Case Number: BC528771    Hearing Date: August 22, 2014    Dept: 40

DEREK COLLINS v. PYRAMID DESIGN AND MANUFACTURING
MOTION FOR CHANGE OF VENUE

Case No: BC528771
Date: August 22, 2014
Tentative Ruling: On June 23, 2014, the Court announced its tentative ruling, granting the motion for change of venue to Orange County. At the request of the parties, the motion was continued to August 22, 2014 so the parties could continue to seek resolution of the case, with the understanding that any opposition to the motion was to be filed by August 4, 2014. No opposition has been filed. (No notice of settlement has been filed.)

Defendant seeks an order transferring this action to Orange County. The Court grants Defendant’s request for judicial notice. The original complaint, which was the pleading on file when this motion was filed by Defendant, alleged that all of the unlawful conduct occurred in Orange County. (RJN Exhibit A ¶8) The original complaint asserts that Plaintiff was a sales representative for Defendant and that Defendant began asking Plaintiff questions about whether he had HIV or aids and harassing him about his medical condition. (RJN Exhibit A ¶11) The complaint alleged Disability Discrimination; Failure to Engage in the Interactive Process; Failure to Provide Reasonable Accommodation; Workplace Harassment; Wrongful Discharge;Unlawfully withholding Wages;Failure to Pay Wages as the Regular Rate;Failure to Pay Overtime; and Unfair Competition.

A motion to change venue must be supported by competent evidence. (Tutor-Saliba-Perini Joint Venture v. Sup. Ct. (1991) 233 Cal. App. 3d 736, 744.) ¿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, 481.) “Venue is determined on the basis of the complaint as it stands at the time the motion to change is made, and the plaintiff is not permitted to make a subsequent election of theories by proposed amendments thereto (Warren v. Ritter, 61 Cal.App.2d 403 [142 P.2d 948]) or affidavits in opposition to the motion ( Archer v. Superior Court, 202 Cal.App.2d 417, 420 [21 Cal.Rptr. 48]).” Haurat v. Superior Court (1966) 241 Cal.App.2d 330. “Where a defendant has made a proper showing of nonresidence, the burden is on the plaintiff to show that the case comes clearly within one of the statutory exceptions to the general rule that actions are triable in the place of the defendant’s residence. ( Goossen v. Clifton, supra; Hollopeter v. Rogers (1962) 199 Cal.App.2d 814, 817 [19 Cal.Rptr. 25]; Abbey v. Schaefer (1952) 108 Cal.App.2d 554, 556 [239 P.2d 44].) The plaintiffs did not meet this burden. . . . What plaintiffs are in effect seeking to do by way of affidavit is to amend the third and fourth counts in order to base them upon the oral agreement of April 26, using the contract of January 23 for evidentiary purposes only. This cannot be done, either by amendment to the complaint after the motion for change of venue has been made or by counteraffidavit on the hearing of the motion for change of venue. ( Sloan v. Court Hotel (1945) 72 Cal.App.2d 308, 313-314 [164 P.2d 516]; 51 Cal.Jur.2d 215; 1 Witkin, Cal. Procedure, § 260, pp. 781-782.)” Archer v. Superior Court (1962) 202 Cal.App.2d 417.

The operative complaint at the time the motion for change of venue was made is the initial complaint filed August 22, 2014. No opposition was filed and no evidence produced by Plaintiff although the Court granted Plaintiff leave to do so. The Court notes that the first amended complaint filed June 12, 2014 alleges Defendant does business in Irvine but alleges Plaintiff’s job for Defendant was as a sales representative whose duties included conducting sales calls and visiting both clients and prospects in Los Angeles County. The Court further notes that the FAC alleges that Plaintiff would have continued to do work for Plaintiff in Los Angeles County had not the improper and illegal conduct occurred.(FAC ¶¶2, 9) However, the FAC is not before the Court on this motion and is not evidence in opposition to the motion for change of venue. Therefore, the fact that Plaintiff has filed an inconsistent pleading which recites the language of the Gov. Code Section 12965(b) is not under consideration by the Court on this motion. Brown v. Superior Court of Alameda County (1984) 37 Cal.3d 477, 481; Haurat v. Superior Court (1966) 241 Cal.App.2d 330; Archer v. Superior Court (1962) 202 Cal.App.2d 417.

