Judge: Upinder S. Kalra, Case: 22STCV17926, Date: 2023-11-21 Tentative Ruling

Case Number: 22STCV17926    Hearing Date: November 21, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   November 21, 2023                                       

CASE NAME:           American Express National Bank v. Sungmee Chung

CASE NO.:                22STCV17926

MOTION TO TRANSFER VENUE TO ORANGE COUNTY

MOVING PARTY:  Plaintiff American Express National Bank

RESPONDING PARTY(S): None as of November 15, 2023

REQUESTED RELIEF:

1.       An Order transferring venue to Orange County Superior Court pursuant to CCP § 397(a).

TENTATIVE RULING:

1.      Motion to Transfer Venue is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 1, 2022, Plaintiff American Express National Bank (Plaintiff) filed a Complaint against Defendant Sungmee Chung (Defendant) with two causes of action for: (1) Common Counts: Book Account, Account Stated; and (2) Quantum Meruit – Reasonable Value. This case concerns an American Express Card that Defendant used and has failed to pay over the past four years. Plaintiff alleges Defendant owes 50,565.41.

On September 26, 2022, the court held a Case Management Conference and found that service of the Summons and Complaint had not been completed. The court continued the CMC to January 30, 2023.

On January 30, 2023, the court held a Case Management Conference and found that Proof of Service had still not been completed. The court continued the CMC to May 1, 2023 and set an Order to Show Cause re: Why Sanctions Should Not Be Imposed Against Counsel for Plaintiff and Order of Dismissal for Failing to File Proof of Service set for the same date.

On May 1, 2023, the court held an Order to Show Cause re: Why Sanctions Should Not Be Imposed Against Counsel for Plaintiff and Order of Dismissal for Failing to File Proof of Service and a Case Management Conference. The court discharged the OSC, ordered sanctions due by May 31, 2023, and set a new OSC re Additional Sanctions and continued CMC for May 31, 2023.

On May 31, 2023, the court held an OSC and CMC. Plaintiff represented that they will proceed by way of publication. The court continued the CMC to September 27, 2023.

On September 27, 2023, the court held a CMC. Plaintiff represented that they finally located Defendant, who lives in Orange County, not Los Angeles County. The court continued the CMC to November 21, 2023.

Plaintiff filed the instant motion on October 17, 2023 and served it on Defendant’s alleged address in Irvine, California. Any oppositions were due on or before November 7, 2023. As of November 15, 2023, there is no opposition filed.

LEGAL STANDARD:

“Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.]’ [Citation.]”  (Dow AgroSciences, LLC v. Superior Court (2017) 16 Cal.App.5th 1067, 1076.)¿ CCP § 397(a) states: “The court may, on motion, change the place of trial in the following cases: (a) When the court designated in the complaint is not the proper court.”

“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…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.”  (CCP § 395(a).)¿¿ 

The burden is on the moving party to establish facts justifying the transfer.  (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 928.)  Absent “an affirmative showing to the contrary the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action.”  (Id.; Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) 

Plaintiff also cites CCP § 396b(a), but this section applies when a Defendant moves for transfer, not when a Plaintiff does so.

ANALYSIS:

Plaintiff contends that transfer to Orange County Superior Court is proper because it has learned that Defendant resides in Orange County, not in Los Angeles County as it previously alleged in the Complaint.

The court agrees with Plaintiff that transfer to Orange County Superior Court is proper. First, Plaintiff believed Los Angeles was proper at the time it filed the Complaint. (Gin Decl. ¶ 2.) Plaintiff subsequently learned through its efforts to serve Defendant that the Los Angeles address it had was improper. (Id. at ¶ 3.) Plaintiff subsequently determined a proper address in Irvine, California using skip tracing tools. (Id. at ¶ 4.)

Accordingly, the court GRANTS the motion to transfer.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

2.      Motion to Transfer Venue is GRANTED.

Plaintiff is ordered to pay the transfer fee within five days of notice of this order.  (Code Civ. Proc. § 399(a).) 

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             November 21, 2023                __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court