CASE NAME: THUNDERBOLD vs.? CAIN
HEARING ON MOTION TO/FOR TRANSFER CASE TO APPROPRIATE COURT
FILED BY UNIFUND CCR, LLC
* TENTATIVE RULING: *
The motion is denied.? The declaration in support of the motion lacks sufficient facts to allow the court to determine, where, in fact, the defendant is living; the declaration is general and conclusory in nature.? Furthermore, it appears from the court?s reading of the statute (CCP?396a) that subdivision (a) not (b) is applicable.? In pertinent part, subdivision (a) reads: ?if the complaint . . .? is not filed pursuant to this subdivision, no further proceedings may occur in the action or proceeding, except to dismiss the action or proceeding without prejudice.?? Subdivision (b), in pertinent part, provides:? ??If it appears from the complaint or affidavit, or otherwise, that the superior court or court location where the action or proceeding is commenced is not the proper court or court location for the trial, the court where the action or proceeding is commenced, or a judge thereof, shall, whenever that fact appears, transfer it to the proper court or court location, on its own motion, or on motion of the defendant, unless the defendant consents in writing, or in open court . . . to the keeping of the action or proceeding in the court or court location where commenced.?? In the instant case, the court does not have sufficient facts to transfer the case on its own motion based on the complaint or any affidavit filed with the complaint; and, of course, the defendant, not?having been served, is not bringing the motion.
The court orders that service be accomplished on the defendant on or before June 1, 2015; the court sets a case management conference for June 23, 2015 at 9:00 a.m., plaintiff to give notice to defendant that she need not appear at this case management conference and that she will be notified of a future date to appear; and the court sets an OSC re dismissal for failure to diligently prosecute this action for June 23, 2015 at 9:00 a.m.? The OSC will be discharged if the defendant has been served.? And if it appears from the proof of service that defendant is, in fact, a resident of Stanislaus County, the court will transfer the venue to the Superior Court of California in and for Stanislaus County.