Case Number: 19STCV34674 Hearing Date: March 10, 2020 Dept: 19

Defendant Masoumeh Khayat Islami’s Motion for Change of Venue to the Orange County Superior Court is hereby GRANTED.

Defendant’s Request for Award of Attorneys’ Fees and Costs is GRANTED. Counsel for Plaintiff to pay Defendant’s reasonable attorney’s fees of $3,000.00 and any costs and fees for the transfer of this action. within 5 days of receipt of this ruling.

Plaintiff’s request for attorney’s fees is DENIED.

The Court enters Defendant’s proposed order.

Counsel for Defendant to give notice.

STATEMENT OF THE CASE

This case arises in breach of contract. In the Complaint, filed 09/30/2019, Plaintiff F. Bari Nejadpour, Assignee of L.A. Law, Inc. (“Plaintiff”) alleges that Defendant Masoumeh Khayat Islami (“Defendant”) failed to pay outstanding amounts due under the attorney client retainer agreement with regards to various cases in Orange County. The Complaint alleges three counts for breach of contract. None of the contracts are attached to the Complaint.

On 12/24/2019, Defendant filed the instant Motion for Change of Venue, alleging that Defendant resides in Orange County and that the contracts were executed and performed in Orange County.

On 02/11/2020, Plaintiff filed a First Amended Complaint (“FAC”) that attaches the contracts at issue. The FAC changes the Plaintiff’s name to L.A. Law Inc., APC. (also, “Plaintiff”).

GROUNDS FOR MOTION

Defendant Masoumeh Khayat Islami moves for an order pursuant to Code of Civil Procedure section 397 to transfer the venue of this action to the Superior Court of the State of California in and for the County of Orange. The motion is made on the ground that the court designated in the complainant is not the proper court.

Defendant moves for an award of reasonable attorney’s fees incurred in making the motion to transfer, in the amount of $3,000.00 together with any costs and expenses.

DISCUSSION

K.R.L. Partnership v. Sup. Ct. (2004) 120 Cal. App. 4th 490, 496-97, describes the basic framework for determining proper venue:

The term “venue” denotes the particular county within the state where a case is to be heard. [citation] Which county constitutes the proper venue in a particular case is determined according to the venue statutes—section 392 et seq. In applying these statutes to determine the county (or counties) where venue is proper, the courts generally look to the main relief sought, as determined from the complaint as it stands at the time of the motion for change of venue. [citation] Generally (but with numerous exceptions), when the main relief sought in a case does not relate to rights in real property, “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.” (§ 395, subd. (a).) When a case is founded on a contractual obligation, venue is also proper “where the contract was in fact entered into.”

(K.R.L. Partnership, supra, 120 Cal.App.4th at 496–497.)

“If a case is filed in a county that is not the proper venue under section 395, the defendant may move to transfer the case to a proper venue.” (Id. at 497.)

Timeliness

As an initial matter, a motion to change venue must be brought “within the time otherwise allowed to respond to the complaint.” (Code Civ. Proc. §396b(a).) Here, the Complaint was filed 09/30/2019 and the proof of service indicates it was personally served on Defendant on 10/30/2019. The instant motion was filed on 12/24/2019. The Opposition does not object to the timeliness of the instant motion. The Court finds that the instant motion is timely. Any objections to timeliness have been waived.

Operative Complaint for Purposes of Motion

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Sup. Ct. (1984) 37 Cal. 3d 477, 482; see also, K.R.L. Partnership, supra, 120 Cal. App. 4th at 496-97 [“In applying … statutes to determine the county (or counties) where venue is proper, the courts generally look to the main relief sought, as determined from the complaint as it stands at the time of the motion for change of venue.”].)

Again, the Complaint was filed on 09/30/2019. The instant motion was filed on 12/24/2019. Plaintiff filed the First Amended Complaint (“FAC”) on 02/11/2020.

The Court considers the Complaint, not the First Amended Complaint, for purposes of this motion, as it was the operative pleading at the time the motion was filed.

Proper Venue

As described above, venue is generally proper where one or more defendant resides, or where a contract was entered into. (K.R.L. Partnership, supra, 120 Cal.App.4th at 496–497.) Code of Civil Procedure section 395(a) provides, in pertinent part: “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.” (Code Civ. Proc., § 395(a).) The statute further provides: “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(a).)

Further, in contracts for services intended for personal, family, or household use, venue is proper in the superior court where the contract was signed, where the buyer resided at the time of contract, or where the buyer resides at the commencement of the action. (Code Civ. Proc., §395(b) [“Subject to the power of the court to transfer actions or proceedings as provided in this title, in an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use, . . . the superior court in the county where the buyer or lessee in fact signed the contract, where the buyer or lessee resided at the time the contract was entered into, or where the buyer or lessee resides at the commencement of the action is the proper court for the trial of the action…”].)

A defendant challenging venue has the burden to show facts justifying transfer of venue. (Mission Imports, Inc. v. Sup. Ct. (1982) 31 Cal.3d 921, 929.) Moving parties must negate all possible bases for proper venue (Buran Equip. Co. v. Sup. Ct. (1987) 190 Cal. App. 3d 1662, 1666.)

