Case Number: BC616241 Hearing Date: July 20, 2016 Dept: 51

BC616241

Defendant’s Motion to Change Venue

Background

According to the allegations, since May 2006, plaintiff represented third party Gena Rodriguez in a lawsuit against defendant Jason Schwetz. In 2008, the action was tried, and Rodriguez obtained a verdict and judgment for $68,650 plus attorneys’ fees and costs. Plaintiff made unsuccessful collections efforts. On April 9, 2015, plaintiff discovered that Rodriguez and Schwetz entered into a purported settlement waiving and releasing all claims including attorneys’ fees. No consideration was exchanged, and Rodriguez and Schwetz are friends again.

On April 15, 2016, plaintiff filed the operative first amended complaint for (1) intentional interference with contract, (2) intentional interference with prospective economic relations, (3) intentional interference with prospective economic relations, (4) enforcement of attorney lien, and (5) declaratory relief.

On June 6, 2015, defendant filed the instant motion to change venue to Ventura County on the ground that he resides there.

The Court has considered the moving and opposition papers, and rules as follows. [No reply was filed.]

Standard

“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.” CCP § 396b(a).
“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.” CCP § 395(a).

Plaintiff is entitled to the presumption that he has brought the action in a proper county, and the burden to secure a change of venue is on the defendant. J. C. Millett Co. v. Latchford-Marble Glass Co. (1956) 144 Cal.App.2d 838. When plaintiff seeks to lay venue in place other than that of defendant’s residence he must clearly show that action is triable outside county of defendant’s residence. Hollopeter v. Rogers (1962) 199 Cal.App.2d 814. “… [A]n action based upon injury to person or personal property which is not a physical injury, such as libel, malicious prosecution and false imprisonment, is triable solely at the defendant’s residence.” Johnson v. Superior Court of Fresno County (1965) 232 Cal.App.2d 212, 218.
Analysis
Here, there is no dispute that defendant resides in Ventura County. Schwetz Decl. ¶ 3; FAC ¶ 2. Nor is there any dispute that he had not relationship with the plaintiff in this action. Defendant has established a prima facie basis for the transfer; only a sufficient counter-showing by plaintiff can defeat the requested relief.

In opposition, plaintiff relies on section 395’s provisions governing actions for breach of contract. Plaintiff, however, alleges no contract claim against defendant, and there was none. Additionally, plaintiff offers no evidence of defendant’s alleged contract with Rodriguez to establish its existence, its terms, place of execution, or place of performance.

Plaintiff also relies on its former client, third party Rodriguez’s having executed a contingency fee agreement with plaintiff at plaintiff’s office in Los Angeles County. Barnes Decl. ¶ 3. Even if this action were based on contract, plaintiff’s contract with Rodriguez would be irrelevant as to any factors governing venue on contract actions.

Accordingly, plaintiff fails to demonstrate an exception to the general rule that venue is proper where the defendant resides, and defendant met his burden.

The motion is GRANTED. This action is transferred to Ventura Superior Court; any fees for transfer are to be paid by plaintiff.

Defendant to prepare, serve and lodge an appropriate order and give notice.