motion to change venue
TRANSCRIPT
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26SUPERIOR COURT OF STATE OF CALIFORNIA
COUNTY OF RIVERSIDE – SOUTHWEST JUSTICE CENTER
Plaintiff,
Case No.:
NOTICE OF MOTION AND MOTION TO CHANGE VENUE; MEMORANDUM OF POINTS AND AUTHORITIES
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26v.
Defendants.
Date: Time:Dept.
TO: THE CLERK OF THE ABOVE COURT;
PLAINTIFF AND ITS ATTORNEYS OF RECORDS:
NOTICE IS HEREBY GIVEN that on March 11, 2014, at 9:00 a.m. in
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Department ________ of the Superior Court of California, County of Riverside located
at: 30755-D Auld Road, Murrieta, CA 92563, (“Defendants”), will move the Court to
order that venue for the above-entitled case be transferred to the Superior Court of
California, County of Los Angeles pursuant to Code of Civil Procedure Sections 395 and
396, due to the fact that Defendant resides in the County of Los Angeles and at no time did
Defendant enter into a contract with Plaintiff in Los Angeles County.
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Therefore the above-entitled Court does not have subject matter jurisdiction.
Defendant further moves the Court for an order that Plaintiff pay to Defendant their costs
and transfer fees pursuant to Sections 396 and 399 of the Code of Civil Procedure. The
Motion will be based on this notice, the attached memorandum of points and authorities, the
attached Declaration of _____________________ and Exhibits attached thereto, the records
and files of this action, and the oral and documentary evidence which may be introduced at
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the hearing.
Dated: 01/06/2014
_____________________________________________Attorneys for Defendants
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SUPERIOR COURT OF STATE OF CALIFORNIACOUNTY OF RIVERSIDE – SOUTHWEST JUSTICE CENTER
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Plaintiff,
v.
Defendants.
Case No.:
MEMORANDUM OF POINTS AND AUTHORITIES
Date: Time: Dept.
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MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiff filed its complaint in the Superior Court of California, County of Riverside,
Southwest Justice Center Courthouse. Defendants contend that venue is improper as they
did not enter into any contract with Plaintiff in Riverside County. In fact the complaint
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alleges that Defendants entered into contract with Plaintiff in this county which is not
accurate and it is misrepresentation of fact.
The complaint does not contain any allegations against the Moving Defendants that
at the time of filing this action Defendants resided in Riverside County. The only allegations
is that Defendants entered into an agreement with Plaintiff in this County, (Compl. ¶1.2)
which is not true. The Complaint also claims that Defendants that the venue was proper
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here, (Compl. ¶1.2) which is not true either.
Defendants contend that they are not now nor have they ever been a resident of
Riverside county. Defendants reside in Los Angeles County, the business is located in
Glendale which is located in Los Angeles County, State of California.
Defendant requests that the Court order that venue for the above-entitled case be
transferred to the Superior Court of California, County of Los Angeles, and further that
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Plaintiff pay Defendants costs, and the transfer fees.
LEGAL ARGUMENT
A. LOS ANGELES COUNTY IS THE PROPER VENUE FOR THE TRIAL OF THIS
ACTION BECAUSE ALL DEFENDANTS IN THIS ACTION RESIDE IN THIS
COUNTY
Code of Civil Procedure Section 395(a) states in part:“Except as otherwise provided
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by law and subject to the power of the court to transfer actions or proceedings as provided
in this title, the county in which the defendants or some of them reside at the
commencement of the action is the proper county for the trial of the action.”In fact no
Defendant in this case resides in Riverside County. Defendant _________, resides in Los
Angeles County ; and Defendant _______________, Inc., is also located in Los Angeles
County. As Plaintiff’s own complaint alleges, Plaintiff ____________ "is, and at all times
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herein mentioned was, an individual who, at the time of the making of the contracts that are
the subject hereof resided in Los Angeles County, California"; (Compl. ¶2.2).
Additionally, Plaintiff further states that Defendant ________________, Inc. "is, and at all
times herein mentioned was, an individual who, at the time of the making of the contracts
that are the subject hereof resided in Los Angeles County, California"; (Compl. ¶2.3).
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B. THE COURT HAS THE STATUTORY AUTHORITY TO TRANSFERTHIS
CASE, AND ORDER THE PLAINTIFFS TO PAY THE COSTS ANDTRANSFER
FEES.
