Judge: Theresa M. Traber, Case: 24STCV21339, Date: 2025-03-10 Tentative Ruling

Case Number: 24STCV21339    Hearing Date: March 10, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 10, 2025                      TRIAL DATE: NOT SET

CASE:                         James Womble, et al. v .Pieter Moerdyk, et al.

CASE NO.:                 24STCV21339           

MOTINO TO TRANSFER VENUE

MOVING PARTY:               Defendant Pieter Moerdyk

RESPONDING PARTY(S): No response on eCourt as of March 5, 2025

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a negligence action, filed on August 21, 2024 and  arising from a motor vehicle accident.

Defendant Pieter Moerdyk moves to transfer this action to the Superior Court of California for the County of Fresno.

TENTATIVE RULING:

Defendant’s Motion to Transfer Venue is DENIED.

DISCUSSION:

Defendant Pieter Moerdyk moves to transfer this action to the Superior Court of California for the County of Fresno.

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).) 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 he resides in Madera County, California and the accident in question occurred in Fresno County, California. This information is not set forth in the Complaint, and the only evidence of Defendant’s contention is a declaration from Defendant’s counsel, Susan Hobson.  Attorney Hobson’s boilerplate statement of personal knowledge notwithstanding, nothing in that declaration demonstrates how counsel for Defendant would have personal knowledge of the facts presented. (Declaration of Susan E. Hobson ISO Mot. ¶¶ 3-4.) Defendant has not demonstrated the impropriety of the present venue on this basis.

Defendant also purports to offer evidence of a stipulation to change venue executed by Plaintiff’s counsel on January 31, 2025. (See Hobson Decl. Exh. A.) However, counsel for Defendant has again failed to set forth any facts establishing the authenticity of the stipulation or of the purported signature by Plaintiff’s counsel. As no response to this motion has been filed, the Court cannot presume the authenticity of this document. Defendant has failed to demonstrate that venue should be transferred based on the stipulation.

As Defendant has failed to offer competent evidence justifying the relief sought, the Motion to Transfer must be denied.

CONCLUSION:

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

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 10, 2025                                  ___________________________________

                                                                                    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.