KLEEN KRAFT SERVICES INC. VS WEST COAST AUTO, ET AL.

Tentative Rulings

Case Number: 20STLC04624    Hearing Date: May 10, 2021    Dept: 25

PROCEEDINGS: MOTION FOR CHANGE OF VENUE TO SAN BERNARDINO COUNTY

MOVING PARTY: Defendants West Coast Auto Center, Inc. erroneously sued as West Coast Auto aka West Coast Auto Service and Bassem Hijazi

RESP. PARTY: Plaintiff Kleen Kraft Services, Inc.

MOTION FOR CHANGE OF VENUE

(CCP §§ 395, 395.5)

TENTATIVE RULING:

Defendants West Coast Auto Center Inc. and Bassem Hijazi’s Motion for Change of Venue to San Bernardino County is DENIED. Plaintiff’s request for sanctions is also DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 14, 2021 [ ] Late [ ] None

REPLY: Filed on January 21, 2021 [ ] Late [ ] None

PLF. SUPP. BRIEF: Filed on April 1 & 29, 2021 [ ] Late [ ] None

DEF. SUPP. BRIEF: Filed on April 27, 2021 [ ] Late [ ] None

ANALYSIS:

I. Background

On June 2, 2020, Plaintiff Kleen Kraft Services, Inc. (“Plaintiff”) filed an action for breach of contract, account stated, and money owed against Defendants West Coast Auto Center, Inc. dba West Coast Auto Service, erroneously sued as West Coast Auto aka West Coast Auto service (“West Coast”) and Bassem Hijazi (“Hijazi”) (collectively, “Defendants”). Plaintiff alleges Defendants breached a Rental Service Agreement (the “Agreement”) entered into in or about January 2013. (Compl., ¶ 8, Exh. B.)

Defendants filed the instant Motion for Change of Venue to San Bernardino County (the “Motion”) on January 11, 2021. Plaintiff filed an opposition on January 14, and Defendants filed a reply on January 21.

At the initial hearing on January 28, 2021, the Court noted that the Motion appeared to be untimely as it was filed on January 11, more than six months after meeting and conferring with Plaintiff’s counsel regarding the issue of venue. (1/28/21 Minute Order.) As a result, the Court continued the hearing and ordered supplemental papers explaining the situation. (Id.) Defendants filed the requested supplemental papers on March 8.

A continued hearing was scheduled for March 30, 2021. Following oral arguments, the Court continued the hearing one last time and requested that the parties submit supplemental briefing regarding the issues presented at the hearing. (3/30/21 Minute Order.)

Plaintiff filed a supplemental brief on April 1, Defendants filed a response on April 27, and Plaintiff filed a sur-reply on April 29.

II. Legal Standard & Discussion

A. Timeliness of Motion

In their first set of supplemental papers, Defendants’ counsel explains that Defendants’ responsive pleading to Plaintiff’s Complaint was due to be filed on or about July 10, 2020. (3/8/21 Supp. Brief, Sirey Decl., ¶ 2.) That same day, Defendants’ counsel reserved the January 28, 2021 date for a hearing on this Motion through the Court’s online reservation system. (Id.) Defendants’ counsel also presents evidence that she filed the Motion with One Legal, the court filing and process serving software system Defendants’ counsel utilizes, on July 10, 2020. (Id. at ¶ 4.) Notably, the proof of service attached to the Motion demonstrates it was served on Plaintiff’s counsel via mail and email on July 10, 2020. (Id. a ¶ 5; Mot., Proof of Service.) For an unknown reason, when Defendants’ counsel reviewed the docket for this case on January 11, 2021, the Motion did not appear. (3/8/21 Supp. Brief, p. 2:12-27, Sirey Decl., ¶ 6.) That same day, Defendants’ counsel re-filed the Motion but did not re-serve on Plaintiff as it had already been served on July 10, 2020. (Id., Sirey Decl., ¶ 7.)

The Court is satisfied with this explanation and proceeds to consider the merits of Defendants’ Motion.

B. Change of Venue

As to individual defendants, Code of Civil Procedure section 395 provides, in pertinent part, “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action…Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary.”

