Judge: Stephen Morgan, Case: 22AVCV00445, Date: 2023-02-28 Tentative Ruling

Case Number: 22AVCV00445    Hearing Date: February 28, 2023    Dept: A14

Background

This is a personal injury action arising from a motor vehicle incident. Plaintiffs Miguel Silva (“Silva”) and Regina Garcia (“Garcia” and collectively “Plaintiffs”) allege that on October 25, 2020 at Highway 138 east bound and Oasis Road in the City of Palmdale, Defendant Salvatore Russo (“Defendant”) breached his duty to safely operate, maintain, supervise, and repair his vehicle at a public place and, as a result, Plaintiffs suffered damage.

On April 15, 2021, Plaintiffs filed their Complaint alleging two causes of action for: (1) Motor Vehicle and (2) General Negligence.

On January 05, 2023, Plaintiffs filed their FAC, alleging the same causes of action. The FAC differed from the Complaint in one aspect: location. While the Complaint stated the accident occurred in Palmdale, the FAC states that it occurred in Pinon Hills, CA 92372.

On January 09, 2023, Plaintiffs filed this Motion to Transfer Venue from Lancaster to San Bernardino.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for February 28, 2023. An Opposition was due by February 14, 2023. “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by [Cal. Code Civ. Proc. § 1005].” (Cal. Code Civ. Proc. § 1005(b). Should an Opposition be filed, it is now untimely.

-----

Analysis

Standard for Change of Venue – On motion of any party, a judge may change the place of trial in an action or proceeding to promote the convenience of witnesses and the ends of justice. (Cal. Code Civ. Proc. § 397(c).)  The moving party has the burden of establishing these grounds for the transfer, because the plaintiff's choice of venue is presumptively correct.  (Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401.) 

-----

Discussion

Application – Plaintiffs move to change venue as (1) the underlying incident occurred in San Bernardino County, (2) the Plaintiffs live in San Bernardino County, and (3) it is believed that Defendant resides in San Bernardino as well. (See both Notice and Motion.)

This motion is unopposed.

Cal. Code Civ. Proc. § 397, unlike Cal. Code Civ. Proc. § 396b, allows the Court to retain some discretion over whether to order a transfer.

Pursuant to Cal. Code Civ. Proc. § 395, “except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, 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. If 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.” (Cal. Code Civ. Proc. § 395(a).)

The exhibits presented are the Complaint and FAC. Though Plaintiffs present that both parties are from San Bernardino, there is no evidence supporting such a contention. The FAC, however, does change the place of injury to Pinon Hills. The Court takes judicial notice, under Cal. Evid. Code § 451(f) [“Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.”] and Cal. Evid. Code § 452(h) [“Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”], that Pinon Hills is in San Bernardino County. (See also San Bernardino Countywide Plan Phelan/Pinon Hills page < https://countywideplan.com/community/north-desert-unincorporated/phelan-pinon-hills/> [as of Feb. 02, 2023].)

Persuasive authority holds that an action for a tort is not local, but transitory and can be maintained wherever the wrongdoer can be found. (Denver & R. G. R. Co. v. Roller (9th Cir. 1900) 100 F. 738, 744.) However, binding authority provides that an uncontradicted motion for change of venue to a plaintiff’s residence where injury did not occur was not an error based on the gravamen, or essential facts, or grievance as alleged, to be ascertained from a consideration of the pleadings as a whole. (Williamson v. Pacific Greyhound Lines (1944) 67 Cal.App.2d 250 [“Williamson”].) 

Here, as in Williamson, Plaintiffs contentions, including their belief that Defendant resides in San Bernardino County, are not disputed by Defendant. Further, from the FAC, the incident occurred in San Bernardino County. Statute provides that a personal injury action is to be filed in the county where the incident occurs or where some defendants reside. (See (Cal. Code Civ. Proc. § 395(a).)

Accordingly, the motion is GRANTED.

-----

Conclusion