Case Number: BC543332    Hearing Date: October 31, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

ALMA ROJAS,
Plaintiff,
vs.

WINCO FOODS, INC., WINCO FOODS, LLC, JOEL MANUEL.; ET AL.
Defendants. Case No.: BC543332

Hearing Date: October 31, 2014

[TENTATIVE] ORDER RE DEFENDANT WINCO FOODS, LLC MOTION TO CHANGE VENUE OF ACTION

Plaintiff’s entire Complaint is STRICKEN by the Court sua sponte. Plaintiff has 10 days to file a First Amended Complaint containing allegations that: (1) establish venue is proper in Los Angeles County; (2) indicate the specific manner and location of Plaintiff’s injury; and (3) are drafted in conformity with California Rules of Court, Rules 2.111 and 2.112.
The motion of defendant WinCo Foods, LLC to change the venue of this action to San Bernardino County is CONTINUED to December 15, 2014 at 1:30 p.m., pending the filing of Plaintiff’s First Amended Complaint.
Moving defendant WinCo Foods, LLC is ordered to give notice.

I. BACKGROUND

This action apparently stems from a customer’s (Alma Rojas, hereinafter “Plaintiff”) alleged slip-and-fall that took place on or about April 24, 2012. (Complaint ¶ 9.) However, the facts of this case are not completely clear in light of deficiencies within the Complaint, as further discussed below.
At the outset, it must be noted that Plaintiff’s Complaint, filed nearly two years later on April 22, 2014, is unacceptably vague and replete with apparently erroneous information. The Complaint’s vague and inconsistent allegations are enough to lead this Court to believe that this case was not meant to have been filed in Los Angeles County in the first place.

First, the Complaint is incorrectly titled as being for the Orange County Superior Court. This mistake would be dismissed as a harmless typographical error, but for the subsequent averments regarding defendants conducting their business in Orange County. The Complaint does not specifically allege that anything took place in Los Angeles County. Nor does the Complaint allege that any of the named defendants reside in or have any relationship to Los Angeles County.

Second, the Complaint alleges that Plaintiff was injured at a store in California, but the Complaint does not actually specify where in California the injury occurred. (See Complaint ¶6.) Repeated references to the site of the incident are made only as the “subject location.” (See, e.g., Complaint ¶¶ 6-9.) However, the Civil Case Cover Sheet Addendum and Statement of Location, completed by Plaintiff’s counsel under penalty of perjury, states that the accident occurred on the westbound I-10 freeway in Los Angeles County.

Third, the Complaint obliquely references Plaintiff’s injury, but is silent on the manner of injury. There is reference to a wet floor at Paragraph 9, which leads the Court to assume that Plaintiff’s injury may have been due to a slip and fall.

In any event, defendants did not timely answer Plaintiff’s Complaint within 30 days of service. In lieu of a response, defendant WinCo Foods, LLC (hereinafter “WinCo Foods”) has moved this Court for an order to change the venue of this action to San Bernardino County, and for sanctions in the amount of $1,016.00. Said motion was filed on August 11, 2014, beyond the 30 day period for response.

In its motion, WinCo Foods asserts that the incident took place at its store in Fontana, California, situated in San Bernardino County. (Def’s Motion at pp. 2-3.) There appears to be some disagreement as to precisely when the incident took place, as WinCo Foods contends that the incident occurred on April 23, 2012. (See Def’s Motion at pp. 2-3 and Timmons Decl. ¶ 2.) WinCo Foods further asserts that it is headquartered in Boise, Idaho, and does business throughout the California. (Id.) Nowhere in the motion and supporting declaration does WinCo Foods specify its designated principal place of business within California.

As for the other named co-defendants (WinCo Foods, Inc. and Joel Manuel), the moving party (i.e., WinCo Foods, LLC) seems to suggest that they were incorrectly named by Plaintiff. (Def’s Motion at p. 4.) However, these remarks are not made as part of any supporting declaration.

II. ANALYSIS

A. Motion to Change Venue

Where venue is improper, the Court must, on timely motion, order that an action be transferred to the proper venue. (CCP §§ 396b and 397, subd. (a).) However, a motion to change venue must be brought within 30 days of service. (CCP § 396b.) If a defendant does not move to change venue within 30 days of service, the Court may deem the defendant’s objection to the improper venue waived. (Id.) In the instant matter, service was made on defendants on June 26, 2014. WinCo Foods brought the instant motion on July 11, 2014. WinCo Foods’ motion is therefore technically untimely.

Nevertheless, this Court finds that WinCo Foods “did not intend to waive their venue rights or invoke [this Court’s] jurisdiction in the underlying action, and that they have proceeded in good faith and with due diligence.” (See Van Gaalen v. Superior Court (1978) 80 Cal.App.3d 371, 379.) This Court may therefore entertain and ultimately grant a motion for change of venue notwithstanding the untimely motion. Moreover, this approach is entirely reasonable in light of Plaintiff’s failure to oppose WinCo Foods’ motion.

1. Proper Venue in Personal Injury Matters

Actions arising out of personal injury may be brought in (a) the county in which the plaintiff’s injury occurred, or (b) in any county in which some of the defendants reside. (Code Civ. Proc. §395, subd. (a).) Where the moving party challenges the designated venue as improper, the moving party bears the burden of showing the plaintiff’s venue selection is “not proper under any of the statutory grounds.” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 896.) In other words, “[w]hen parties to an action make a motion for change of venue, it is incumbent upon them to make a complete showing requiring the change.” (Sequoia Pine Mills, Inc. v. Superior Court, 258 Cal.App.2d 65, 69.) Moreover, “the presumption is that the defendants are residents of the county wherein the action is commenced.” (Id. at 67-68.)

