Judge Theresa M. Traber, Case Number: 21STCV39278, Date: 2024-02-01 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV39278, Date: 2024-02-01 Tentative Ruling

Case Number: 21STCV39278 Hearing Date: February 1, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 1, 2024 TRIAL DATE: September 17, 2024

CASE: Loretta L. Tobin v. Ernst & Haas Management Co., Inc., et al.

CASE NO.: 21STCV39278

MOTION TO TRANSFER VENUE

MOVING PARTY: Defendant Solimar Homeowner’s Assocation

RESPONDING PARTY(S): Plaintiff Loretta L. Tobin

CASE HISTORY:

10/05/21: Complaint filed.
12/29/21: Linda J. Vitz substituted in for Doe Defendant #1

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a habitability defect action. Plaintiff leased an apartment from Defendants that she alleges contained toxic mold.

Defendant Solimar Homeowner’s Association moves to transfer this action to Orange County.

TENTATIVE RULING:

Defendant Solimar Homeowner’s Association’s Motion to Transfer Venue to Orange County is DENIED.

DISCUSSION:

Defendant Solimar Homeowner’s Association moves to transfer this action to Orange County on the ground that this action was not commenced in a proper venue, and that it is in the interest of justice and the convenience of witnesses to litigate this matter in Orange County.

Improper Venue

Defendant first argues that transfer of this action is mandatory because Los Angeles is not a proper venue for this dispute.

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, transfer is mandatory under section 396b(a) if the action was not filed in the proper court. On determining the proper court in which to file an action, Code of Civil Procedure section 395(a) provides:

(a)¿Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, 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. . . . Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary. . . .

(Code Civ. Proc. § 395(a) (bold emphasis added).) An action against a corporate defendant may be brought where its principal place of business is located. (Code Civ. Proc. § 395.5.) The burden is on the moving party to establish that the plaintiff’s venue selection is not proper under any statutory grounds. (Fontaine v. Superior Court. (Cashcall, Inc.) (2009) 175 Cal.App.4^th, 830, 836.)

Defendant contends that this is an action pertaining to real property subject to section 392, which states that the court in the county where the subject property is located is the proper court for, inter alia, “the recovery of real property, or of an estate or interest therein, or for the determination in any form, of that right or interest, and for injuries to real property.” (Code Civ. Proc. § 392(a)(1).) The Complaint freely alleges that the rental premises are located in Huntington Beach, California, and that the central factual allegations concern Defendants’ failure to maintain the subject property, causing the growth of toxic mold. (See, e.g., Complaint ¶¶ 2, 13-14.) According to Defendant, the gravamen of this action is an injury to Plaintiff’s rights and interests in land as a tenant. (See Grocers’ Fruit Growing Union v. Kern County Land Co. (1907) 150 Cal. 466, 472 [Gravamen of complaint was specific performance of contract for sale of land notwithstanding claim for accounting].)

Plaintiff, in opposition, argues that her claims are properly understood as tort and contract claims independent of her real property rights, and therefore that venue is proper under section 395(a) because Defendant Ernst & Haas resides in Long Beach, within the County of Los Angeles. (Complaint ¶ 22.) As Plaintiff states, the general rule is that, when the “main relief sought in a case does not relate to rights in real property,” section 395(a) applies. (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 497.) Indeed, many of Plaintiff’s claims appear on their face to seek relief for injuries to Plaintiff’s person for Defendants’ conduct. For example, the fourth cause of action for premises liability, the seventh and eighth causes of action for intentional and negligent infliction of emotional distress, and the tenth and eleventh causes of action for fraud and negligent misrepresentation are tort claims seeking relief for physical and emotional injuries. (See, e.g., Complaint ¶¶ 156-57.) Further, the remaining claims, including the first three causes of action for breach of the implied covenants of good faith, and quiet enjoyment and breach of the implied warranty of habitability, as well as the ninth cause of action for breach of contract, are definitionally based in the agreement to rent the property, not in Plaintiff’s property rights. “The [implied] covenant of good faith and fair dealing [is] implied by law in every contract.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1369.) Similarly, “[e]very lease includes an implied covenant of quiet enjoyment protecting the lessee from any act or omission by the lessor which interferes with the lessee's right to use and enjoy the premises for the purposes contemplated by the lease.” (Avalon Pac.-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1191.) Likewise, the California Supreme Court ruled decades ago that “modern conditions compel the recognition of a common law implied warranty of habitability in residential leases.” (Green v. Superior Ct. (1974) 10 Cal.3d 616, 629.)

In reply, Defendant argues that the Court rejected many of Plaintiff’s claims as inadequately pled in ruling on a demurrer to the Complaint in May 2022, and so the Court should not consider those claims here. That ruling was issued on May 11, 2022, three months before this Defendant was named as a Doe Defendant. (See August 17, 2023 Amendment to Complaint.) Moreover, the Court’s ruling only sustained the demurrer as to the claims for breach of the implied covenant of good faith and fair dealing (first cause of action), breach of contract (ninth), fraud (tenth), and negligent misrepresentation (eleventh). (May 11, 2022 Minute Order.) The Court overruled the demurrer as to the claims for breach of the implied covenant of quiet enjoyment and implied warranty of habitability in the second and third causes of action. (Id.) Put differently, several of the claims which support the characterization of this action as grounded in personal injury or in contract either survived that demurrer, such as breach of the implied covenant of quiet enjoyment, or were never challenged in the first place, as was the case for premises liability.

