3 of Torres Declaration and Exhibit 2 thereto.)

“All that is required is that the incorporation be clear and unequivocal and that the plaintiff can easily locate the incorporated document.” (Wolschlager v. Fidelity National Title Ins. Co. (2003) 111 Cal.App.4th 784, 791.)  Additionally, “one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.” (Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 93.)

While Plaintiff asserts the “Credit Application is not the contract upon which this case is based” (Supplemental Opposition: 4:14-15), this argument fails.  Per the Credit Application Form, the identified Terms and Conditions “shall govern each and every purchase by applicant, from any of the companies referred to as ‘Glasswerks’…” (¶2 of Torres Declaration and Exhibit 1 thereto.)

Additionally, to the extent Plaintiff is asserting the Terms and Conditions are not a contract themselves, “[d]ocuments which are not contracts may be incorporated into a contract…” (Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 55.) Likewise, to the extent Plaintiff is asserting the Credit Application Form was not recognizable as a contract, this argument fails: The agreement clearly identifies terms and indicates that a signature is a consent thereto.

Finally, in disputing the venue selection clause herein, Plaintiff suggests the incorporation of Terms and Conditions is akin to a “click-wrap” agreement and, citing only Hines v. Overstock.com, Inc. (E.D.N.Y. 2009) 668 F.Supp.2d 362, asserts the same fails “[w]ithout an overt acknowledgement or acceptance of such terms….” (Supplemental Opposition: 5:11-19.)

Initially, the cited authority is not binding and, moreover, as it appears to enforce New York and Utah law, is not persuasive.  Additionally, regardless, the evidence demonstrates Plaintiff overtly acknowledged and accepted the Terms and Conditions, by executing the Credit Application Form and agreeing to be bound by the same. (¶2 of Torres Declaration and Exhibit 1 thereto.)  “In the world of paper contracting, the outward manifestation of assent to the same thing by both parties is often readily established by the offeree’s receipt of the physical contract.” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 461.) “[T]he general rule is that a person is bound by the printed contractual provisions of an instrument which he accepts delivery of if, as an ordinarily prudent [person], he could and should have read such provisions.’” (Ibid.)

Based on all of the above, the Court finds the parties agreed to venue in Los Angeles County and, given Los Angeles County is a statutorily acceptable venue for this action, the Motion to Change Venue is granted.

Plaintiff’s request for an order pursuant to Code of Civil Procedure section 396b, subdivision (b), is DENIED. Pursuant to Code of Civil Procedure section 396b, subdivision (b), “[i]n 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.”  (Code of Civ. Proc., §396b, subd. (b).)  Based on the above ruling, Plaintiff is not the prevailing party under this provision.  Additionally, as Defendant did not request attorneys’ fees and costs, no order pursuant to Code of Civil Procedure section 396b, subdivision (b), is appropriate.

Lastly, Plaintiff’s Request for Judicial Notice, included within the Supplemental Opposition, is DENIED. In addition to improperly inserting this request within a brief (Cal. Rules of Court, rule 3.1113(l)), the identified fact is irrelevant to this ruling.  (Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1474, fn. 5.)