Judge Serena R. Murillo, Case 23STCV02161 2023-05-23 Tentative Ruling

Judge: Serena R. Murillo, Case: 23STCV02161, Date: 2023-05-23 Tentative Ruling

Case Number: 23STCV02161 Hearing Date: May 23, 2023 Dept: 31

TENTATIVE

Defendant’s Motion for an Order to Transfer Venue to the Superior Court of Kern County and Request for monetary sanctions is DENIED.

Pursuant to Code of Civil Procedure section 396 subdivision (a), on its own motion the Court deems the venue to be proper in San Luis Obispo County and order that the case be transferred.

Background

On February 91, 2023, Plaintiff Prince Mayers filed a Complaint against Defendant Pearce Renewables, LLC and Does 1 to 25 for:

1) DISABILITY DISCRIMINATION IN VIOLATION OF FEHA – GOVERNMENT CODE § 12940, ET SEQ;

2) FAILURE TO REASONABLY ACCOMMODATE A DISABILITY IN VIOLATION OF FEHA – GOVERNMENT CODE § 12940, ET SEQ;

3) FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF FEHA – GOVERNMENT CODE § 12940, ET SEQ;

4) RETALIATION IN VIOLATION OF FEHA – GOVERNMENT CODE § 12940, ET SEQ;

5) FAILURE TO PREVENT DISCRIMINATION AND RETALIATION IN VIOLATION OF FEHA – GOVERNMENT CODE § 12940, ET SEQ;

6) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY; and

7) DECLARATORY AND INJUNCTIVE RELIEF PURSUANT TO CODE OF CIVIL PROCEDURE § 1060; GOVERNMENT CODE §§ 12920 and 12920.5, ET SEQ.

On March 27, 2923, Defendant filed this instant motion to transfer venue.

Plaintiff filed opposing papers on May 10, 2023.

Defendant filed a rely on May 16, 2023.

Legal Standard

Code of Civil Procedure section 395, subdivision (a), provides in part “[e]xcept as otherwise provided by law…the superior court in 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.”

In addition, for transfer of an action, section 396 states:

“If it appears from the complaint or affidavit, or otherwise, that the superior court or court location where the action or proceeding is commenced is not the proper court or court location for the trial, the court where the action or proceeding is commenced, or a judge thereof, shall, whenever that fact appears, transfer it to the proper court or court location, on its own motion, or on motion of the defendant, unless the defendant consents in writing, or in open court (consent in open court being entered in the minutes of the court), to the keeping of the action or proceeding in the court or court location where commenced.”

(Code Civ. Proc., § 396 subd. (a).)

Subdivision (b) of section 396 provides that upon motion, the Court shall transfer the action if it appears that the action was not commenced in the proper court. (See also Code Civ. Proc., § 397 [stating that the court may, on motion, change the place of trial when the court designated in the complaint is not the proper court].) The burden is on the moving party to establish that the venue selected by Plaintiff is improper. And, the moving party has the burden of “negating the propriety of venue as laid on all possible grounds.” (Karson Industries, Inc. v. Sup. Ct. (1969) 273 Cal.App.2d 7, 8-9.)

Discussion

Defendant’s Motion to Change Venue to Kern County

Plaintiff alleges that he filed this action in Los Angeles County because Defendant Pearce Renewables conducts business in Los Angeles. Moreover, Plaintiff asserts that he was terminated from his employment while on medical leave in Lancaster, California.

Defendant argues that venue in Los Angeles, County is improper because no part of Plaintiff’s employment relationship with Defendant that is the subject matter of the Complaint took place in Los Angeles County. Instead, Defendant argues that the venue is proper in Kern County, where Defendant was located throughout Plaintiff’s employment. Defendant argues that Plaintiff was hired by Worldwind Services, LLC (“WWS”) on September 18, 2018, which provides wind and solar technicians and laborers to contracting worksites from its management hub in Tehachapi, California, located in Kern County. In January 2022, WWS merged with Defendant Pearce Renewables, LLC (“Pearce”).

Plaintiff alleges that Defendant failed to note that Pearce’s principal place of business is in San Luis Obispo County. (Opp. Ex. A.) Plaintiff also notes that Defendant Pearce’s present status with the California Secretary of State is terminated as of February 4, 2022, yet Pearce’s website continues to list open positions throughout California. (Opp. Ex. B.) Secondly, Plaintiff presents evidence that WWS headquarters and the principal address listed with the California Secretary of State is the same as Defendant Pearce’s address which is located in San Luis Obispo County. (Opp. Ex. C.) Third, Plaintiff argues that in its meet and confer communications with Defendant Pearce, Plaintiff agreed to transfer the venue to San Luis Obispo County.

