Case Number: 13K15895 Hearing Date: May 05, 2014 Dept: 77

Defendants John Verdugo and Rachel Verdugo’s Motion for Change of Venue is DENIED. CCP § 395.

Actions for breach of contract are triable in the county where defendant resides, or where the contract was entered into or where it was to be performed. CCP § 395(a). The burden of proof to negate venue in the county where an action for breach of contract is commenced is upon the party seeking to change venue. That is, the prima facie presumption that plaintiff selects the proper venue must be overcome by that moving party. A defendant seeking to change venue in an action to enforce a contract has to show that the chosen forum was not where the contract was made, was not the residence of a defendant at the time the action was commenced, and that the contract did not specify the chosen forum as the place of performance of the contract. Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1041.

Here, the defendants have not attempted to show that Los Angeles County was not their residence at the time this action was commenced. On the other hand, Plaintiff’s counsel’s declaration asserts (through hearsay) that defendants in fact live in Covina, California, which is in Los Angeles County. Thus, on the evidence presented, the Court cannot find that defendants have discharged their burden under CCP § 395 and Mitchell v. Superior Court to demonstrate that transfer is “mandatory,” as Defendans assert in their motion. For this reason, the Court also cannot order the case transferred in a manner that obligates Plaintiff to pay the transfer fees and costs under CCP § 399(a), as the Court would do if the action was commenced in the wrong court under CCP § 397(a). Accordingly, the Court also will not award attorney’s fees and costs for this motion to Defendants.

It is, however, arguable that the case should be transferred to Orange County pursuant to CCP § 397(c) for the following reasons: (a) the contract was entered into in Orange County, (b) rental payments were mailed from Orange County, (c) witnesses may be located in Orange County, and (d) the related small claims case occurred in Orange County. Any such transfer would be at the cost of the Defendants per CCP § 399(a). It is not clear that Defendants actually want this result, and (particularly without Defendants providing their current residence or the location of other witnesses) it further is not clear that downtown Los Angeles is, in fact, less a less convenient venue than is Orange County.

The parties thus should be prepared to address at the hearing whether the Court should order this case transferred to Orange County pursuant to CCP § 397(c), with the Defendants paying costs and fees of the transfer pursuant to CCP § 399(a).

Moving party to give notice.