Judge: Theresa M. Traber, Case: 21STCV35300, Date: 2023-02-21 Tentative Ruling

Case Number: 21STCV35300    Hearing Date: February 21, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 21, 2023                 TRIAL DATE: September 19, 2023

CASE:                         Timothy Joseph Toups (deceased) et al. v. 3M Company, et al.

CASE NO.:                 21STCV35300           

MOTION TO TRANSFER ACTION TO SAN DIEGO COUNTY SUPERIOR COURT

MOVING PARTY:               Defendants Rust-Oleum Corporation and DAP products, Inc.

RESPONDING PARTY(S): Plaintiffs Timothy Joseph Toups (deceased); Breeanna Patton, and Kylie Young

CASE HISTORY:

·         09/24/21: Complaint filed.

·         10/20/21: The Quikrete Companies, LLC substituted in as Doe 1

·         11/29/21: Dismissal entered as to Quikrete International, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a toxic tort and survival action. Plaintiffs allege that Timothy Joseph Toups, now deceased, was exposed to various toxic chemicals while working in construction, which ultimately caused his fatal illness.

Defendants Rust-Oleum Corporation and DAP Products, Inc. move to transfer venue to San Diego County pursuant to Code of Civil Procedure section 397(c). Six other defendants filed joinders.

TENTATIVE RULING:

Defendants Rust-Oleum Corporation and DAP Products, Inc’s motion to transfer action to San Diego County Superior Court is DENIED.

The joinders of (1) Sunnyside Corporation; (2) Momentive Performance Materials, LLC; (3) Masterchem Industries, LLC; (4) Weiman Products, LLC; (5) W.M. Barr & Co., Inc.; and (6) 3M Company are DENIED as untimely.

DISCUSSION:

Defendants Rust-Oleum Corporation and DAP Products, Inc. move to transfer venue to San Diego County pursuant to Code of Civil Procedure section 397(c).

Insufficient Notice

Code of Civil Procedure section 1005(b) requires any motion that is served electronically or by overnight service to be served and filed 16 court days plus two calendar days before the date the motion is set for hearing. This motion is set for hearing on February 21, 2023. Accounting for court holidays, 16 court days before the hearing was January 26, 2023. For overnight or electronic service, this motion should have been served and filed no later than January 24, 2023, two calendar days earlier. However, this motion was served and filed on January 25, 2023. This motion is therefore improperly noticed. However, as Plaintiffs have responded to the motion and have not objected to the motion on this basis, the Court will overlook the defective service and consider the motion on its merits.

Joinders

            A notice of joinder must be filed and served pursuant to the same deadlines as the papers for which the joinder was made. (See, e.g., Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719; see also Grieves v. Superior Court (1982) 157 Cal.App.3d 159, 163 n.3 [noting that “the trial court treated [defendant’s] notice of joinder as a motion”].)

            Here, six defendants have filed joinders to the motion: (1) Sunnyside Corporation; (2) Momentive Performance Materials, LLC; (3) Masterchem Industries, LLC; (4) Weiman Products, LLC; (5) W.M. Barr & Co., Inc.; and (6) 3M Company. As stated above, the last date to file and serve this motion timely for this hearing was January 26, 2023, and then only if the joinders were personally served on Plaintiffs. Only the joinders of Defendants Sunnyside Corporation and Momentive Performance Materials LLC’s were filed and served on that date. However, as with the underlying motion, these joinders were served by electronic transmission, not by personal service, and are therefore also untimely. The remaining joinders were filed after January 26 and therefore are untimely regardless of the manner of service.

            Accordingly, the joinders of the defendants listed above are DENIED.

Analysis

            Defendants Rust-Oleum Corporation and DAP Products, Inc. move to transfer venue to San Diego County pursuant to Code of Civil Procedure section 397(c).

Section 397(c) permits the Court to change the place of trial “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.”  A motion for change of venue based on the convenience of witnesses “must be made within a reasonable time after the case is at issue on the facts.” (Cooney v. Cooney (1944) 25 Cal.2d 202, 208.)

Here, Defendants filed their answers to the First Amended Complaint on January 25, 2023, at the same time this motion was filed. However, Defendants answered the original Complaint on February 28, 2022, almost one year earlier. In light of the nature of this case and Defendants’ explanation of the information obtained in recent discovery that is relevant to this motion, however, the Court finds that the motion was filed within a reasonable time after answering. 

In a motion brought under Section 397(c), “the burden [of proof] rests on the party moving for transfer to establish grounds for change of venue, on the theory the plaintiff lays the venue and it is presumptively correct.”  (Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401 (citation omitted).) “[It] is not only necessary that convenience of witnesses be served, but it is equally essential that the ends of justice be promoted.” (Ibid. (citation omitted).) The moving party has the “burden of proving that both conditions will be met.” (Peiser v. Mettler (1958) 50 Cal.2d 594, 607.) To meet this burden, the affidavits in support of the motion “must set forth the names of the witnesses, the nature of the testimony expected from each, and the reasons why the attendance¿of each would be inconvenient.” (Ibid.) 

Here, Defendants have not met this burden. The declaration of Defendants’ counsel identifies several potential witnesses and describes the expected nature of their testimony. (Declaration of Karen M. Sullivan ISO Mot. ¶¶ 17-19.) This declaration only states, however, that these witnesses reside and/or work in San Diego County, and that requiring them to travel to Los Angeles County is “inconvenient and a hardship thrust upon each” owing to the distance and traffic between San Diego and Los Angeles Counties. (Id. ¶ 14.) This is not an appropriate conclusion on the part of Defendants’ counsel. There is no evidence that any of these witnesses do not routinely travel between Los Angeles County and San Diego County, or that they could not feasibly do so to appear at a trial in Los Angeles. It may very well be the case that San Diego County would be more convenient for many witnesses who may be called in this case. Ultimately, however, Defendants have not shown that traveling to Los Angeles Superior Court would be any great inconvenience (or even any inconvenience) for these witnesses – e.g., based on specific evidence that they would not be able to get back to San Diego County in time to pick up children from school, that they have relatives who rely on them to be nearby in San Diego County during court hours for whom they would have to make alternative arrangements if they were called to testify, or similar circumstances.

As Defendants have not demonstrated that transfer to San Diego County would serve the convenience of witnesses to the Court’s satisfaction, the Court does not address the separate issue of whether the “ends of justice” would be promoted by this transfer.   

CONCLUSION:

            Accordingly, Defendants’ Motion to Change Venue is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: February 21, 2023                               ___________________________________

                                                                                    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.