- Motion to Transfer Action (Venue)?????????
- CMC
The Court is inclined to grant Defendants Padilla and Precision Engineering Surveyor?s Motion to transfer venue to San Bernardino County Superior Court.
Plaintiff takes the position that the general rule of venue (the residence of the defendant, in CCP ?395(a)), does not apply because a more specific venue provision applies citing Brown v. Sup. Ct. 37 Cal.3d 477, 483 (Opp. Brief at 2:9). ?Plaintiff seems to misread Brown. The opinion went on to say, ?[i]t is well established that a defendant is entitled to have an action tried in the county of his ? residence unless the action falls within some exception to the general venue rule. . . . [as] Section 395 codifies?, but? ?[n]one of these cases involved several causes of action subject to conflicting venue provisions.?? Brown, 37 Cal.3d 477, 483-4 (emphasis added).? ?In cases with mixed causes of action, a motion for change of venue must be granted on the entire complaint if the defendant is entitled to a change of venue on any one cause of action.?? Id. at 488.
That seems to be the case, here.? Plaintiff sued multiple defendants, on multiple causes of action, creating a situation where different venue rules seem to apply.? While Plaintiff focuses on the venue provisions specific to its breach of contract claims (see Opp. Brief at 2-4, CCP ?395(a), 395.5), this ignores other causes of action, like conversion and replevin.? For those two transitory claims, the general rule of the residence of the defendant applies (?395(a)).? See 3 Witkin, Cal. Proc. 5th Actions ? 822 (2008) (?damages for conversion or for specific recovery are ordinarily transitory actions triable at the defendant’s residence.?); ?Haurat v. Superior Court for Los Angeles County(1966) 241 Cal.App.2d 330, 333 (?The general rule is that the residence of defendant, is the proper place for trial, and this applies to personal torts not involving physical injury, including conversion.?); accord Spangenberg v. Spangenberg (1932) 123 Cal.App. 387, 390-91 (conversion of personal property is subject to general rule of venue at the defendant?s residence).
In mixed cause of action cases, ?venue must be proper as to?all?causes of action and defendants joined. If not, any defendant is entitled to seek a change of venue (usually, of course, to the county where any defendant resides).??? Cal. Prac. Guide Civ. Pro. Before Trial ?3:515 (Rutter Group 2016); Gallin v. Superior Court (1991) 230 Cal.App.3d 541, 544?45 (in mixed cases, ?[w]here the defendant is entitled to a change of venue as to one cause of action, the entire action is transferred?); Capp Care, Inc. v. Sup.Ct. (1987) 195 Cal.App.3d 504, 508.
Because Plaintiff has brought conversion and replevin claims against the Defendants, and they are entitled to have those brought in the county of their residence, the entire action must be transferred there under the above rules.
Plaintiff argues its choice of forum is presumptively correct.? CCP ?395.5, allows multiple choices for venue for corporate defendants, including the place of performance of a contract, or place of the breach of the contract.? Among those permissible venues, it appears the plaintiff?s choice of venue is accepted.?Battaglia Enterprises, Inc. v. Superior Court of San Diego County (2013) 215 Cal.App.4th 309, 313.
However, as noted, this is not purely a contract or corporate-defendant action, it is a mixed action, and at least for the conversion and replevin claims, the venue seems to lie in another county.
For the foregoing reasons, the Motion is granted.
Further, it appears that some of Plaintiff?s arguments about contract-based venue lacked evidentiary support.? It argued the Lease was signed at offices in Irvine, the guaranty was accepted there too, and payments were to be received in Costa Mesa. (See Opp Brief p. 3, 4).? However, the Court was unable to find evidentiary support for these assertions in a declaration. (See Chiongson Decl).
Defendants are awarded $1,575 in attorney fees pursuant to CCP ?396b(b).? There was a reasonable effort to resolve the matter informally, and Plaintiff?s counsel concedes that the proposal was rejected. (Chiongson Decl.).?? The moving papers seem to lay out the relevant law which was firmly opposed.? Finally, Plaintiff sought attorney fees as well.? The Court finds the moving parties are entitled to the requested sanctions under the circumstances.
Plaintiff must pay the transfer fees as well (CCP 399).
Defendants to give notice.