In an action against a corporation, the action may be commenced in “the county where the contract was made or is to be performed, or where the obligation or liability arises, or the breach occurs; or 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.” (Code Civ. Proc., § 395.5.) “[A] corporate defendant…seeking…an order [changing venue] has the burden of negating the propriety of venue as laid on all possible grounds. [Citation].” (Anaheim Extrusion Co. v. Superior Court (1985) 170 Cal.App.3d 1201, 1203.) (Italics in original.)

Defendants argue that Defendant Hijazi, as an individual, has a heightened right to demand venue in his county of residence, San Bernardino County. (Reply, pp. 3:11-4:11.) As Plaintiff points out, however, when an individual is sued as an alter ego, the alter ego allegations place the individual defendant in the same position as the corporate defendant and Code of Civil Procedure section 395.5 applies. (Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1470-71.) Plaintiff’s only allegations against Defendant Hijazi are alter ego allegations. (Compl., ¶ 4.) Thus, the provisions of Code of Civil Procedure section 395.5 apply.

Defendants point out that Plaintiff’s Complaint did not make any allegations as to the appropriate venue for this dispute and argue the appropriate venue is in San Bernardino County. (Mot., pp. 4:25-5:4.) Specifically, as alleged in Plaintiff’s Complaint, Defendant West Coast’s principal place of business is in Montclair, CA, and Defendant Hijazi resides in Chino Hills, CA, both of which are located in San Bernardino County. (Id., Hijazi Decl., ¶ 4.) Further, Defendant Hijazi, as an authorized agent of Defendant West Coast, attests that he is informed and believes that the Agreement was entered into by a former employee at Defendant West Coast’s Montclair location in San Bernardino County. (Id. at ¶¶ 2-4.) Defendants also argue the Agreement contemplated performance in San Bernardino County. (Mot., p. 6:16-23.) Specifically, the Agreement provides that Plaintiff would deliver uniforms to Defendant West Coast, which is located in San Bernardino County at 5180 Holt Blvd., Montclair, CA 91763. (Id.; Compl., Exh. B.) As a result, Defendants argue, the action should be transferred to San Bernardino County.

In opposition, Plaintiff argues venue in Los Angeles is proper because this action seeks collection of monies due on a contract for which payment was due at Plaintiff’s Commerce, CA location, which is in Los Angeles County. (Oppo., p. 1:24-27.)

Plaintiff relies on Anaheim Extrusion Company, Inc. v. Superior Court of Orange County (1985) 170 Cal.App.3d 1201. (Oppo., p. 2:10-24.) In Anaheim, the Court reversed a trial court order granting a defendant’s motion for change of venue to Los Angeles because the moving defendant failed to carry its burden to show that Orange County was improper under all grounds listed under Code of Civil Procedure section 395.5. (Anaheim Extrusion Company, Inc. v. Superior Court of Orange County, supra, 170 Cal.App.3d at p. 1203-04.) Although goods were delivered to Los Angeles County in the Anaheim case, the performance the defendant allegedly breached was payment for the delivery of those goods and therefore, the place where payment was to be made, i.e., Orange County, was the place where the contract was to be performed under Section 395.5. (Id.) Although there was a question as to where the parties intended payments to be made, the court quickly disposed of the issue, finding that although the contract was silent on this point, evidence in the record indicated payments had always been received in Orange County. (Id.)

Relying on Hale v. Bohannon (1952) 38 Cal.2d 458, Defendants argue the Court “must also consider all the surrounding circumstances in its analysis of performance of the contract between Plaintiff and [Defendant West Coast.]” (4/27/21 Def. Supp. Brief, p. 3:25.) In Hale, the Court rejected the defendant lumber company’s argument that the mailing of a payment check from San Mateo County to Humboldt County demonstrated the defendant’s performance was accomplished in San Mateo County. (Hale v. Bohannon, supra, 38 Cal.2d at p. 468.) Considering the evidence in the record, including that the subject contract had been entered into in San Mateo County, that the creditor plaintiff resided in Humboldt County, and that the possibility existed that the party making the payments had “the burden of overcoming difficulties which might arise in carrying out the requirements of the contract,” the Court found that payment was to be made in Humboldt County. (Id.)

