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

Tentative Rulings

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.