Case Number: BC574446 Hearing Date: July 21, 2016 Dept: 1

#1 – Santa Monica Petroleum v. Daly, et al. (BC 574 446)

Defendants Carson J. Daly, Ocean Way Real Estate Trust, Kelly White Living Trust, Bryan F. Kelly, Emily C. White, and Richard Caruso and Celia Sweet Shire (as trustees of the Ocean Way Real Estate Trust) filed a motion to transfer the case from the Central Judicial District to the West Judicial District on June 17, 2016. Defendants argue that a transfer is appropriate because the action arises from claims related to rights and interests in real property located in the City of Santa Monica, and therefore the convenience of witnesses and the ends of justice will be promoted by the transfer to a courthouse two miles from the subject properties rather than the current courthouse more than 20 miles away. Defendants also argue this transfer would also promote convenience to the jury, as Defendants anticipate requesting a jury viewing of the at-issue property line. Defendants argue the motion is timely, because Defendants are only now filing their Answer, after two successful demurrers.

Plaintiff Santa Monica Petroleum opposes the motion, arguing it is a waste of the court’s time and resources because Defendants only filed this motion so that the two parties living in Santa Monica, Bryan F. Kelly and Emily C. White, can avoid driving to downtown Los Angeles to attend trial, yet convenience to the parties is expressly not a factor for this court’s consideration pursuant to case law authority. Even the moving papers admit there are no non-party witnesses expected to testify at trial and thus there is no basis for this motion and it should be denied. In conjunction with its opposition, Plaintiff objects to ¶ 7 of the Declaration of Bryan F. Kelly. The court sustains this objection.

Defendants reply that Plaintiff failed to oppose the argument that the ends of justice would be served by a transfer, and therefore concedes it. The Santa Monica courthouse is only two miles away from the subject property line and therefore a transfer would enable efficient and prompt jury viewing of that property line. The court should disregard Plaintiff’s opposition argument – based on CCP § 397(c), which applies instead to motions to transfer from one county to another rather than within a county – that convenience to party witnesses should not be considered. Plaintiff cites no authority that this statute applies to the instant question, nor did Defendants find any. Nearly all the parties and witnesses are located near the Santa Monica courthouse, which Plaintiff does not and cannot dispute. For these reasons, a transfer is warranted.

Plaintiff Santa Monica Petroleum had filed this action on March 3, 2015 against Carson J. Daly; Ocean Way Real Estate Trust; Kelly White Living Trust; Bryan F. Kelly; and Emily C. White for trespass, private nuisance, breach of oral contract, and for declaratory relief. (Richard Caruso and Celia Sweet Shire were later added as defendants, as trustees of the Ocean Way Real Estate Trust.) Plaintiff owns the real property located at 14791 Pacific Coast Highway in Santa Monica. Daly owned the real property located at 101 Ocean Way in Santa Monica (abutting Plaintiff’s property), first individually until January 2006 and then in his capacity as trustee of the Ocean Way Real Estate Trust when he transferred the property into the trust. Plaintiff alleges those defendants constructed a fence that impermissibly encroaches upon Plaintiff’s property. Although they agreed in September 2014 to remove the fence, they have failed to do so. The property was sold to Kelly White Living Trust in October 2014. Plaintiff notified defendants Kelly, White, and the Kelly White Trust of the encroachment in December 2014, but these defendants also refuse to remove the fence. Plaintiff seeks damages and a declaration that the fence encroaches and must be removed. After demurrer was sustained to the third cause of action, Plaintiff filed a First Amended Complaint on September 3, 2015; thereafter, on May 18, 2016 demurrer to that cause of action was sustained without leave to amend. On June 17, 2016 Bryan F. Kelly, as trustee of the Kelly White Living Trust, cross-complained against Santa Monica Petroleum and Farzan Ghadooshahy for private nuisance and declaratory relief. The case is assigned to Department 46, where numerous discovery motions are currently set for hearing in September 2016 and February 2017.

LASC Local Rule 2.3(b)(2) authorizes this court to transfer non-personal-injury civil cases from one judicial district to another, including when the case was filed in an improper district, or for the convenience of witnesses or to promote the ends of justice. LASC Local Rule 2.3(b)(2).

Defendants argue a transfer is necessary for the convenience of witnesses or to promote the ends of justice. Just as in motions for change of proper venue, a defendant acting under the authority of LASC Local Rule 2.3(b)(2) should bear the burden of proof if he/she seeks a district transfer out of a presumptively and actually correct forum for the convenience of witnesses or to promote the ends of justice. See Lieberman v. Superior Court (1987) 194 Cal. App. 3d 396, 401. That burden of proof should, moreover, call for affidavits that contain more than generalities and conclusions. See Hamilton v Superior Court (1974) 37 Cal. App. 3d 418, 424. Such affidavits or declarations, like those for change of venue under CCP § 397(c), ought to show the name of each witness, the expected testimony of each witness, and facts showing why the attendance of said witnesses at trial would be inconvenient or why the ends of justice would be served by a transfer. See Stute v. Burinda (1981) 123 Cal. App. 3d Supp. 11, 17. Convenience to non-party witnesses alone should be the key to the success of the motion, and not the convenience of parties or employees of parties. Id.

Although Defendants’ reply argues there is no authority to apply cases addressing CCP § 397(c), such as the above authority, to this court’s instant inquiry that is made instead pursuant to LASC Local Rule 2.3(b)(2), the court disagrees: given the identical language of CCP § 397(c) regarding transferring cases from one county to another (“The court may, on motion, change the place of trial in the following cases: … When the convenience of witnesses and the ends of justice would be promoted by the change.”) and LASC Local Rule 2.3(b)(2) regarding transferring cases from one district to another within the same county (“The Supervising Judge of the Civil Division may, for the convenience of witnesses or to promote the ends of justice, transfer a civil case from one district to another.”), the court finds the same burdens of proof should apply.

Here, Defendants only present the declarations of: (1) defendant Carson J. Daly, who declares he lives in New York and may be called as a witness; and also that his stepfather Richard Caruso was recently added as a defendant, is in his 80s, and lives in Palm Desert (Daly Dec., ¶ 3-5); (2) defendant Celia Sweet Shire, who only declares she lives in New York and may be called as a witness (Shire Dec., ¶ 2-3); and (3) defendant Bryan F. Kelly, who declares he may be called as a witness and it would be “onerous and inconvenient” to make a three-hour round-trip commute to the Stanley Mosk courthouse, especially when the Santa Monica courthouse is just minutes away; that a transfer would make it easier for the jurors to view the subject property line as Defendants plan to request; and, in the objected-to portion of his declaration, that Plaintiff also would benefit from a transfer because it and its employees are located in Santa Monica (Kelly Dec., ¶ 3-8). These declarations all fail to carry Defendants’ burden of proof on the motion, in that convenience to parties is not considered as part of this determination pursuant to the authorities cited above. Also, to the extent Defendants argue the jurors may need to physically travel to see the subject fence/property line, Defendants acknowledge they have not yet made such a motion; further, as the jurors would be compensated for their time and travel expenses in the event such a viewing were necessary, Defendants’ argument that a transfer of the case is necessary to promote the ends of justice is vitiated. Finally, in light of the multiple hearings already conducted in the matter by Judge Frederick C. Shaller, the court finds a transfer at this time would defeat judicial economy rather than promote it, which is another reason a transfer would not promote the ends of justice.

For all these reasons, the court DENIES Defendants’ motion to transfer the action to the West Judicial District.