Judge: Steven A. Ellis, Case: 22STCV25517, Date: 2023-08-04 Tentative Ruling

Case Number: 22STCV25517    Hearing Date: January 2, 2024    Dept: 29

TENTATIVE

The motion to change venue filed by Defendant Bell Canyon Association, Inc. is DENIED.

Background 

On August 8, 2022, Plaintiffs David Scott Travis (“Travis”) and Kathy Garver Travis (collectively, “Plaintiffs”) filed the Complaint in this action, and on December 12, 2022, Plaintiffs filed their First Amended Complaint (“FAC”).  In the FAC, plaintiffs assert claims  against Defendants Bell Canyon Association, Inc. (erroneously sued as Bell Canyon Association), Mohammad Moghaddam Hallaj (erroneously sued as Mohammad M. Serand), Maryam T. Nezhad, and Does 1 through 100, inclusive, for (1) negligence, (2) premises liability, and (3) loss of consortium.

The FAC alleges the following. Defendants failed to own, lease, operate, maintain, design, build, manage and/or otherwise control the property located at 46 Saddlebow Road, Bell Canyon, California, 91307, including the exposed drop-off with no fencing or signage (the “Premises”), in a safe condition. On November 29, 2021, when Travis drove onto the Premises (which had no clear delineation or barriers) to take in the view, his wheels got stuck and he was unable to reverse; so he stepped out of his vehicle, and in doing so, the land subsided and he fell down on the exposed drop-off, and down the cliff into the ravine. Travis suffered severe bodily harm as a result.

On June 9, 2023, Defendant Bell Canyon Association, Inc. (“Defendant”) filed its Answer to the FAC.  On October 16, 2023, Defendants Hallaj and Nezhad filed their Answer to the FAC and a Cross-Complaint for trespass against Travis and Roes 1 through 20.

On June 20, 2023, Defendant filed the instant motion, seeking an order changing venue from this Court to Ventura County Superior Court.  Plaintiffs opposed the motion on October 10, and on October 16 Defendant filed its reply.

Legal Standard

Code of Civil Procedure section 397 provides:

“The court may, on motion, change the place of trial in the following cases:

(a)     When the court designated in the complaint is not the proper court.

(b)        When there is reason to believe that an impartial trial cannot be had therein.

(c)         When the convenience of witnesses and the ends of justice would be promoted by the change.

(d)        When from any cause there is no judge of the court qualified to act.

(e)        When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of the commencement of the proceeding is a resident of another county in this state, to the county of the respondent’s residence when the ends of justice would be promoted by the change.”

(Code Civ. Proc., § 397 [emphasis added].)

“If a court orders the transfer of an action or proceeding for a cause specified in subdivision[] … (c) … of Section 397 [i.e., convenience of the witnesses and ends of justice], the action or proceeding shall be transferred to a court having jurisdiction of the subject matter of the action upon agreement of the parties by stipulation in writing, or in open court and entered in the minutes or docket.” (Code Civ. Proc., § 398.) “If the parties do not so agree, the action or proceeding shall be transferred to the nearest or most accessible court where the like objection or cause for making the order does not exist.” (Ibid.)

“[T]he granting or denying of [a motion to change venue] is discretionary with the trial court and is subject to reversal only on a clear showing of an abuse of this discretion.” (Harden v. Skinner and Hammond (1955) 130 Cal.App.2d 750, 754.)

However, “before such a motion can be granted there must be some showing of … convenience of witnesses ….” (Harden, supra, 130 Cal.App.2d at p. 754.) For example, in Harden, the Court of Appeal found that there was a sufficient showing of convenience of witnesses because, according to respondent’s affidavit, all of the 90 client-witnesses lived in the proposed venue, Santa Clara County. (Ibid.) The appellate court explained that although “the ‘“mere numerical majority of the witnesses on one side or the other does not necessarily determine the merits of the motion”’, [citation], … it is equally clear that a court cannot be said to have abused its discretion if it permits the trial to be had as near as possible to the residences of the greatest number of witnesses.” (Ibid.)

