William Parrish vs Michael Avenatti et al
Case No: 19CV01686
Hearing Date: Wed Sep 04, 2019 9:30

Nature of Proceedings: Motion: Change Venue

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendants Jason Frank, Jason Frank Law, PLC, and Scott Sims to transfer venue is granted. This matter is ordered transferred to the Orange County Superior Court. The court awards expenses and fees pursuant to Code of Civil Procedure, section 396b, subdivision (b), in favor of the moving defendants and against counsel for plaintiffs, attorneys A. Barry Cappello, Leila J. Noel, Lawrence J. Conlan, Cappello & Noel LLP, in the amount of $3,500.00. Costs and fees shall be paid as provided in Code of Civil Procedure section 399.

Background:

On April 2, 2019, plaintiffs William Parrish and E. Timothy Fitzgibbons filed their complaint in this action asserting five causes of action: (1) professional negligence; (2) breach of fiduciary duty; (3) fraud—concealment; (4) conversion; and, (5) promissory estoppel. The complaint alleges that this case arises from professional misconduct and dereliction of duty by lawyer-defendant Michael J. Avenatti, his law firms, law partners and employees. (Complaint, ¶ 2.) Plaintiffs allege they were the clients of the lawyer-defendants who hired the lawyers to represent them in suing a third party for malicious prosecution in Santa Barbara County Superior Court. (Complaint, ¶ 3.)

The attorney-client fee contract between defendant Eagan Avenatti, LLP, (EA) and Parrish was entered into in Santa Barbara where Parrish resides. (Parrish decl., ¶¶ 3-4.)

Defendant Jason M. Frank is an attorney and a resident of Los Angeles County. (Frank decl., ¶¶ 1-3.) Frank is also the owner and president of his law corporation, defendant Jason Frank Law, PLC (JFL). (Frank decl., ¶¶ 4-6.) Frank was first an employee and then an independent contractor through JFL working for defendant EA in connection with the representation of plaintiffs. (Frank decl., ¶¶ 4, 8.) JFL’s principal place of business has been in Los Angeles County. (Frank decl., ¶ 7.) The work performed by Frank and JFL on behalf of plaintiffs occurred in Orange County. (Frank decl., ¶ 8.)

Defendant Scott Sims is an attorney and a resident of Orange County. (Sims decl.. ¶¶ 1-3.) Sims was previously employed by EA in connection with the representation of plaintiffs. (Sims decl., ¶¶ 4-5.) The work performed by Sims on behalf of plaintiffs occurred in Orange County. (Sims decl., ¶ 5.)

None of the other defendants in this action reside in Santa Barbara County. (Frank decl., ¶ 9.)

On July 18, 2019, Frank, JFL, and Sims (collectively, moving defendants) filed this motion to transfer venue to Orange County.

The motion is opposed by plaintiffs.

Analysis:

“Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.” (Code Civ. Proc., § 396b, subd. (a).) The exception provided in section 396a is not applicable here.

Moving defendants assert that this court is not the proper court for trial. “The moving party must overcome the presumption that the plaintiff has selected the proper venue. [Citation.] Thus, ‘[i]t is the moving defendant’s burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds.’ [Citation.] In opposing the motion to change venue, ‘[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint’s theory of the type of action but amplifying the allegations relied upon for venue.’ [Citation.]” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)

“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. … 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 performed, where 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.” (Code Civ. Proc., § 395, subd. (a).)

Here, plaintiffs alleges four tort claims and one claim for promissory estoppel. In opposition, plaintiffs argue that all of these claims arise out of the attorneys’ course of performance and ongoing representation of plaintiff which arose from the retainer letter with EA. The four tort claims are not claims that fall within the venue provision for contracts. (See Sausen v. Anderton (1954) 129 Cal.App.2d 324, 325-326 [fraud]; Haurat v. Superior Court (1966) 241 Cal.App.2d 330, 333 [conversion]; see also Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 180-181 [legal malpractice action is a tort, but may also be a contract claim where breach of professional obligation is also a breach of a contract obligation].) It is unclear whether an action for promissory estoppel is or is not an obligation subject to the venue provision for contracts. (Cf. Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1224 [limitations period for promissory estoppel based on two-year limitations period for actions arising under a contract].) Assuming that the promissory estoppel claim is a contract claim, the presence of the fraud and conversion action in the complaint at least presents a “mixed action.”

“In a mixed action, a plaintiff alleges two or more causes of action each of which is governed by a different venue statute. Or, two or more defendants are named who are subject to different venue standards. [Citation.] ‘The identifying characteristic of mixed actions is that two or more inconsistent venue provisions … appear to be concurrently applicable in the same case.’ [Citation.] [¶] 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.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 488.)

