Case Number: BC698046 Hearing Date: July 23, 2018 Dept: 47

Timothy D. Brown v. P & R Paper Supply Company, Inc., et al.

MOTION TO TRANSFER

MOVING PARTY: Defendant P & R Paper Supply Company, Inc.

RESPONDING PARTY(S): Plaintiff Timothy D. Brown

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he was subjected to discrimination and harassment on the basis of his age, and retaliated against for complaining about unlawful practices.

Defendant P & R Paper Supply Company, Inc. moves to transfer this action to San Bernardino County.

TENTATIVE RULING:

Defendant P & R Paper Supply Company, Inc.’s motion to transfer to San Bernardino County is GRANTED.

Plaintiff’s counsel is ordered to pay to the Superior Court the costs of the $50 transfer fee pursuant to Item 59 of the Los Angeles County Superior Court fee schedule (2017).

DISCUSSION:

Request For Judicial Notice

Plaintiff’s request that the Court take judicial notice of the Google Map directions from San Bernardino Courthouse to Stanley Mosk Courthouse is DENIED. This document is irrelevant. The Court need only take judicial notice of relevant materials. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063. The Court may deny a request for judicial notice of material unnecessary to its decision. Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 713.

Motion To Change Venue

As an initial matter, because no Defendant has yet answered the Complaint, a motion to transfer on the ground of convenience of witnesses is premature.

Although the counteraffidavit mentions convenience of witnesses, the trial court could not have based its order on that ground. The court will not entertain a motion for change of venue on the ground of convenience of witnesses when the defendant has not filed an answer, for the reason that until the issues are joined the court cannot determine what testimony will be material. (Pearson v. Superior Court, 199 Cal.App.2d 69, 75, 76 [18 Cal.Rptr. 578], and cases there cited.) For the same reason, a motion for change of venue cannot be defeated on the ground of convenience of witnesses until an answer is filed. In this case no answer was filed, but only a demurrer. Such an attempt to retain the venue as laid in an improper court for convenience of witnesses can be made only when an answer has been filed. (Rowland v. Bruton, 125 Cal.App. 697, 701 [14 P.2d 116]; Gordon v. Perkins, 203 Cal. 183, 185 [263 P. 231].) Therefore, if the defendant accompanies his motion with a demurrer, but not an answer, the court cannot consider a motion to retain for convenience of witnesses, but must transfer the case to the proper court. (Gilman v. Nordin, 112 Cal.App.2d 788, 793 [247 P.2d 394]; DeLong v. DeLong, 127 Cal.App.2d 373, 374 [273 P.2d 921].)

Johnson v. Superior Court of Fresno County (1965) 232 Cal.App.2d 212, 214.

As such, the Court will only consider whether this action was filed in the Court venue.

In the Compliant, Plaintiff asserts several FEHA causes of action. The FEHA venue statute is set forth in Gov. Code § 12965(a), which provides in pertinent part:

The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendant’s residence or principal office.

Contrary to Defendant’s argument, the California Supreme Court has held that the FEHA venue statute controls in mixed action cases. The FEHA venue provision applies not only to FEHA causes of action, but also non-FEHA related claims pled under alternative theories but based on the same set of facts. Brown v. Superior Court (1984) 37 Cal.3d 477, 485-87.

(2) [3:517] Public policy exceptions: There are some cases, however, in which the “mixed action” rule is not followed. Rather, for public policy reasons, plaintiff’s right to choose the place of trial is preferred over defendant’s right to have the action tried at its residence. [Brown v. Sup.Ct. (C.C. Myers, Inc.), supra]

(a) [3:518] Example: P sued for intentional infliction of emotional distress, wrongful discharge and violation of the Fair Employment and Housing Act (Gov.C. § 12900), all arising out of the same facts. Venue was proper under the FEHA which allows suits in the county where the “unlawful practice is alleged to have been committed.” Defendants were not entitled to a change of venue to the county of their residence: “Although the mixed action rule recognizes a preference for trial in the county of defendant’s residence, that preference is outweighed by the strong countervailing policy of the FEHA which favors a plaintiff’s choice of venue.” [Brown v. Sup.Ct. (C.C. Myers, Inc.), supra, 37 C3d at 488, 208 CR at 731 (emphasis added)]

Weil and Brown, California Practice Guide: Civil Procedure Before Trial, The Rutter Group, § 3:517 (bold emphasis added).

Nonetheless, a motion to change venue may be granted where the Plaintiff brings an action subject to the FEHA venue provisions in the improper venue. Ford Motor Credit Co. v. Superior Court (1996) 50 Cal.App.4th 306, 308-310.

Importantly, Plaintiff cannot rely upon facts asserted for the first time in opposition, such as almost being abandoned in a bad neighborhood with no transportation during a ride-along in Los Angeles, which were not pled in the operative Complaint:

It is the rule that after a motion for change of venue has been made the plaintiff may not amend his complaint by way of counteraffidavit on hearing of the motion. (Archer v. Superior Court, 202 Cal.App.2d 417, 420 [21 Cal.Rptr. 48].) (The question of the nature of the action must be determined at the time of the hearing of a motion for a change of venue from allegations of the complaint which was on file at the time the motion was made and from the nature of a default judgment which might be rendered thereon, assuming the truth of the allegations. (Mettler v. Hedley, 170 Cal.App.2d 277, 280 [338 P.2d 489].)

Johnson, supra, 232 Cal.App.2d at 215 (bold emphasis and underlining added).

Here, none of the grounds for FEHA venue set forth in Gov. Code § 12965(a) are alleged to have occurred in Los Angeles County; rather all are alleged to have occurred in San Bernardino County:

¿ The County in which unlawful practices are alleged to have been committed:

The Complaint only alleges unlawful practices which occurred in San Bernardino County. Defendant P&R Paper Supply Company, Inc.’s “principal place of business, where the following causes of action took place, was and is in County of San Bernardino, 1898 E. Colton, Redlands, CA 92344.” Complaint, ¶ 2.a, Page 2:23-3:2. The Complaint does not allege that any unlawful practices occurred in Los Angeles County. The single allegation that Plaintiff went to an NLRB hearing in Los Angeles (¶ 15) does not fit this category.

¿ The County in which records relevant to the alleged unlawful practices are maintained and administered:

As noted, the Complaint alleges that Defendant P&R Paper Supply Company, Inc.’s principal place of business is in San Bernardino County (¶ 2.a) which is presumable where the records would be maintained and administered. Defendant indicates that all of Defendants’ documents and files relating to this incident are located in San Bernardino County (Motion at Page 8:11-12), without citing any supporting evidence but there is no reason to doubt this.

¿ The County in which the person claiming to be aggrieved would have worked but for the alleged unlawful practices:

The County in which Plaintiff would have worked but for the alleged unlawful practices of harassment and his termination is P&R Paper Supply Company, Inc.’s principal place of business is in San Bernardino County. There is no allegation in the Complaint that Plaintiff would have worked in Los Angeles County but for Defendant’s unlawful practices. The single allegation that Plaintiff went to an NLRB hearing in Los Angeles (¶ 15) does not fit this category.

Conclusion

Los Angeles County is not the proper venue to try the claims alleged in the Complaint; San Bernardino County is. The motion to transfer venue to San Bernardino County is GRANTED.

Plaintiff’s counsel is ordered to pay to the Superior Court the costs of the $50 transfer fee pursuant to Item 59 of the Los Angeles County Superior Court fee schedule (2017).

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: July 23, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court