A movant must also show “that the witnesses involved will testify as to relevant and material facts.” (Harden, supra, 130 Cal.App.2d at p. 754.) In Harden, the Court of Appeal looked at the pleadings and affidavits filed in support of a motion to transfer venue to analyze whether the evidence to be produced by the witnesses will be relevant, material, and admissible. (Id. at p. 755.)

Finally, a movant must show that “ends of justice” will be served by the change. “Direct evidence” of that showing is not required. (Harden, supra, 130 Cal.App.2d at p. 755.) “The trial court may rely … on the direct facts set forth in the affidavits, … [and] on any reasonable and relevant inference arising therefrom.” (Ibid.) For example, in Harden, “[t]here [were] several logical and valid inferences arising from the averments in the affidavits to support the trial court’s conclusion that the ends of justice [would] be better served by moving the trial closer to the witnesses.” (Ibid.) “[T]he witnesses will be accessible for immediate recall if further testimony from them is desired, thus preventing delays. [In addition] [t]he proximity of the San Jose office to the place of trial presumably ma[de] more expeditious the production of records. The obvious savings in the witnesses' time and expense in traveling to and from the place of trial also promote[d] the ends of justice.” (Ibid.)

Request for Judicial Notice

Defendant asks the Court to take judicial notice of the following.

a.       Allegations in the FAC.

b.      The fact that 46 Saddlebow Road, Bell Canyon, CA 91307 (where the incident alleged in the FAC occurred) is in Ventura County

c.       The fact that Camarillo, Moorpark, Thousand Oaks, and Ventura are in Ventura County

(Request for Judicial Notice, filed June 20, 2023, pp. 1:28-2:9.)

The request is GRANTED. (Evidence Code section 452, subds. (d) and (h) [stating a court may take judicial notice of court records and “[f]acts 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,” respectively].)

Discussion

Defendant moves for an order changing the venue from Los Angeles Superior Court to the Ventura Superior Court, arguing that the convenience of witnesses and the ends of justice would be promoted by the change. (Code Civ. Proc., § 397, subd. (c).)  “The burden rests upon one who seeks a change of venue … to prove that both the convenience of witnesses and ends of justice will be promoted thereby, and this [the moving party] must do through affidavits that contain more than generalities and conclusions.”  (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919; see also Peiser v. Mettler (1958) 50 Cal.2d 594, 607; 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial [The Rutter Group 2023], ¶ 3:576.1 [“The declarations must contain admissible evidence.  A change of venue cannot be made based on declarations consisting of hearsay and conclusions.”].)

Defendant bases its motion primarily on news reports regarding the incident. According to the news article dated November 29, 2021, Defendant argues, “authorities deployed a Ventura County helicopter to assist with rescuing a man [i.e, Travis] in Bell Canyon. Emergency personnel transported the man to the Los Robles Regional Medical Center in Thousand Oaks.” (Motion, p. 4:12-15; declaration of James P. Hart, Jr. (“Hart Decl.”), ¶ 9; Exhibit B – a copy of the news article.) “The article links the Twitter account or tweet from the Ventura County Fire Department, Public Information Officer who commended multi-agency cooperation in the operation. [Hart Decl., ¶ 10; Exhibit C attached thereto.) The Public Information Officer applauded the Ventura County Air Unit, Ventura County Fire Department, Los Angeles Fire Department, and California Highway Patrol, Moorpark.” (Motion, p. 4:12-13.) A description of the incident is also found in a report from Bell Canyon Volunteer Wild Fire Incident Report, where the following officials are named: Search and Rescue Coordinator Scott Sand, Assistant Chief Boris Donia, Lt. Chris Shubeck, Capt. Larry Little, Chief Garret Clancy, Assistant Chief Wolf, FF Shalev, FF Goldney, FF Sukay, FF Levy, Reserve FF Becker, and others. (Motion, p. 4:22-27; Exh. G.)