Plaintiffs further argue that venue is proper under section 395.5. “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.” (Code Civ. Proc., § 395.5.) “However, it is well recognized that when a plaintiff brings an action against several defendants, both individual and corporate, in a county in which none of the defendants reside, an individual defendant has the right to change venue to the county of his or her residence. This is true even though the action was initially brought in a county where the corporate defendants may be sued under Code of Civil Procedure section 395.5.” (Brown v. Superior Court, supra, 37 Cal.3d at p. 482, fn. 6.) Section 395.5 does not provide a basis for maintaining venue in Santa Barbara as to the individual moving defendants.

As to the tort causes of action, at a minimum, the moving defendants are entitled to a transfer of venue. For the tort causes of action, under section 395, subdivision (a), venue is proper only in a county of residence. For the same reason of the rule for mixed cases, it is not relevant whether the moving defendants are also alleged to have been acting as agents for other defendants for whom venue might otherwise be proper on the basis of contract venue. Moving defendants have presented undisputed evidence that no defendant is a resident in Santa Barbara County. The individual moving defendants are resident in Orange County and in Los Angeles County.

“ ‘If a plaintiff has failed to heed the venue rules above, and the defendant makes timely objection, the court must order the action transferred to any “proper” county requested by defendant. (This is true even if grounds exist for retransferring the action back to the county where filed, on the grounds of “convenience of witnesses” …)’ [Citation.]” (Cholakian & Associates v. Superior Court (2015) 236 Cal.App.4th 361, 373.)

“Section 398 expressly provides that when an action commenced in the wrong court is ordered transferred for that reason, it must be transferred to the proper court as stipulated by the parties. Absent such stipulation, it must be transferred to the proper court in a proper county designated by the defendant. [Citation.] Only if the parties have not stipulated, or the defendant has not designated a proper county, may the court designate the county of transfer.” (Cubic Corp. v. Superior Court (1986) 186 Cal.App.3d 622, 625.) The moving defendants here designate Orange County as the proper county of transfer. (Notice, p. 2.) The court will therefore grant the motion and order this matter transferred to the Orange County Superior Court.

In their moving papers, moving defendants request an order for expenses associated with the filing of this motion of approximately $9,200. (Memorandum in Support, p. 6.)“In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party’s papers, or on the court’s own noticed motion, and after opportunity to be heard.” (Code Civ. Proc., § 396b, subd. (b).)

Moving defendants present evidence that the counsel for the moving defendants had proposed stipulating to transfer venue to Orange County, but that counsel for plaintiffs declined. (MacGregor decl., ¶¶ 4-6.) The court finds that an offer to stipulate to change venue was reasonably made but was unreasonably rejected. In opposition, plaintiffs argue that their selection of Santa Barbara County was made in good faith. The court does not find that the venue selection of Santa Barbara was in good faith. Plaintiffs’ focus has been upon the appropriateness of venue for corporate defendants under section 395.5 because, as asserted by plaintiffs, the obligations arose from conduct in Santa Barbara County. The opposition disregards the effect of venue in a mixed action where there are tort claims made, where there are individual defendants, and where no defendant is resident in Santa Barbara County. On the totality of the circumstances, evidence, and arguments of the parties, the court will exercise its discretion to award reasonable expenses to moving defendants.

Moving defendants provide only summary information regarding the time expended with respect to this motion. Attorney Jessica R. MacGregor, counsel for moving defendants, states that 10 hours of attorney time at $350 per hour (total, $3,500) was expended in preparing the motion. (MacGregor decl., ¶ 7.) No evidence is presented that this amount of time or rate is unreasonable. Given the issues presented, the arguments anticipated to be made by plaintiffs, and the experience of the court, the court finds that this amount, both in time and in hourly rate, is reasonable as to attorney expenses up through the filing of the motion.

In reply, moving defendants revise their request an award of fees and costs to the total amount of $11,706, comprising the $3,500 in preparing the motion, 22 hours of attorney time in preparing the reply and for preparing for and participating in the September 4 hearing ($7,700), and airfare to Santa Barbara ($506.) (MacGregor supp. decl., ¶ 2.) The evidence of the attorney time is not segregated between work on the reply, anticipated time for the hearing, and travel time. The court does not find this amount to be reasonable. Travel time from San Francisco is the result of counsel determining to appear in person in Santa Barbara rather than by telephone. A personal appearance is certainly welcomed by the court, but a personal appearance in this matter is a matter of convenience for counsel and the moving parties. Travel time is not reasonably necessary to the extent that it would be appropriate to transfer to the plaintiffs the costs of such travel. In the absence of detailed time records, the court will disallow the remainder of the request and award $3,500 in reasonable attorney fees and costs.