Here, as in Anaheim, the parties’ Agreement attached to Plaintiff’s Complaint does not contain a provision regarding the place where payments must be made. (See Compl., Exh. B.) Boris Zaidman (“Zaidman”), Plaintiff’s vice president and general manager, provides his declaration attesting that, at all times during the six years that Plaintiff and Defendant West Coast were in business, payments were always received at Plaintiff’s Commerce, CA address. (Oppo., Zaidman Decl., ¶ 4.) He also includes several checks dated between August 1, 2019 and December 2, 2019 demonstrating they were mailed to Plaintiff’s Commerce, CA address. (Id. at ¶ 3, Exh. B.) Defendants present no evidence allowing the Court to conclude otherwise and, indeed, appear to concede payments were always sent to Los Angeles County. (Reply, p. 4:23 [“The only connection to Los Angeles County is payment”].) In addition, the Agreement states that Defendant West Coast agreed to pay for services by the 30^th of every month and that past due accounts would be charged at 1 1/2 % every month. (Compl., Exh. B.) This term demonstrates the burden was on Defendant West Coast to ensure payment was timely delivered to Plaintiff or it would incur late fees. Thus, the Court finds the place where payments under the Agreement are to be made is in Los Angeles County.

As noted above, “[a] corporate defendant…seeking…an order [changing venue] has the burden of negating the propriety of venue as laid on all possible grounds. [Citation].” (Anaheim Extrusion Co. v. Superior Court (1985) 170 Cal.App.3d 1201, 1203.) (Italics in original.) Defendants have not carried their burden to show venue in Los Angeles County is improper on all grounds.

For that reason, Defendants’ Motion is DENIED.

C. Plaintiff’s Request for Sanctions

In its discretion, the Court may order that the prevailing party recover its reasonable expenses and fees incurred in making or resisting a motion to transfer, whether or not that party is otherwise entitled such a recovery in the action. (Code Civ. Proc., § 396b, subd. (b).) In determining whether to award attorney’s fees and costs, the Court must take into consideration whether the party first sought a stipulation to transfer the case and was rejected and whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. (Id.) Sanctions pursuant to this section must be properly noticed before they may be awarded. (Id.) “As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party.” (Id.)

Plaintiff requests sanctions of $2,300.00 based on 4 hours of attorney time billed at $575.00 per hour. (Oppo., Gabriel Decl., ¶¶ 2.) Defendants argue Plaintiff is not entitled to sanctions because this Motion is not frivolous as demonstrated from the Court’s continuances and request for supplemental briefing. (4/1/21 Def. Supp. Brief, p. 4:2-7.) The Court finds Defendants filed this Motion in good faith given the facts of the case. Thus, Plaintiff’s request for sanctions is DENIED.

III. Conclusion & Order

Based on the foregoing, Defendants West Coast Auto Center Inc. and Bassem Hijazi’s Motion for Change of Venue to San Bernardino County is DENIED. Plaintiff’s request for fees and costs is also DENIED.

Moving parties are ordered to give notice.

Case Number: 20STLC04624    Hearing Date: March 30, 2021    Dept: 25

HEARING DATE: Tue., March 30, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Kleen Kraft Services, Inc. v. West Coast Auto, et al.

CASE NUMBER: 20STLC04624 COMP. FILED: 06-02-20

NOTICE: OK DISC. C/O: 10-30-21

PROCEEDINGS: MOTION FOR CHANGE OF VENUE TO SAN BERNARDINO COUNTY

MOVING PARTY: Defendants West Coast Auto Center, Inc. erroneously sued as West Coast Auto aka West Coast Auto Service and Bassem Hijazi

RESP. PARTY: Plaintiff Kleen Kraft Services, Inc.

MOTION FOR CHANGE OF VENUE

(CCP §§ 395(a), 396b)

TENTATIVE RULING:

Defendants West Coast Auto Center Inc. and Bassem Hijazi’s Motion for Change of Venue to San Bernardino County is GRANTED. In addition, pursuant to Code of Civil Procedure section 396b(b), Plaintiff’s counsel Jonathan Gabriel is ordered to pay Defendants’ counsel attorney’s fees and costs of $1,444.95 within thirty (30) days of notice of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 14, 2021 [ ] Late [ ] None

REPLY: Filed on January 21, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On June 2, 2020, Plaintiff Kleen Kraft Services, Inc. (“Plaintiff”) filed an action for breach of contract, account stated, and money owed against Defendants West Coast Auto Center, Inc. dba West Coast Auto Service, erroneously sued as West Coast Auto aka West Coast Auto service (“West Coast”) and Bassem Hijazi (“Hijazi”) (collectively, “Defendants”). Plaintiff alleges Defendants breached a Rental Service Agreement (the “Agreement”) entered into in or about January 2013. (Compl., ¶ 8, Exh. A.)

