Judge: Steven A. Ellis, Case: 22STCV30861, Date: 2024-01-04 Tentative Ruling

Case Number: 22STCV30861    Hearing Date: January 4, 2024    Dept: 29

Tentative

The Court GRANTS the motion to transfer venue to San Diego County Superior Court under Code of Civil Procedure 397.

Background

In this case, Plaintiff Sandra Azucena Ramirez alleges that she was injured when she slipped and fell on a hazardous liquid substance on the floor of commercial premises located on Fletcher Parkway in El Cajon, California.  In the Complaint, filed on September 21, 2022, Plaintiff Ramirez asserts claims for negligence and premises liability, and her husband, Plaintiff Florentino Ajejandre, asserts a claim for loss of consortium.  The Defendants in the Complaint are identified as Pacific Retail Capital Partners LLC; Starwood Capital Group Management LLC; Starwood Property Trust, Inc.; ERMC Property Management Co of Illinois LLC; and Does 1 through 100.

On January 3 and October 4, 2023, Plaintiffs amended their Complaint to name Star-West Parkway Mall GP, LLC as Doe 1; Starwood Retail Property Management as Doe 2; ERMC, LLC as Doe 3; Professional Security Consultants as Doe 4; and Wetzel’s Pretzels, LLC as Doe 5.

On January 9 and April 25, 2023, the Court, at the request of Plaintiffs, dismissed their claims against all of the four initially named defendants: Pacific Retail Capital Partners LLC; Starwood Capital Group Management LLC; Starwood Property Trust, Inc.; and ERMC Property Management Co of Illinois LLC. 

The five entities initially named as Doe defendants have appeared and filed answers: Star-West Parkway Mall GP, LLC (“Star-West”); Starwood Retail Property Management (“Starwood Retail”); ERMC, LLC (“ERMC”); Professional Security Consultants; and JES Family, Inc. (erroneously sued as Wetzel’s Pretzels, LLC).

On November 8, 2023, Defendants Star-West, Starwood Retail, and ERMC (collectively, “Moving Parties”) filed this motion to transfer venue to San Diego Superior Court.  Plaintiffs filed their opposition on November 16, and Moving Parties filed their reply on December 21.

Legal Standard

Pursuant to CCP §395(a), an action for personal injuries is properly brought in 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.”  

A motion for change of venue must be supported by competent evidence, such as the complaint and declarations of the parties.  (Mosby v. Superior Court (1974) 43 Cal.App.3d 219, 227; see also Lieppman v. Lieber (1986) 180 Cal. App. 3d 914, 919 [declaration that relies on hearsay, generalities, and conclusions must be disregarded in determining the motion].)  When the motion seeks transfer to the moving defendant’s county of residence on wrong court grounds, the motion must establish the defendant was a resident of the county to which the transfer is sought at the time the action was commenced.  (Sequoia Pine Mills, Inc. v. Superior Court of Tuolumne County (1968) 258 Cal.App.2d 65, 67-68.)  

Statutory provisions relating to venue in civil actions provide that, when a defendant believes that an action has been filed in an improper or unauthorized venue and wishes to object to trial of the proceeding in that venue, the defendant must object specifically and promptly, or the objection will be forfeited. (People v. Simon (2001) 25 Cal. 4th 1082, 1102.)

Additionally, under CCP § 397, after a motion has been filed a court may change the place of trial:

“(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.”

Discussion

Moving Parties seek to transfer venue to San Diego County Superior Court.  As Moving Parties point out, the incident occurred at a mall in San Diego County, the Plaintiffs reside in San Diego County, most or all of their 20 identified treating physicians are located in San Diego County, and the other witnesses (including Defendants’ employees) are located primarily if not entirely in San Diego County.  (See Norman Decl., Exh. 1 [responses to Form Interrogatories], at 6.4, 12.1 &  Exh. 2 [responses to Special Interrogatories], at 7.) 

Moving Parties also argue that while one of the originally named defendants may have resided in Los Angeles County, all of those defendants have been dismissed.  (Motion, at p. 5.)  Moving parties recognize that the case has been pending for more than a year but argue that the parties have spent most of the past year identifying the proper parties, adding them to the case, and dismissing the original defendants, and that the Court has not yet issued any substantive rulings.  (Ibid.)

In response, Plaintiffs make essentially four arguments: (1) that one of the current defendants (Professional Security Consultants) is based in Los Angeles County; (2) that Plaintiff’s choice of venue is presumptive correct, is entitled to deference, and can only be overcome by a showing of substantial justification; (3) that the motion should be denied based on delay; and (4) any inconvenience to witnesses can be addressed by remote appearances or other technological solutions.

After careful consideration of all of the evidence and argument presented by the parties, the Court GRANTS the motion to transfer venue to San Diego County.  The Court recognizes, of course, that a plaintiff’s choice of where to file is entitled to deference, and that technology can be used to address the practical problems that arise when witnesses reside some distance from the courthouse.  Here, however, the incident occurred in San Diego County, and all or substantially all of the witnesses live and work in San Diego County. Under these circumstances, Moving Parties have shown that there should be a transfer of venue under Code of Civil Procedure section 397, subdivision (c).  Nor have moving parties unreasonably delayed in bringing their motion; the case is still at an early stage, and, indeed, two of the five defendants were not named until October and did not appear until December 2023, while this motion was pending.

Conclusion

The Court GRANTS the motion to transfer venue under Code of Civil Procedure 397. 

The Court ORDERS that this case be transferred to San Diego County Superior Court.

Moving Parties are ORDERED to pay all transfer fees (in both the Los Angeles County Superior Court and San Diego County Superior Court).

Moving Parties are ORDERED to give notice.