Case Number: 19STCV13998 Hearing Date: August 28, 2019 Dept: 24

Defendant Marquez Brothers Foods, Inc.’s motion to transfer venue to Sacramento County is DENIED.

Plaintiff Juan Pablo Mayorga (“Plaintiff”) initiated this FEHA employment action against Marquez Brothers Foods, Inc. (“Marquez Foods”), Marquez Brothers International, Inc. (“Marquez International”) [added in FAC], and Marquez Brothers Enterprises, Inc. (“Marquez Enterprises”) [added in FAC] (collectively “Defendants”) on April 23, 2019.

The operative First Amended Complaint (“FAC”) alleges that Plaintiff was hired as a sales representative for Defendants. Defendants are all alter egos of one another. In or around Spring 2016, a warehouse manager began making inappropriate comments to Plaintiff who was the only non-Mexican employee. In or around May 2017, Plaintiff learned his wife was diagnosed with severe depression and was recommended to move to Southern California. Plaintiff told Human Resources, his supervisor, and Marquez about his wife’s condition and required a transfer to Los Angeles. Marquez Marquez told Plaintiff h would contact one of his family members who ran the Los Angeles location and see if there were any openings. Plaintiff told Marquez there are openings listed online and Marquez reached out to Los Angeles again. Plaintiff also suggested he could work remotely in the interim. However, a few days later Plaintiff received an email from Human Resources ordering him to turn in his phone and company property since he is voluntarily leaving the company. Plaintiff now resides in Los Angeles.

Defendant Marquez Foods filed the instant motion for transfer venue to Sacramento County on July 16, 2019. On August 15, 2019, Plaintiff filed an opposition. On August 21, 2019, Defendant filed a reply.

Legal Standard

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Superior Court of Alameda County (1984) 37 Cal.3d 477, 482.) Plaintiff’s choice of venue is presumptively correct, and Defendant bears the burden of demonstrating that venue is not proper there. (Battaglia Enterprises, Inc. v. Superior Court of San Diego County (2013) 215 Cal.App.4th 309, 313-14.)

The proper venue for an action alleging violations of the Fair Employment and Housing Act (“FEHA”) is “[1] in any county in the state in which the unlawful practice is alleged to have been committed, [2] in the county in which the records relevant to the practice are maintained and administered, or [3] in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice[.]” (Gov. Code § 12965(b).) Alternatively, if the defendant is not within any of these counties, the proper venue for a FEHA action is “within the county of the defendant’s residence or principal office.” (Id.) Section 12965(b) controls all FEHA actions, even if the plaintiff has alleged related common-law tort actions in addition to the FEHA causes of action. (Brown, supra, 37 Cal.3d at 488.)

The public policy of FEHA recognizing the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination also extends to venue of a FEHA case. (Brown, supra, 37 Cal.3d at 485.) “[V]enue is an important consideration for a plaintiff in an employment discrimination suit. Where the case is to be tried impacts on the cost of the litigation. Victims of employment discrimination are frequently unemployed – many times as the result of the alleged discrimination. They often lack financial resources. For such individuals, the costs of litigation pose a formidable barrier to the filing and prosecution of an FEHA action. The Legislature recognized this barrier and sought to alleviate it by providing these persons with a wide choice of venue. They should not be deprived of that choice simply because they choose to plead alternative theories of recovery. Nor should they be subject to the added burden of trying an action in a county which may be hundreds of miles away from their own choice of venue. Venue considerations also have a substantial impact on an attorney’s decision to undertake representation. An attorney is more likely to accept representation in an FEHA case if venue is available in a location that facilitates prosecution of the action and minimizes travel and other costs, including the costs of securing important witnesses for trial.” (Id. at 486.)
Judicial Notice

Defendant’s request for judicial notice is GRANTED. However, the Court may only take judicial notice of existence of judicial opinions and court documents, along with truth of results reached in documents such as orders, statements of decision, and judgments, but cannot take judicial notice of truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. (People v. Harbolt (1997) 61 Cal.App.4th 123, 126-127.) As these are declarations, the Court may only take judicial notice of their existence.

Venue

Defendant argue that venue is improper in Los Angeles County. Defendant contends that it does not have any operations or facilities in Los Angeles and Defendants are not alter egos of each other. Defendant argues that venue is proper in Sacramento County because (1) Defendant’s principal place of business is there, (2) Sacramento is where the unlawful practices are alleged to have occurred, and (3) Sacramento is where the relevant records are maintained. Further, all the witnesses are located in Sacramento and Plaintiff’s lead counsel resides in Sacramento.

In opposition, Plaintiff argues that venue is proper in Los Angeles under Government Code section 12965(b) because Los Angeles is where he would have worked or would have had access to the public accommodation but for the alleged unlawful practice.

The FAC is the operative pleading because it was filed one day prior to the filing of the instant motion. In the FAC, Plaintiff alleges that Defendants are all alter egos of each other, and Marquez Enterprises has a location in Los Angeles. (FAC ¶ 9.) Further, the SAC alleges that Plaintiff was told by Marquez that he could transfer to the Los Angeles location that his family member runs. (FAC ¶ 23.)

Thus, based on the complaint at the time the motion was filed, venue is proper in Los Angeles and Defendant has not met its burden to prove that it is not. Additionally, Defendant’s reliance on Ford Motor Credit Company v. Superior Court (1996) 50 Cal.App.4th 308 is misplaced. In Ford Motor Credit Company, Plaintiffs forum choice was based on their residence, rather than a basis under Section 12965(b).

Accordingly, Defendant’s motion is DENIED.

Moving party is ordered to give notice.