The burden therefore falls on WinCo Foods to demonstrate that: (1) Plaintiff’s injury did not occur in Los Angeles County; and (2) none of the named defendants are residents of Los Angeles County. In its supporting declaration, WinCo Foods submits evidence that the alleged incident took place in San Bernardino County (Timmons Decl. at ¶ 2). However, the declaration fails to establish that WinCo Foods and its co-defendants are not “residents” of Los Angeles County.

2. Residency of Defendant and Moving Party WinCo Foods, LLC

Corporate defendants are said to “reside” in the county of their principal place of business. (Code Civ. Proc. § 395.5.) The submitted declaration indicates that WinCo Foods is a limited liability company headquartered in Boise, Idaho. (Timmons Decl. at ¶ 2.) This would suggest that WinCo Foods is a foreign corporation. To be qualified to do business in California, foreign corporate entities are required to designate a principal office within California. (Corp. Code § 2105, subd. (a).) Otherwise, the corporate defendant may be sued in any county. (See Easton v. Superior Court (1970) 12 Cal.App.3d 243, 246-47.)

In its motion, WinCo Foods asserts that it is “authorized to conduct business in the State of California.” (Def’s Motion at p. 2.) It should be noted that this assertion is not supported by a declaration. More importantly, no mention is made of any designated principal office in California. Absent an averment regarding the company’s principal office in California, the presumption of WinCo Foods’ residence within Los Angeles County applies.

3. Residence of Other Named Defendants

Once again, venue is proper if “some of the defendants” reside in Los Angeles County. (See Code Civ. Proc. § 395, subd. (a).) Accordingly, in addition to its own place of residence, WinCo Foods must also show that none of the other named defendants reside in Los Angeles County. Necessary averments regarding residence of other defendants, which may or may not be affirmatively known to the declarant, may be properly made on the basis of information and belief. (Brown v. Happy Valley Fruit Growers (1929) 206 Cal. 515, 520-21.) Nevertheless, no such averments have been made as part of a declaration made in support of WinCo Foods’ motion to change venue.
For this reason, the presumption regarding the other defendants’ residency within Los Angeles County applies.

For lack of the necessary averments regarding defendants’ residencies (corporate defendants’ principal places of business within California), this Court concludes that defendant WinCo Foods’ moving papers are insufficient to demonstrate that venue is improper in Los Angeles County.

However, because this Court is moving sua sponte to strike Plaintiff’s complaint in the entirety with leave to amend, a hearing on this motion is continued to December 15, 2014. Once Plaintiff files its First Amended Complaint, WinCo Foods may file an amended motion in accordance with Code of Civil Procedure section 1005.

WinCo Foods’ alternative argument that transferring this case would serve the “interests of justice” and “promote the efficient resolution of all claims between the parties” will not be addressed at this time.

B. Sua Sponte Motion to Strike Plaintiff’s Complaint

Pursuant to Code of Civil Procedure section 436, subdivision (b), this Court “may… at any time in its discretion, and upon terms it deems proper: …Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” An entire pleading may be stricken “due to the improprieties in its form or in the procedures pursuant to which it was filed.” (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) The Complaint at issue here is appallingly replete with such improprieties.

Based on her Complaint allegations, it is not clear whether this lawsuit has any connection to Los Angeles County. The Complaint itself is incorrectly titled as being for Orange County, not Los Angeles County. (See Cal. Rule of Ct., Rule 2.111.) Moreover, Plaintiff alleges that defendants are conducting business in Orange County, yet she fails to indicate specifically where in California her injury occurred.

At the same time, Plaintiff states in the attached Civil Case Cover Sheet that this is “Auto Tort.” Elsewhere in the Civil Case Cover Sheet Addendum and Statement of Location, Plaintiff indicates that this action took place on the westbound Interstate 10 in Los Angeles.

Although this Court knows of no statutory requirement that plaintiffs must affirmatively allege facts establishing proper venue as part of a complaint, this Court finds that the vague, ambiguous and equivocal nature of Plaintiff’s Complaint is such that it is unclear whether Plaintiff intended to file this action in Los Angeles County in the first place.

Plaintiff has ten (10) days to file a First Amended Complaint. The amended complaint shall contain allegations reflecting a relationship to Los Angeles County. The amended complaint shall indicate the specific location of Plaintiff’s alleged injury. The amended Complaint shall also comply with California Rules of Court, Rules 2.111 and 2.112.

III. CONCLUSION

Plaintiff’s entire Complaint is STRICKEN by the Court sua sponte. Plaintiff has 10 days to file a First Amended Complaint containing allegations that: (1) establish venue is proper in Los Angeles County; (2) indicate the specific manner and location of Plaintiff’s injury; and (3) are drafted in conformity with California Rules of Court, Rules 2.111 and 2.112.
The motion of defendant WinCo Foods, LLC to change the venue of this action to San Bernardino County is CONTINUED to December 15, 2014 at 1:30 p.m., pending the filing of Plaintiff’s First Amended Complaint.

Moving defendant WinCo Foods, LLC is ordered to give notice.

DATED: October 31, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court