Defendant argues that those news sources “advise there are numerous non-party witnesses who work in Ventura County who likely will be called upon to give testimony at trial.” (Motion, p. 5:1-3.) “All [those witnesses] are relevant to this case because they were eyewitnesses at the scene of the incident. They can testify as to plaintiff’s injuries and medical treatment, statements made at the time, location of plaintiff’s vehicle, etc. In all total, the number of witnesses expected to be called to trial from Ventura County greatly exceed those who may be called from Los Angeles County. Critically, the Ventura County based witnesses will give testimony that goes to the heart of the case.” (Motion, p. 5:2-7.)

In opposition, Plaintiffs argue (among other things) that Defendant has not met its burden of establishing through competent evidence that "the convenience of witnesses and the ends of justice would be promoted by the change" of venue to Ventura County. (Opposition, p. 2:2-5.) Specifically, Defendant “has not submitted any declarations/affidavits or any other evidence identifying the witnesses expected to testify, explaining the substance of their expected testimony, or explaining why and how such witnesses would be inconvenienced by having to appear in Los Angeles County, as required by California law.” (Opposition, p. 3:3-7.) Plaintiffs point out that although Defendant lists every first responder who responded to the incident, including Search and Rescue Coordinator Scott Sand, Defendant does not show that (1) all those individuals in fact reside in Ventura County and (2) they will be witnesses in this case. (Opposition, p. 6:5-11.) “Just because these individuals are listed ‘in a report from Bell Canyon Volunteer Wild Fire Incident Report (B.C.V.W.F.D.) dated Nov. 29, 2021’ does not necessarily mean every one of these individuals will be deposed or identified as witnesses at trial.” (Opposition, p. 6:11-13.)  Plaintiffs also note that seven of Travis’s medical provider witnesses (listed by name) are all located in Los Angeles County.  (Stepanyan Decl., ¶ 7.)

In response to Plaintiffs’ argument that it has not submitted competent evidence showing convenience of witnesses and ends of justice would be promoted by change of venue, Defendant argues that the issue “is cured in the Motion by (1) the Request to Take Judicial Notice of certain allegations in the First Amended Complaint (FAC) and geographic facts, and (2) by the allegations in the FAC.” (Reply, p. 3:2-4.)

The Court has carefully considered the evidence and argument presented by each side and concludes that Defendant has not met its burden of showing that the convenience of witnesses and the ends of justice would be promoted by the requested change of venue.  Defendant has provided evidence that at least some potential witnesses – mostly the first responders – are employed by agencies in Ventura County, and it appears that the Court can draw the inference from this evidence that they likely also to reside in Ventura County, with a court in Ventura County likely to be more convenient than a court in Los Angeles County.  Perhaps the Court can also draw the inference that at least some (although probably not all) of these witnesses are likely to testify at trial, but the Court notes that the primary focus at trial is more likely to be the accident itself, and Plaintiffs’ injuries, rather than the first responders’ rescue efforts.  At the very least, Defendant has not presented evidence to support an argument that all of these rescuers will in fact be called as witnesses at trial.  Nor has Defendant presented evidence regarding where in Ventura County they live: if the responders live in East Ventura County, for example, a trial in a courthouse in Los Angeles County (possibly close to the County line, although of course there is no guarantee at this time regarding where trial will be held) would not necessarily be substantially more inconvenient for these witnesses than a trial in the City of Ventura. 

In addition, Plaintiffs have submitted evidence with their Opposition that Travis’s medical providers are located in Los Angeles County.  These medical providers seem to be central, necessary witnesses, and a trial in Ventura would likely be substantially less convenient for them than a trial somewhere in Los Angeles County.  Defendant fails to rebut this point in its Reply.

In sum, Defendant has not met its burden on this motion.  Accordingly, the motion is DENIED.

Conclusion

The Court DENIES the motion of Defendant Bell Canyon Association, Inc. to change venue.