Defendants filed the instant Motion for Change of Venue to San Bernardino County (the “Motion”) on January 11, 2021. Plaintiff filed an Opposition on January 14, and Defendants filed a Reply on January 21.

At the initial hearing on January 28, 2021, the Court noted that the Motion appeared to be untimely as it was filed on January 11, more than six months after meeting and conferring with Plaintiff’s counsel regarding the issue of venue. (1/28/21 Minute Order.) As a result, the Court continued the hearing and ordered supplemental briefing on this issue. (Id.) Defendants filed the requested supplemental papers on March 8, 2021.

1. Legal Standard & Discussion

A. Timeliness of Motion

In their supplemental papers, Defendants’ counsel explains that Defendants’ responsive pleading to Plaintiff’s Complaint was due to be filed on or about July 10, 2020. (3/8/21 Supp. Brief, Sirey Decl., ¶ 2.) That same day, Defendants’ counsel reserved the January 28, 2021 date for a hearing on this Motion through the Court’s online reservation system. (Id.) Defendants’ counsel also presents evidence that she filed the Motion with One Legal, the court filing and process serving software system Defendants’ counsel utilizes, on July 10, 2020. (Id. at ¶ 4.) Notably, the proof of service attached to the Motion demonstrates it was served on Plaintiff’s counsel via mail and email on July 10, 2020. (Id. a ¶ 5; Mot., Proof of Service.) For an unknown reason, when Defendants’ counsel reviewed the docket for this case on January 11, 2021, the Motion did not appear. (3/8/21 Supp. Brief, p. 2:12-27, Sirey Decl., ¶ 6.) That same day, Defendants’ counsel re-filed the Motion but did not re-serve on Plaintiff as it had already been done on July 10, 2020. (Id., Sirey Decl., ¶ 7.)

The Court is satisfied with this explanation and proceeds to consider the merits of Defendants’ Motion.

B. Change of Venue

If an action is filed in a court that has jurisdiction over the matter, but not the court designated as the proper court for trial thereof, the defendant may, before he or she files an answer, demurs, or moves to strike, file a notice of motion for an order transferring the action to the proper court. (Code Civ. Proc., § 396b, subd. (a).)

Code of Civil Procedure section 395 provides, in pertinent part, “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action…Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary.”

In an action against a corporation, the action may be commenced in “the county where the contract was made or is to be performed, or where the obligation or liability arises, or the breach occurs; or 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.” (Code Civ. Proc., ¶ 395.5.)

Defendants point out that Plaintiff’s Complaint did not make any allegations as to the appropriate venue for this dispute and argue the appropriate venue is in San Bernardino County. (Mot., pp. 4:25-5:3.) Specifically, as alleged in Plaintiff’s Complaint, Defendant West Coast’s principal place of business is in Montclair, CA, and Defendant Hijazi resides in Chino Hills, CA, both of which are located in San Bernardino County. (Id., Hijazi Decl., ¶ 4.) Further, Defendant Hijazi, as an authorized agent of Defendant West Coast, attests that he is informed and believes that the Agreement was entered into by a former employee at Defendant’s Montclair location in San Bernardino County. (Id. at ¶¶ 2-4.) Notably, Plaintiff does not argue or present evidence demonstrating the Agreement was entered into in Los Angeles County. Defendants also argue the Agreement contemplated performance in San Bernardino County. (Mot., p. 6:16-23.) Specifically, the Agreement provides that Plaintiff would deliver uniforms to Defendant West Coast, which is located in San Bernardino County at 5180 Holt Blvd., Montclair, 91763. (Id.; Compl., Exh. B.) As a result, Defendants argue, the action should be transferred to San Bernardino County. (Mot., p. 4-10.)