In California, “venue may be proper in more than one county, depending on the particular facts of a case.” (Battaglia Enterprises, Inc. v. Superior Court (2013) 215 Cal.App.4th 309, 313.) “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. [Citations.] There is a presumption that the county in which the plaintiff chose to file the action is the proper county. [Citations.] The burden rests on the party seeking a change of venue to defeat the plaintiff's presumptively correct choice of court.” (Id. at 314.)

Here, Defendant bears the burden of showing that venue in Los Angeles, County or San Luis Obispo, County is not proper under any applicable statute. (See Crestwood Behavioral Health, Inc. v. Superior Court of Alameda County (2021) 60 Cal.App.5th 1069, 1075 (“Crestwood”).)

Morever, in FEHA cases, the venue provision in Government Code section 12965, subdivision (c)(3), prevails over other venue provisions:

“The Legislature clearly intended the FEHA venue provisions to apply not only to FEHA actions, but also to related claims pled under alternative theories but based on the same set of facts. To hold otherwise would dilute the efficacy of the injured employee's remedy by gutting the FEHA's special venue provisions. The important civil rights which the act codifies would in turn be rendered meaningless.”

(Brown v. Superior Court (1984) 37 Cal.3d 477, 487; see Malloy v. Superior Court (2022) 83 Cal.App.5th 543, 553 (“Mallory”) [confirming that section 12965, subdivision (c)(3) venue provision applies to the entire case in which a FEHA cause of action is asserted].)

Government Code section 12965, subdivision (c)(3), states in part:

“An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.”

“‘Venue is determined based on the complaint on file at the time the motion to change venue is made.’” (Mallory, supra, 83 Cal.App.5th at 553.) Here, Plaintiff’s Complaint alleges that Plaintiff is a resident of the County of Los Angles and that Defendant Pearce conducts business in the County of Los Angeles. (Compl. ¶¶ 1, 2.) Plaintiff was assigned by Pearce to work on a project located in North Carolina. (Compl. ¶ 8.) Plaintiff’s work injury and Defendant’s alleged cause for terminating Plaintiff stemmed from facts that occurred in North Carolina. (Compl. ¶¶ 19-32.) Plaintiff returned to California on November 12, 2021, and was on “approved medical leave” until he was terminated on April 25, 2022. (Compl. ¶¶ 32, 33-41.)

Plaintiff argues that the discrimination he suffered, including the failure to accommodate Plaintiff’s disability, the failure to engage in a good faith interactive process, retaliation, failure to prevent discrimination and retaliation, and wrongful termination all occurred in Los Angeles, County while he was on medical leave and therefore venue is proper is Los Angeles County. Defendant disagrees and states that any alleged unlawful practices committed by WWS/Pearce personnel occurred in its Tehachapi offices, in Kern County.

“[T]he FEHA venue statute is not so expansive as to allow a plaintiff who receives a 'you're

Fired' email while vacationing at Lake Tahoe to file a lawsuit in Placer County regardless of

the location of the employer's offices or where he or she actually worked.” (Mallory, supra, 83 Cal.App.5th at 554.) Therefore, the Court agrees that the fact Plaintiff was on medical leave in Los Angles, County when he was terminated is insufficient to show that the unlawful employment practices occurred in Los Angeles County.

Nevertheless, Defendant has the burden of negativing all possible bases of venue articulated in Government Code section 12965 subdivision (c)(3), including that venue is improper in San Luis Obispo County. The fact that WWS, still has offices in Tehachapi, CA does not qualify Kern County as the county where Defendant Pearce’s principal office is located. Moreover, Defendant fails to rebut Plaintiff’s evidence that WWS principal address is in San Luis Obispo County. (Opp. Ex. C.)

Therefore, Defendant’s request to transfer venue to Kern County is DENIED.

The Court, on its own motion, deems the venue to be proper in San Luis Obispo County and Orders that the case be transferred. (See Code Civ. Proc., § 396 subd. (a).)

Request for Attorney’s Fees

Code of Civil Procedure section 396b, subdivision (b) states:

“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.”

The Court declines to grant Defendant’s request forfees and costs in the amount of $7,221.96 for bringing this motion as it is not the prevailing party and Defendant failed to articulate why a stipulation to change the venue to San Luis Obispo was rejected.

CONCLUSION

Defendant’s Motion for an Order to Transfer Venue to the Superior Court of Kern County and Request for monetary sanctions is DENIED.

Pursuant to Code of Civil Procedure section 396 subdivision (a), on its own motion the Court deems the venue to be proper in San Luis Obispo County and order that the case be transferred.