Moving parties must negate all possible bases for proper venue (Buran Equip. Co. v. Sup. Ct. (1987) 190 Cal. App. 3d 1662, 1666.) ¿For venue purposes, actions are classified as local or transitory. To determine whether an action is local or transitory, the court looks to the ¿main relief¿ sought. Where the main relief sought is personal, the action is transitory. Where the main relief relates to rights in real property, the action is local. (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 424, pp.1255 1256.) Here, the action is transitory as Plaintiff’s allegations relate to discrimination and wage and hour violations.

A motion to change venue must be supported by competent evidence. (Tutor-Saliba-Perini Joint Venture v. Sup. Ct. (1991) 233 Cal. App. 3d 736, 744.) ¿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, 481.) Moving parties must negate all possible bases for proper venue (Buran Equip. Co. v. Sup. Ct. (1987) 190 Cal. App. 3d 1662, 1666.) ¿For venue purposes, actions are classified as local or transitory. To determine whether an action is local or transitory, the court looks to the ¿main relief¿ sought. Where the main relief sought is personal, the action is transitory. Where the main relief relates to rights in real property, the action is local. (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 424, pp.1255 1256.) Here, the action is transitory as Plaintiff’s allegations relate to discrimination and wage and hour violations.

¿Venue of transitory actions against corporations is governed by section 395.5. That section provides, ¿A corporation or association may be sued in the county [1] where the contract is made or [2] is to be performed, or [3] where the obligation or liability arises, or [4] the breach occurs; or [5] 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.¿ Although the section appears to be addressing actions sounding in contract, it has long been settled that it governs actions sounding in tort as well.” (Mission Imports v. Superior Court of San Francisco (1982) 31 Cal.3d 921, 927-928.)

Gov. Code Section 12965(b) also governs an action for violations of FEHA, which

“…may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or 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, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.”

Defendant also addresses the UCL claim, arguing that where a “mixed action” is asserted, that is Plaintiff asserts causes of action to which different venue rules apply, the Defendant may change venue if such a change is permitted on one cause of action. (See Brown v. Superior Court (1984) 37 Cal 3d 477, 488; Gallin v. Sup. Ct. (1991) 230 Cal.App.3d 541, 544.) This is well taken.

Defendant offers the declaration of Gary Hoff, the President of Pyramid Design. (Hoff Decl. ¶1.) Mr. Hoff indicates Pyramid is a California corporation with its primary place of business in Orange County. (Hoff Decl. ¶2, Exh. C.) He indicates that during Plaintiff’s employment, Pyramid was located in Huntington Beach and is now located in Irvine. (Hoff Decl. ¶6.) Mr. Hoff also indicates he personally terminated Plaintiff and the Separation Agreement identified in the complaint was negotiated, signed, and entered into at Pyramid’s Huntington Beach office in Orange County. (Hoff Decl. ¶¶7-8.)

Mr. Hoff declares Pyramid’s policy and practice is that all personnel files be maintained at the main office which was previously located in Huntington Beach but is now located in Irvine. (Hoff Decl. ¶5.) Mr. Hoff indicates he is personally aware that Plaintiff’s personnel file is located in Irvine and Mr. Collins worked out of the Huntington Beach office during his employment. (Hoff Decl. ¶6.) He also indicates that is where Plaintiff was terminated and other individuals involved in the decision to terminate him are located in Orange County. (Hoff Decl. ¶¶8-9.) As noted above, the original complaint alleged that all of the unlawful practices occurred in Orange County. (See RJN Exh. A ¶8.)

Lastly, Defendant relies on CCP §397(c). “The trial court in the county where the action is filed may change venue to another county ‘[w]hen the convenience of witnesses and the ends of justice would be promoted by the change….'” (In re Hadley B. (2007) 148 Cal. App. 4th 1041, 1049 (quoting CCP §397).) However, only the convenience of nonparty witnesses is considered, and not of parties or counsel. (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.) Courts cannot consider the convenience of witnesses who are employees of a party, except “when the employees are called as witnesses by the adverse party rather than on behalf of their employer.” (Lieberman v. Sup. Ct. (1987) 194 Cal.App.3d 396, 401-02.) Defendant has not provided sufficient evidence through the Hoff Declaration to sustain its burden on forum non conveniens grounds.

Therefore, the Defendant’s motion for change of venue is granted as the Defendant’s business address, the location where the alleged FEHA violations occurred and the location where the alleged wage and hour violations occurred were all located in Orange County.