Case Name: Bernstein et al v Cal State Home Loans et al.
Case Number: 1-07-CV-096935

Defendant Monica Rabena’s Motion to Transfer Case to San Joaquin County is DENIED
This action was filed in 2007. Plaintiffs filed their Fourth Amended Complaint on October 23, 2014. Defendant Rabena filed answers to the first 3 complaints without seeking a change of venue based upon the theory plaintiffs filed in the wrong courthouse. Such a motion is supposed to be brought at the outset of litigation, not 8 years into the lawsuit. As stated in Weil & Brown, Civil Procedure Before Trial (2014) §3:564, “A motion for transfer on the ground that the action was filed in an ‘improper’ court must be made within the time permitted to plead; i.e., 30 days after service, unless extended by stipulation or court order. [CCP §396b.]” The motion can also be made at the time of filing an answer or demurrer [CCP §396b.]. A common sense interpretation of the statute compels the conclusion that if a defendant believes venue is in the wrong court, that defendant needs to argue that theory at the earliest pleading stage ie: 30 days after service of the complaint or when filing an initial answer or demurrer. In this case, the litigation has been ongoing for years and a trial setting conference is scheduled to take place next month. It is simply too late for Defendant Rabena to argue this lawsuit, filed in 2007, is in the wrong courthouse. Her motion is untimely and DENIED. Monetary Sanctions are DENIED.

Defendant Rabena’s Request for Judicial Notice is DENIED as to all requests but the date of filing of the instant Motion to Transfer. Moving party did not include filed endorsed copies of the Fourth Amended Complaint or Third Amended Complaint (just alleged attachments to same which the Court cannot consider as they are not authenticated and are hearsay). The Court may take judicial notice of the existence of court records, but the truth of the matters asserted in those records is not subject to judicial notice. Sosinsky v Grant (1992) 6 Cal App 4th 1548. Requests 3 and 4 are not properly subject to judicial notice.

Defendant Rabena also seeks a change of venue based on the convenience of witnesses and serving the ends of justice CCP ( c ). However, the declaration she submitted does not sufficiently articulate how moving this case in San Jaoquin serves the convenience of witnesses or the ends of justice. Her motion is DENIED on this ground as well.