Case Number: BC546335    Hearing Date: October 21, 2014    Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

TADAYON vs. WAREHOUSE, etc., et al. (BC546335)

Counsel for defendants/moving parties: Erika Shao (Gordon, etc.)
Counsel for plaintiff/opposing party: Zachary Cantor (Cantor, etc.)

TENTATIVE RULING:
Defendants’ motion to transfer action from Los Angeles County Superior Court to Ventura County Superior Court for all purposes (filed 9/12/14) is granted. Plaintiff to pay any required transfer fees.

DISCUSSION:
Plaintiff alleges he was hired by Defendant Warehouse Discount Center (“WDC”) on January 5, 2004. Plaintiff suffered a workplace injury in 2005 which required surgery. Plaintiff alleges he was told not to report his injury and to not seek a reasonable accommodation. He again suffered a work related injury in 2011 which was related to the previous injury for which he had not been accommodated. Plaintiff alleges he was not only harassed due to his injury but was discriminated against based on his age and other medical conditions for which he needed time off. Plaintiff claims a right to recover on 17 causes of action which include FEHA and various wage and hour Labor Code provisions.

Defendants move pursuant to Govt. Code §12965(b) and CCP §§395(a), 396b, and 397(a) and (c) to transfer this matter to Ventura County on grounds that (1) Defendant WDC’s principal place of business is not and has never been Los Angeles County; (2) the adverse employment action alleged in the complaint did not take place in Los Angeles County; (3) the place of business at which Plaintiff worked for WDC is not located in Los Angeles County; and (4) none of the witnesses and potential witnesses known to date reside in Los Angeles County.

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. CCP § 395.5 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.) Here, the FAC alleges Defendant WDC does business in Ventura County. (FAC ¶2.) However, the other Defendants are all alleged to reside in Los Angeles County. (FAC ¶¶3-6.) The motion shows this allegation is incorrect and, in fact, the individual Defendants live in Thousand Oaks, Moorpark, and Ventura. (White Decl. ¶3; T. Schlender Decl. ¶2; S. Schlender Decl. ¶2; Pregibon Decl. ¶2; Carlton Decl. ¶2.) Here, Defendant relies in part on CCP §395.5. However, Plaintiff is correct that where a complaint contains mixed allegations – FEHA and non-FEHA causes of action – Section 12965(b) controls. (Brown, supra at 487.)

Govt. Code § 12965(b) states that an action for violations of FEHA

“…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.”

While flexibility for Plaintiffs was the legislative intent behind this provision, it has been successfully used by Defendants to secure a change of venue. See Ford Motor Credit Co. v. Sup. Ct. (1996) 50 Cal App 4th 306 (all acts occurring in one county)

This is a case where some acts are alleged to have occurred in two counties, with the majority, and most recent acts, occurring in Ventura County. Here, the FAC alleges Plaintiff was transferred to WDC’s Moorpark location in June 2009. (FAC ¶13.) The majority of the incidents alleged in the complaint occurred while Plaintiff was located in that office. (FAC ¶¶14-30.) The declaration offered by Defendant WDC’s Director of Human Services indicates Plaintiff worked in WDC’s Agoura store (Los Angeles County) from January 5, 2004 until his transfer to Moorpark (Ventura County) on July 1, 2009. (White Decl. ¶5.) Thereafter, he worked in Chatsworth (Los Angeles County) for less than one month in January 2011 and the remainder of his employment – until October 5, 2012 – he was employed in Moorpark. (Id.) She further states that Plaintiff’s termination meeting occurred in Moorpark. (White Decl. ¶6.) White also provides that WDC’s personnel files are maintained in Moorpark as are its corporate offices. (White Decl. ¶¶2, 4.)

Offering no counter-declarations, plaintiff argues venue is proper in Los Angeles County based largely on his pre-Moorpark transfer. (See FAC ¶¶11-14.) Section 12965 provides that venue is proper “in the county in which the aggrieved person would have worked . . . but for the alleged unlawful practice.” Thus, Plaintiff alleges his transfer to Moorpark in Ventura County was an adverse employment action and had be not been discriminated against, he would have remained in Los Angeles County. This ignores his most recent employment at Moorpark and his allegation that at the time of his termination, Plaintiff thought he was going to be transferred to Oxnard – also in Ventura County. (FAC ¶¶28-29.) Giving due weight to plaintiff’s “wide choice” in choice of venue, given the evidence adduced in this motion, the court finds that the defendant has shown that venue is proper in Ventura County.

Unless waived, notice of ruling by moving party.