Here, the Complaint alleges that venue is proper in Los Angeles County because (1) Defendant entered into the contract here, and (2) the contract was to be performed here. (See Compl. ¶ 7.)

Defendant argues that the Complaint is incorrect with regards to the venue allegations because (1) the contracts at issue were signed in Orange County, (2) the contracts at issue were to be performed in Orange County with regard to pending litigation in those courts, and (3) Defendant has resided, and continues to reside in Orange County.

Plaintiff in Opposition concedes that the contracts at issue were signed in Orange County and were to be performed there, and concedes that Defendant resides in Orange County.

The Court considers whether Defendant has met her burden in establishing that venue is improper in Los Angeles County. Defendant has set forth evidence that Defendant has resided in and continues to reside in Orange County, California. (Islami Decl. ¶ 2.) Defendant has set forth evidence that Plaintiff was hired by Defendant in Orange County to represent Defendant in civil matters before the Orange County Superior Court. (Id. ¶3.) Defendant declares that Plaintiff never represented her in Los Angeles County. (Id. ¶ 7.) Defendant avers that she never traveled to Plaintiff’s office in Los Angeles County. (Id. ¶¶ 5, 8.) Defendant declares, and sets forth evidence to show, that the parties met in Orange County in Newport Beach to sign the agreement. (Id. ¶¶5, 6, Ex. 1.) Based on the evidence presented, the Court finds that Defendant has met her burden of showing that venue is not proper in Los Angeles County, and that venue is instead proper in Orange County.

The Court further considers whether Plaintiff’s arguments indicate that Los Angeles is the proper venue. As stated above, “Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown, supra, 37 Cal. 3d at 482.) The Complaint does not allege a contractual basis for venue. (See Compl. ¶ 7.) Further, the Complaint does not append any of the contracts at issue. Thus, Plaintiff has failed to establish that venue is proper in Los Angeles based on a contractual provision. The Court declines to further analyze Plaintiff’s forum selection clause arguments, as they to not apply to the initial Complaint.

On the other hand, the Court notes that Plaintiff amended the Complaint on 02/11/2020 in order to allege venue based on the contractual provision. (See FAC ¶ 7.) The FAC appends the contracts at issue. Counsel for Defendant points out on Reply that the venue allegations in the FAC were completely changed from those alleged in the Complaint. (Reply Gulino Decl. ¶3.) Counsel for Defendant declares that he did not receive the FAC until it was emailed to him on 02/25/2020. (Id.) The Court agrees that it is improper for Plaintiff to attempt to defeat Defendant’s motion by filing an amended complaint that is significantly changed to allege a new basis for venue in Los Angeles.

In sum, the Court concludes that Defendant has met her burden in showing that venue is not proper in Los Angeles County because Defendant resides in Orange County and the contracts at issue were entered into, and to be performed, in Orange County. The Court finds that Los Angeles County is not the proper venue and this action should have been filed in Orange County. Accordingly, Defendant’s motion to transfer venue is GRANTED. The action is ordered transferred to Orange County Superior Court.

Attorney’s Fees and Costs

“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(b).)

“If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expenses and attorney’s fees awarded to the defendant pursuant to Section 396b, shall be paid by the plaintiff before the transfer is made.” (Code Civ. Proc., §399(a).)

The original Complaint was filed on October 11, 2019. The Complaint failed to allege a basis for venue in Los Angeles. (See Id. ¶ 9.) Defendant attempted to meet and confer with Plaintiff regarding venue. (Gulino Decl. ¶¶6, 7, Ex. 2.) However, Plaintiff rejected the request to change venue. (Gulino Decl. ¶ 8, Ex. 3.) Thereafter, Defendant filed the instant motion on December 24, 2019. In addition, Defendant addressed the motion to change of venue to Orange County in her Case Management Statement filed on January 28, 2020. Plaintiff filed an opposition to the motion on February 24, 2020.

The evidence presented shows that Defendant made the instant motion in good faith based on the law, facts, and pleadings at the time. Defendant’s position with regard to venue in Orange County was reasonable. Plaintiff rejected meet and confer attempts, and instead, improperly filed an amended complaint on February 28, 2020, just several days after filing the opposition to the instant motion. At the Case Management Conference on February 10, 2020, Plaintiff failed to mention that he intended on filing a First Amended Complaint to address the change of venue issue. Based on the facts and evidence before this Court, the Court finds that sanctions against Plaintiff’s counsel, F. Bari Nejadpour, Esq. are warranted under Code of Civil Procedure section 396b(b).

The Court considers Defendant’s request for monetary sanctions in the amount of $3,000.00. Counsel for Defendant declares his billable rate is $400 per hour and he spent 2- ½ hours drafting the instant motion. Counsel declares he will spend 5 hours to review the opposition, prepare a reply, and appear at hearing. (Gulino Decl. ¶11.) The Court finds the hourly rate and total fees of $3,000 are reasonable. The Court considers the tasks performed, the experience and background of counsel, the prevailing hourly rates in the Los Angeles legal market, and the nature of the case. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132).

The Court orders Plaintiff’s counsel, F. Bari Nejadpour, Esq., to pay monetary sanctions in the amount of $3,000 and the transfer fee to Defendant through counsel of record within 5 court days

.