Case Number: BC691656    Hearing Date: October 04, 2018    Dept: 47

ADLI Law Group PC v. Rasheed Soofi, et al.

(1) MOTION TO DISMISS FOR INCONVENIENT FORUM;

(2) MOTION TO DISMISS FOR IMPROPER VENUE

MOVING PARTY:               (1) & (2) Defendant Rasheed Soofi, in pro per                                               

RESPONDING PARTY(S)  (1) & (2) Plaintiff ADLI Law Group, P.C.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:         

            Defendants have failed to pay for legal services rendered by Plaintiff.

            Defendant filed a Cross-Complaint alleging that Plaintiffs have engaged in a campaign of harassment and intimidation to force Cross-Complainant to relinquish his easements over Cross-Defendants’ property.

            Defendant Rasheed Soofi, in pro per moves to dismiss for inconvenient forum and for improper venue.

TENTATIVE RULING:

            Defendant Rasheed Soofi, in pro per’s motion to dismiss for inconvenient forum and motion to dismiss for improper venue are DENIED.[1]   Defendant is ordered to file an Answer within 20 days.  

DISCUSSION:

Motion To Dismiss For Inconvenient Forum

            The motion to dismiss for inconvenient forum is DENIED.  Defendant seeks to have this case tried in San Diego County.  A motion to dismiss based upon inconvenient forum seeks to have a lawsuit filed in a state other than California.  Section 410.30(a), which codifies the doctrine of forum non conveniens[2], states: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.”

Motion To Dismiss For Improper Venue

            Generally “[d]efendants have the burden of showing that venue is proper in the county to which they seek transfer and also of showing that [the] County is not a proper place for trial under any applicable theory. (Citations omitted.)”  Mosby v. Superior Court(1974) 43 Cal.App.3d 219, 228 (bold emphasis added).

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 performedwhere 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 (bold emphasis added).

Before reaching the determinative issue whether the underlying contract meets the “special contract in writing” requirement, it is necessary to set forth some general rules applicable to motions for change of venue that will focus our analysis.

The place of the making of a contract is where the last act necessary to the validity and binding effect thereof is performed. This “last act” is usually the acceptance of the offer. (Braunstein v. Superior Court (1964) 225 Cal.App.2d 691, 696 [37 Cal.Rptr. 666].) This place of making is the place where the obligation of the defendant arises unless there is a special contract in writing to the contrary. (Armstrong v. Smith (1942) 49 Cal.App.2d 528, 533-534 [122 P.2d 115].)

The performance material under section 395 is the performance of the defendant. (Meyer v. Burdett Oxygen Co. (1959) 170 Cal.App.2d 519, 523 [339 P.2d 243].)

The burden of proof to negate proper venue in the county where the action is commenced is upon the party seeking to change venue. The prima facie presumption that plaintiff has selected the proper venue must be overcome by that moving party. (Ward Mfg. Co. v. Miley (1955) 131 Cal.App.2d 603, 606-607 [281 P.2d 343]; Hearne v. De Young (1896) 111 Cal.373, 376 [43 P. 1108].)

It is the moving defendant’s burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds. Thus, here defendant must show (1) that Los Angeles County is not where the contract was made; (2) that Los Angeles County was not the residence of the defendants at the time the action was commenced; and (3) that there is no “special contract in writing” specifying defendant’s performance was to occur in Los Angeles County.

A defendant entitled to a change of venue as to one count in a multiple count complaint is entitled to the change as to the entire action. (Jhirmack Enterprises, Inc. v. Superior Court (1979) 96 Cal.App.3d 715, 720 [158 Cal.Rptr. 192].)

Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1045-46 (bold emphasis and underlining added).

            Although the combined opposition references a Declaration of Michael N. Berke, no such declaration was filed.  Nonetheless, Defendant has not met his burden of demonstrating that San Diego is the proper venue for this action, and that Los Angeles County is not the proper venue.

            The Complaint itself admits that Defendant resides in San Diego County.  Based upon the Declaration of Rasheed Soofi, Defendant did not accept the offer to retain Plaintiff as his counsel until he signed the retainer signature page in Defendant’s office in San Diego; prior to that Defendant had only been in discussions with Plaintiff to obtain information on the estimated cost of representation.  Declaration of Rasheed Soofi ¶¶ 4 – 6.

            However, it appears that the place of Defendant’s performance under the contract (payment) would be performed in Los Angeles County, where Plaintiff’s office is located, because Defendant admits that eight weeks after Plaintiff began representing Defendant USA Pharma Inc. at Defendant Soofi’s request, Defendant received a legal bill for $45,000.  Soofi Decl., ¶ 6.  In this regard, Defendant’s performance of the payment obligation would be satisfied by sending payment to Plaintiff’s office in Los Angeles.  Thus, venue is proper in Los Angeles County.

            Moreover, because Defendant has not yet answered the complaint, convenience of witnesses cannot be considered at this time.

“The court will not entertain a motion for change of venue on the ground of convenience of witnesses when the defendant has not filed an answer, for the reason that until the issues are joined the court cannot determine what testimony will be material. [Citation.] For the same reason, a motion for change of venue cannot be defeated on the ground of convenience of witnesses until an answer is filed.” (Johnson v. Superior Court (1965) 232 Cal.App.2d 212, 214 [42 Cal. Rptr. 645].)

Cholakian & Associates v. Superior Court (2015) 236 Cal.App.4th 361, 368.

            Accordingly, the motion to change venue is DENIED.

            Additionally, this Court now finds that the Defendant/moving party has made a general appearance, by means of his various ill-fated and ill-conceived motions.  He is now ordered to file an Answer only within 20 days.  If he does not do so, the Plaintiff may request entry of default.

 

            Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   October 4, 2018                                ___________________________________

                                                                                    Randolph M. Hammock

                                                                                    Judge of the Superior Court

[1] Indeed, this current motion appears to be, in essence, the same motion is substance, which was previously denied by this Court.  Enough is enough.

[2] “Code of Civil Procedure section 410.30, subdivision (a), is a statutory codification of the doctrine of forum non conveniens. . .”  Lu v. Dryclean-U.S.A. of California, Inc. (1992) 11 Cal.App.4th 1490, 1493  n1.

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