The Court is persuaded by Plaintiff’s arguments and by the Court’s own review of the allegations in the Complaint that the gravamen of this action is either an injury to Plaintiff’s person or a violation of Plaintiff’s rights in contract, not an injury to Plaintiff’s rights and interests in land. In either case, venue is proper in any county in which some or all of the Defendants in this action reside. (Code Civ. Proc. § 395(a).) As an undisputed allegation is that the Ernst & Haas Defendants have a business address in Long Beach, within Los Angeles County (Complaint ¶ 22), venue is proper inthe County of Los Angeles. Therefore, transfer of venue is not required under Code of Civil Procedure section 396b.

Discretionary Transfer

Defendant contends in the alternative that the Court should exercise its discretionary authority to transfer venue to Orange County for the convenience of witnesses.

Code of Civil Procedure section 397 grants the Court discretionary authority to change the place of trial in certain cases, including, as relevant here:

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

. . .

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

. . .

(Code Civ. Proc. § 397(a), (c).)

In a motion brought under section 397, subdivision 3, “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. [Citations.]” (Pesses v. Superior Court (1980) 107 Cal.App.3d 117, 124 [165 Cal.Rptr. 680].) “[It] is not only necessary that convenience of witnesses be served, but it is equally essential that the ends of justice be promoted. [Citation.]” (Wirta v. Vergona (1957) 155 Cal.App.2d 29, 32 [317 P.2d 78].) While a motion made under this section is addressed to the discretion of the trial court, that discretion is not unfettered. For instance, except under limited circumstances, the court may not consider the convenience of the parties or of their employees in passing upon the motion. (Peiser v. Mettler (1958) 50 Cal.2d 594, 612 [328 P.2d 953, 74 A.L.R.2d 1] [convenience of parties not to be considered]; International Investment Co. v. Chagnon (1959) 175 Cal.App.2d 439, 446 [346 P.2d 209] [convenience of a party’s employees not to be considered].)

There is, however, an exception to the rule prohibiting consideration of convenience to a party when “the serious illness of a party will prevent his traveling to attend the trial in the other county and his testimony is material . . . . [Citations.]” (Simonian v. Simonian (1950) 97 Cal.App.2d 68, 69 [217 P.2d 157]; Kroesen v. Gordon (1943) 61 Cal.App.2d 385, 387 [142 P.2d 935]; Borba v. Toste (1942) 52 Cal.App.2d 591, 593-594 [126 P.2d 655].) Likewise, a limited exception has arisen allowing a court to consider the convenience of witnesses who are employees of a party. That exception obtains when the employees are called as witnesses by the adverse party rather than on behalf of their employer. (J. C. Millett Co. v. Latchford-Marble G. Co. (1959) 167 Cal.App.2d 218, 227 [334 P.2d 72] [“. . . when such employees are being called by an adverse party, the court may properly consider their convenience. [Citation.]”]); Harden v. Skinner & Hammond (1955) 130 Cal.App.2d 750, 757 [279 P.2d 978] [“. . . these (employee) witnesses are not being called by their employer to testify for such employer. They are being called by the adverse party and so are, as to him, ordinary witnesses.”].)

(Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401-402 (bold emphasis added).)

Section 397, subdivision 3, of the Code of Civil Procedure provides that the court may, on motion change the place of trial “When the convenience of witnesses and the ends of justice would be promoted by the change.” In Willingham v. Pecora, 44 Cal.App.2d 289, 295 [112 P.2d 328], it was held that both of the conditions -- convenience of witnesses and the ends of justice -- must occur and that the moving party has the burden of proving that both conditions will be met.

The affidavits in support of the motion for change of venue on this ground 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. (Juneau v. Juneau, 45 Cal.App.2d 14 [113 P.2d 463]; San Jose Hospital v. Etherton, 84 Cal.App. 516 [258 P. 611]; Harden v. Skinner & Hammond, 130 Cal.App.2d 750, 755 [279 P.2d 978].)

(Peiser v. Mettler (1958) 50 Cal.2d 594, 607 (bold emphasis added).)

“It is no abuse of the trial court’s discretion to deny a motion for a change of the place of trial made on the ground of the convenience of witnesses, if the affidavit of the [party] in opposition to the motion shows that his witnesses will be inconvenienced if the change be ordered.” (People v. Spring Valley Co., supra, 109 Cal.App.2d 656, 667; Churchill v. White, 119 Cal.App.2d 503, 507 [259 P.2d 974].) And “The mere numerical majority of the witnesses on one side or the other does not necessarily determine the merits of the motion.” (Woods v. Silvers, 35 Cal.App.2d 604, 607 [96 P.2d 366]; People v. Spring Valley Co., supra, at 667). The motion is addressed to the trial court’s judicial discretion, and “. . . the moving party must stand upon the strength of his showing rather than upon the weakness, if any, of the opposition.” (Chaffin Construction Co. v. Maleville Bros., supra, 155 Cal.App.2d 660, 664.)

(Minatta v. Crook (1959) 166 Cal.App.2d 750, 755-57 (bold emphasis added).)

Defendant contends that all complained-of conduct occurred in Orange County and all witnesses and evidence are likewise located in Orange County. Defendants therefore argue that the case should be transferred to promote the convenience of the parties and the interests of justice. Defendant provides a list of witnesses likely to have information concerning this matter who reside in Orange County and repeat that the subject property is likewise located in Orange County, as is Defendant David Haas. (Declaration of Andrew Scoble ISO Mot. ¶¶ 23-25.) However, Defendant does not provide a single line of testimony from the witnesses themselves to establish that it would be unduly burdensome to require them to travel to Los Angeles from Orange County, as so many others do every day, to testify in this Court. Such a meager showing is not sufficient to demonstrate that the convenience of witnesses would be served by transferring this matter to Orange County.

CONCLUSION:

Accordingly, Defendant Solimar Homeowner’s Association’s Motion to Transfer Venue to Orange County is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 1, 2024 ___________________________________

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.