Code of Civil Procedure Section 396 states in pertinent part:“If an action or
proceeding is commenced in or transferred to a court which has jurisdiction of the subject
matter thereof as determined by the complaint or petition, and it thereafter appears from the
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verified pleadings, or at the trial, or hearing, that the determination of the action or
proceeding, or of a cross-complaint, will necessarily involve the determination of questions
not within jurisdiction of the court, in which the action or proceeding is pending, the court,
whenever such lack of jurisdiction appears, must suspend all further proceedings therein
and transfer the action or proceeding and certify the pleadings, and all papers and
proceedings therein to a court having jurisdiction thereof which may be agreed upon by the
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parties, or if they do not agree, to a court having such jurisdiction which is designated by
law as a proper court for the trial or determination thereof.. Upon the making of an order for
transfer, proceedings shall be had as provided in Section 399 of this code, the costs and fees
thereof, and of filing the case in the court to which transferred, to be paid by the party filing
the pleading in which the question outside the jurisdiction of the court appears unless the
court ordering the transfer shall otherwise direct”.
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Code of Civil Procedure Section 399 states in part:“When the transfer is sought
solely, or is ordered, because the action or proceeding was commenced in a court other than
that designated as proper by this title, such costs and fees (including any expenses and
attorneys fees awarded defendant pursuant to Section 396b) shall be paid by the plaintiff
before such transfer is made”. As Plaintiff had absolutely no justification for filing this
action in Riverside County, other than the convenience of Plaintiff's Attorneys, the Court
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should order Plaintiff and/or his attorney to pay the costs of transfer.
C. THE LAW FAVORS HAVING ACTIONS AGAINST DEFENDANTS TRIED IN
THE COUNTY OF THEIR RESIDENCE
A Plaintiff’s right to trial in some county other than that of a defendants residence is an
exception to the general rule and requires express statutory justification. See Brown v.
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Superior Court (1984) 37 Cal.3d 477, 483.
Convenience of Witnesses. Convenience of witnesses is
shown by the fact that the residence of all the witnesses is in the county to which the
transfer of the cause of action is requested. (Harden v. Skinner & Hammond (1955) 130
Cal. App. 2d 750, 754, 279 P.2d 978).
Plaintiff is a national banking association that at the time of filing this action was
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located in the city of Temecula, County of Riverside. (Compl. ¶2.1) The attorneys for
Plaintiff are also located in the City of El Cajon, in the County of Riverside, the County
where this action has been filed. However, Defendants and each of them are resident of
County of Los Angeles, hence, the action should have been filed in Los Angeles County.
(Compl. ¶¶2.2; 2.3) The attorneys for Plaintiff for their own convenience filed this action in
Riverside County. The convenience of witnesses is shown by the fact that the residence of
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all witnesses is in the county to which transfer of the case is required. (Harden v. Skinner),
supra.
The Convenience of witnesses is shown by the fact that the residence of all the
witnesses is in the county to which the transfer of the cause is requested. [Citation.] A
conclusion that the ends of justice are promoted can be drawn from the fact that by moving
the trial closer to the residence of the witnesses, delay and expense are affected. [Citation.]
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Where there is a showing that the convenience of witnesses and the end of justice will be
prompted by the change and there is absolutely no showing whatsoever to the contrary, a
denial of the motion to change venue is an abuse of discretion, there being no conflict of
evidence to sustain the decision of the trial court. [Citations.]" Pearson v. Superior Court
91962) 199 Cal.App.2d 69, 77-78 [18 Cal.rptr. 578].)
Determination as to ends of Justice. In determining that the
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ends of justice will be promoted by a change of venue, the trial court may rely not only on
the direct facts set forth in the affidavits, but also on any reasonable and relevant inference
arising therefrom. (Harden v. Skinner & Hammond (1955) 130 Cal App. 2d 68, 69, 217
P2d 157).
As reflected by declaration of Defendant, he and all the
witnesses who shall be called for Defendants are residents of Los Angeles County.
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CONCLUSION
Based on the foregoing, Defendants request an order for a change of venue from
Riverside County to Los Angeles County, Central District.
Dated:
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26__________________________________
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26Attorneys for defendants