Judge: Steven A. Ellis, Case: 23STCV26973, Date: 2025-04-30 Tentative Ruling

Case Number: 23STCV26973    Hearing Date: April 30, 2025    Dept: 29

Emery v. Bob Hope Theatre
23STCV26973
Defendants' Motion to Change Venue

Tentative

The motion is denied.

Defendants' request for sanctions is denied.  Plaintiff's request for sanctions is granted in part.

Background

On November 2, 2023, Edward Emery (“Plaintiff”) filed a complaint against Bob Hope Theatre, ASM Global (collectively “Defendants”), and Does 1 through 50 for general negligence and premises liability arising out of an alleged slip and fall on November 28, 2021.  In the complaint, Plaintiff alleges that the incident occurred at the “Bob Hope Theatre, located at 242 E. Main St., Stockton, CA 95202.”  (Complaint, at p. 4.)

On January 8, 2024, Defendants filed an answer.

On August 28, 2024, Plaintiff filed a First Amended Complaint (the “FAC”).  In the FAC, Plaintiff corrects the date of the incident (to November 27, 2021) and again alleges that the incident occurred at the “Bob Hope Theatre, located at 242 E. Main St., Stockton, CA 95202.”  (FAC, at p. 4.).

On October 31, 2024, Defendants filed an answer to the FAC.

On November 12, 2024, the Court, on the stipulation of the parties, continued the trial date to August 29, 2025.

On March 11, 2025, Defendants filed this Motion to Change Venue.  Defendants also seek monetary sanctions.  Plaintiff filed an opposition, along with his own request for monetary sanctions, on April 7.  Defendants filed a reply on April 23.

Legal Standard

Code of Civil Procedure section 395 establishes various rules for venue and provides, in relevant part:

“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.”

(Code Civ. Proc., § 395, subd. (a).)

When an action is filed in an improper court, section 396b sets forth the applicable procedure for a defendant to seek to transfer venue:

“[I]f an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.”

(Code Civ. Proc., § 396b, subd. (a).)

Section 396b also contains a provision for sanctions:

“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.” 

(Id., subd. (b).

In addition, and independently, section 397 provides for a change of venue under other circumstances, including “[w]hen the court designated in the complaint is not the proper court” and “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.”  (Code Civ. Proc., § 397, subds. (a), (c).) 

Discussion

Defendants move to change venue under Code of Civil Procedure sections 396b and 397.

Defendants’ request under section 396b is plainly untimely.  Under the express provisions of the statute, a motion under 396b must be brought at within the time allowed to respond to the complaint.  Here, Defendants answered the complaint in January 2024 and answered the FAC in October 2024.  This motion was not filed until March 2025.

Defendants’ request under section 397 is also untimely.  Although there is no statutory time limit on when a motion to change venue under section 397 may be filed, courts have stated that the motion “must be made within a reasonable time after the answer is filed.”  (Thompson v. Super. Ct. (1972) 26 Cal.App.3d 300, 306; see also Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295 [“It is the universal rule in this state that motions of this character must be made within a reasonable time.”]; 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2024) ¶ 3:568; cf. Ventura Unified School Dist. v. Super. Ct. (2001) 92 Cal.App.4th 811, 815 [stating, under a separate venue statute for actions against public entity defendants, that “the right to transfer may be waived if there is unreasonable delay”].)

As noted above, Defendants appeared in January 2024 and did not file this motion until March 2025, fourteen months later (and only five months before trial).  That is not within a reasonable time under these circumstances.  (See Newman v. County of Sonoma (1961) 56 Cal.2d 625, 628 [affirming denial of motion to change venue where defendant delayed in bringing the motion for eleven months].)  Given the facts that both the complaint and the FAC specifically alleged the location of the accident, that Defendants answered the complaint and the FAC, and that one of the named Defendants (Bob Hope Theatre) presumably knows where its theater is located, the purported delay of Defendants’ counsel in realizing that the case involved an incident in Stockton – which is mentioned only in briefing, not a declaration sworn under penalty of perjury – is no excuse for the delay.

The motion to change venue is denied.

Defendants’ request for sanctions is denied, as they are not the prevailing parties.

The Court exercises its discretion to grant in part Plaintiff’s request for sanctions.  Plaintiff is the prevailing party, Plaintiff reasonably rejected the untimely request to stipulate, and the portion of the motion based on Code of Civil Procedure section 396b was so obviously untimely under the plain text of the statute that the Court finds that it was not brought in good faith.  The Court sets sanctions in the amount of $900, based on three hours of attorney time multiplied by a reasonable billing rate for work of this nature of $300 per hour.

Conclusion

The Court DENIES Defendants’ motion to change venue.

The Court DENIES Defendants’ request for sanctions.

The Court GRANTS IN PART Plaintiff’s request for sanctions.

The Court ORDERS Defendants’ counsel Wood, Smith, Henning & Berman, LLP, to pay monetary sanctions under Code of Civil Procedure section 396b, subdivision (b), in the amount of $900 to Plaintiff (through counsel) within 30 days of notice.

Counsel for Plaintiff is ORDERED to give notice.