Relying on Anaheim Extrusion Company, Inc. v. Superior Court of Orange County (1985) 170 Cal.App.3d 1201, Plaintiff argues Los Angeles County is proper. (Oppo., p. 2:10-24.) In Anaheim, the Court reversed a trial court order granting a defendant’s motion for change of venue to Los Angeles because the moving defendant failed to carry its burden to show that Orange County was improper under all grounds listed under Code of Civil Procedure section 395.5. (Anaheim Extrusion Company, Inc. v. Superior Court of Orange County, supra, 170 Cal.App.3d at p. 1203-04.) The Court also noted that although goods were delivered to Los Angeles County, the performance allegedly breached was payment for the delivery of those goods and therefore, the place where payment was to be made, i.e., Orange County, was the place where the contract was to be performed under Section 395.5. (Id.) On this basis, Plaintiff argues that because its place of business is located in Los Angeles County and because payments on the Agreement were sent to their Commerce address, venue is proper in Los Angeles County under Section 395.5. (Oppo., p. 2:10-24.)

However, Anaheim Extrusion Company, Inc. is narrower and distinguishable as it involves only corporate defendants, not both individual and corporate defendants as the instant case does.

As Defendants point out in Reply, individual defendants have a heightened right to demand venue in the county of their residence. (Reply, pp. 3:11-4:11.) Specifically, in Mosby v. Superior Court (1974) 43 Cal.App.3d 219, 226, the Court noted,

“When a plaintiff brings an action against several defendants, both individual and corporate, in a county which is neither the residence nor the principal place of business of any defendant, an individual defendant has a right upon proper showing to a change of venue to the county of his residence even though venue as initially laid may otherwise be justifiable upon one or the four alternative grounds provided by section 395.5 in actions against corporations. [Citations.]”

Similarly, the Court in Hale v. Bohannon (1952) 38 Cal.2d 458, 473 observed:

“ A suit brought in the county where the [defendant] corporation has its principal place of business is one commenced in a proper county under the constitutional provision. The individual defendant joined with the corporation may not secure a change of venue in such circumstances because, under section 395, ‘some’ of the defendants reside in the county where the action was commenced. Where the action is not commenced in the county of any defendant's residence, the individual defendant then is entitled, under section 395, to secure a change of venue to the county where some or all of the defendants reside.” (Emphasis added.)

Here, Plaintiff’s sole reason for bringing this action in Los Angeles County is because payment was allegedly to be made in this county. However, as noted in Mosby, individual defendants have a heightened right to trial in the county of their residence. It is undisputed that Defendant Hijazi is an individual and a resident of San Bernardino County and that the action was not commenced in the county where neither resident reside. Thus, Defendant Hijazi is entitled to have this action transferred to San Bernardino County. Accordingly, the Motion is GRANTED.

C. Award of Attorney’s Fees

In its discretion, the Court may order that the prevailing party recover its reasonable expenses and fees incurred in making or resisting a motion to transfer, whether or not that party is otherwise entitled such a recovery in the action. (Code Civ. Proc., § 396b, subd. (b).) In determining whether to award attorney’s fees and costs, the Court must take into consideration whether the party first sought a stipulation to transfer the case and was rejected and whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. (Id.) Sanctions pursuant to this section must be properly noticed before they may be awarded. (Id.) “As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party.” (Id.)

Defendants’ request for attorney’s fees of $1,444.95 has been properly noticed. (Notice of Mot., p. 2:8-11.) Defendants’ counsel states that on or about July 8, 2020, she attempted to meet and confer with Plaintiff’s counsel regarding the improper venue and requested that the parties stipulate to transfer the action to San Bernardino County. (Id. at ¶ 2.) Plaintiff’s counsel did not agree to do so. (Id.) In addition, Defendants’ Motion was brought in good faith as the law is well-established that when the venue provisions as to individual defendants and corporations conflict, the preference is given to an individual defendant. (Mosby v. Superior Court, supra, 43 Cal.App.3d at p. 226.) Thus, the Court finds Defendants’ request for attorney’s fees and costs is appropriate.

Defendants’ request of $1,444.95 is based on five hours of attorney time billed at $275.00 per hour and one filing fee of $69.95. (Mot., Sirey Decl., ¶ 7.) The Court finds this request to be reasonable. Plaintiff’s counsel, Jonathan Gabriel, is ordered to pay $1,444.95 within thirty days (30) of notice of this order.

