Judge: Theresa M. Traber, Case: 21STCV10861, Date: 2022-09-15 Tentative Ruling

Case Number: 21STCV10861    Hearing Date: September 15, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 15, 2022               TRIAL DATE: NOT SET

CASE:                         Sugarman Asset Management, LLC v. California Department of Transportation

CASE NO.:                 21STCV10861           

MOTION TO TRANSFER VENUE TO SAN JOAQUIN COUNTY

MOVING PARTY:               Defendant the People of the State of California, acting by and through the Department of Transportation

RESPONDING PARTY(S): No response on eCourt as of September 12, 2022

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for contractual fraud that was filed on March 19, 2021. Plaintiff alleges that Defendant, the California Department of Transportation, misrepresented the state of a piece of property to induce Plaintiff to purchase the property from Defendant.

Defendant moves to transfer venue to San Joaquin County.

TENTATIVE RULING:

Defendant’s Motion to Transfer Venue to San Joaquin County is DENIED.

DISCUSSION:

Defendant moves to transfer this case to San Joaquin County under Code of Civil Procedure sections 396b(a) and 395(a) on the ground that this action was not commenced in a proper venue. 

Procedural Defect

            Defendant noticed this motion under Code of Civil Procedure sections 395 and 396. Section 396 does not provide authority for a motion to transfer for improper venue. The body of Defendant’s motion makes plain that the intended citation was to the mandatory transfer provision in section 396b. The Court will accordingly construe the motion as seeking to transfer venue under section 396b and address it on the merits of that construction.

Request for Judicial Notice

            Defendant requests that the Court take judicial notice of the Complaint in this action. Defendant’s request is GRANTED pursuant to Evidence Code section 452(d) (court records).

Mandatory Transfer

            Defendant moves to transfer this action to San Joaquin County under the mandatory transfer provision of Code of Civil Procedure section 396b.

Code of Civil Procedure section 396b(a) provides: 

(a)¿Except as otherwise provided in Section 396a, if 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(a), bold emphasis and underlining added.) Thus, a motion to transfer venue under section 396b is timely only if filed either simultaneously with an answer, or before filing an answer and within the time to file an answer. Here, Defendant answered the Complaint on February 18, 2022, but the motion to transfer was not filed until July 22, 2022, five months later. Defendant’s motion is untimely.

            Defendant also raises an argument regarding the convenience of witnesses and promotion of the ends of justice under Code of Civil Procedure section 397. Section 397 was not identified as a basis for this motion in Defendant’s notice of motion. The Court therefore declines to consider this argument as it was not properly noticed.

CONCLUSION:

            Accordingly, Defendant’s Motion to Transfer Venue to San Joaquin County is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 15, 2022                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.