Defendants Mitchell A. Goodis, DDS and Mitchell A. Goodis, DDS, Inc. seek an order from the Court transferring this action to either El Dorado County Superior Court or Sacramento County Superior Court on the ground that the convenience of all parties, non-party witnesses and the ends of justice would be promoted by such a transfer.? Defendants further seek monetary sanctions of $3,570 from plaintiff?s attorney directly for his unreasonable refusal to stipulate.
In relevant part, CCP ? 395 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…? ?The general venue rule of CCP ? 395 applies when there is no other specific venue statute that applies.??Brown v. Sup. Ct.?(1984) 37 Cal.3d 477, 483.? When venue is proper in more than one county, a plaintiff can file suit in either county. CCP ? 395(a).? CCP ? 397 provides that: ?The court may, on motion, change the place of trial in the following cases: ?(c) When the convenience of witnesses and the ends of justice would be promoted by the change.?
Pursuant to Defendants? notice of motion, Defendants seek to transfer venue to either El Dorado or Sacramento County Superior Court based upon the ?convenience of all parties, non-party witnesses and the ends of justice would be promoted by such a transfer.?? Thus, although not specifically identified in their notice, Defendants seek to change venue based upon CCP ? 397(c).? Defendants contend that the case should be transferred to either El Dorado or Sacramento County because the alleged injury occurred in Sacramento County, the Plaintiff, all of the individual Defendants and all non-party witnesses reside in either El Dorado or Sacramento County.? Additionally, all of Plaintiff?s treatment relating to this action were sought in either El Dorado or Sacramento County and all ?treaters? are also located in El Dorado or Sacramento County.
Defendants further contend that the only relationship to Orange County is that Western Dental?s corporate offices are located here.? Otherwise, there is no connection to Orange County.? Thus, requiring all parties to travel to Southern California is not only inconvenient, but burdensome; and also impractical to non-party witnesses. Transferring this matter to either El Dorado or Sacramento County Superior Court will not only be for the convenience of the witnesses but will also promote the ends of justice.
In opposition, Plaintiff contends that this motion is premature.? The Court cannot entertain a motion for change of venue on the 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.??Cholakian & Assoc. v. Sup. Ct. (2015) 236 Cal. App. 4th 362, 368.? Plaintiff argues that since the moving party Defendants have not yet filed their answer, this motion cannot be heard now and must be denied as premature.
In reply, defendants assert that their motion is timely because CCP 396b permits Defendants to move to change venue at the time he or she answers, demurs, or moves to strike, or, at his or her options, without answering.? Defendants further contend that venue is improper and reiterate that Plaintiff, all individual defendants, all subsequent treaters, all non-party witnesses and all relevant evidence reside in either El Dorado or Sacramento County.? However, here, Defendants move to change venue based upon the convenience of witnesses and the ends of justice pursuant to CCP 397(c).? Accordingly, CCP 396b cited in defendants? reply does not apply.
A motion for change of venue based upon convenience of witness must be made within a reasonable time after a defendant has filed an answer.??Cholakian & Assoc. v. Sup. Ct. (2015) 236 Cal.App.4th 361, 368;?DeLong v. DeLong?(1954) 127 Cal.App.2d 373.? Until an answer has been filed, the Court cannot determine what matters are at issue and whether evidence offered by the proposed witnesses will be material.??Buran Equip. Co. v. Sup. Ct.?(1987) 190 Cal.App.3d 1662;?Johnson v. Sup. Ct.(1965) 232 Cal.App.2d 212.? Thus, the instant motion is untimely as Defendants have yet to file their answer in this instant matter.
Accordingly, Defendants? motion to transfer venue is DENIED without prejudice.
Both Defendants? and Plaintiff?s request for sanctions are also DENIED.
The Court also notes that the parties have an upcoming Post Arbitration Status Hearing on 10/25/2018 to discuss whether the matter should continue to be stayed and the status of the case.? All parties are ordered to appear at that hearing.
Plaintiff to give notice.