1. Conclusion & Order

Based on the foregoing, Defendants West Coast Auto Center Inc. and Bassem Hijazi’s Motion for Change of Venue to San Bernardino County is GRANTED. In addition, pursuant to Code of Civil Procedure section 396b(b), Plaintiff’s counsel Jonathan Gabriel is ordered to pay Defendants’ counsel attorney’s fees and costs of $1,444.95 within thirty (30) days of notice of this order.

Moving party is ordered to give notice.

Case Number: 20STLC04624    Hearing Date: January 28, 2021    Dept: 25

HEARING DATE: Thu., January 28, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Kleen Kraft Services, Inc. v. West Coast Auto, et al.

CASE NUMBER: 20STLC04624 COMP. FILED: 06-02-20

NOTICE: OK DISC. C/O: 10-30-21

PROCEEDINGS: MOTION FOR CHANGE OF VENUE TO SAN BERNARDINO COUNTY

MOVING PARTY: Defendants West Coast Auto Center, Inc. erroneously sued as West Coast Auto aka West Coast Auto Service and Bassem Hijazi

RESP. PARTY: Plaintiff Kleen Kraft Services, Inc.

MOTION FOR CHANGE OF VENUE

(CCP §§ 395(a), 396)

TENTATIVE RULING:

Defendant West Coast Auto Center Inc. and Bassem Hijazi’s Motion to Change of Venue to San Bernardino County is CONTINUED TO MARCH 30, 2021 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Plaintiff is ordered to file a proof of service for the Summons and Complaint at least 16 court days before the next scheduled hearing.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: Filed on January 14, 2021 [ ] Late [ ] None

REPLY: Filed on January 21, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On June 2, 2020, Plaintiff Kleen Kraft Services, Inc. (“Plaintiff”) filed an action for breach of contract, account stated, and money owed against Defendants West Coast Auto Center, Inc. dba West Coast Auto Service, erroneously sued as West Coast Auto aka West Coast Auto service (“West Coast”) and Bassem Hijazi (“Hijazi”) (collectively, “Defendants”).

Defendants filed the instant Motion for Change of Venue to San Bernardino County (the “Motion”) on January 11, 2021. Plaintiff filed an Opposition on January 14, and Defendants filed a Reply on January 21.

1. Legal Standard

Code of Civil Procedure section 395 provides, in pertinent part, “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action…Subject to subdivision (b), f a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary.” In an action against a corporation, the action may be commenced in “the county where the contract was made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business if such corporation is situated subject to the power of the court to change the place of trial as in other cases.” (Code Civ. Proc., ¶ 395.5.) In an action to collect money owed, the place where payment was to be made is the place “ ‘where the contract [was] to be performed’ ” under section 395.5. (See Anaheim Extrusion Co. v. Superior Court (1985) 170 Cal.App.3d 1201, 1203.)

1. Discussion

A. Timeliness of Motion

Before considering the merits, the Court must first determine whether Defendants’ Motion is timely. A motion to transfer made on the ground that the action has been brought in the wrong or “improper” court must be made within the time permitted to file a responsive pleading, unless otherwise extended by stipulation or court order. (Code Civ. Proc., § 396b, subd. (a).) (Emphasis added.)

Here, Plaintiff did not file a proof of service for the Summons and Complaint, so the Court is unable to determine when a responsive pleading was due. The Court notes, however, that Defendants’ counsel’s declaration states she met and conferred with Plaintiff’s counsel regarding venue on or about July 8, 2020. (Mot., Sirey Decl., ¶ 2.) Yet, this Motion was not filed until January 11, 2021. Thus, it appears Defendants’ request for relief is untimely. Plaintiff is ordered to file a proof of service for the Summons and Complaint so that the Court may determine the timeliness of Defendants’ request for relief.

1. Conclusion & Order

Based on the foregoing, Defendant West Coast Auto Center Inc. and Bassem Hijazi’s Motion to Change of Venue is CONTINUED TO MARCH 30. 2021 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff is ordered to file a proof of service for the Summons and Complaint.

Moving party is ordered to give notice.