HIRAM ASH VS JACK IN THE BOX INC

Tentative Rulings

Case Number: BC678771    Hearing Date: February 04, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, Hiram Ash filed this action against Defendants, Jack in the Box, Inc. and Does 1-50 for damages arising out of an alleged assault and battery that occurred at one of Defendant’s San Francisco locations.

2. Motion to Transfer Venue

a. Parties’ Positions

Defendant moves to transfer venue to San Francisco County and seeks imposition of sanctions against Plaintiff’s attorney of record. Defendant bases its motion on evidence showing the incident occurred in San Francisco County, and Defendant resides in San Diego County. Plaintiff opposes the motion, contending Doe 1, the assailant, resides in Los Angeles County. Plaintiff also opposes the request for sanctions in various grounds.

b. Venue in Personal Injury Actions

Pursuant to CCP §395(a), venue in a personal injury action is proper in the county where the injury occurred and also in the county where the defendant resides. §395.5 defines “residence” for a corporate defendant as that corporate defendant’s principal place of business.

c. Effect of Doe Defendant Potentially Residing in Los Angeles

The parties discuss the holding of Gutierrez v. Superior Court (1966) 243 Cal.App.2d 710, 724 in connection with the issue of whether Plaintiff’s allegation that a doe defendant resides in Los Angeles is sufficient to support venue in Los Angeles. The Gutierrez Court held that, when a doe defendant is properly named (through a valid amendment clarifying the actual identity of the doe defendant) while a motion to change venue is pending, and that doe defendant resides in the county where the action is pending, the residency of the doe defendant can be considered by the trial court in denying the motion.

Nothing in Gutierrez suggests that an UNNAMED doe defendant, even if his possible residence is stated in the complaint, can support jurisdiction in the unnamed doe defendant’s purported location. As Defendant correctly notes in reply, the incident that forms the basis of this action occurred on 10/11/15. Plaintiff has therefore had over four years to identify and name the assailant who assaulted him in connection with this incident. Plaintiff has not done so. Plaintiff suggests, in opposition to the motion, that Defendant has more information about the identity of the assailant; there is no evidence submitted with the opposition to support this assertion.

The only named defendant in the action is Jack in the Box. It made the requisite showing that venue is not proper against it in Los Angeles County. The motion to transfer venue is therefore granted.

d. Sanctions

Defendant seeks sanctions pursuant to CCP §396b(b). Sanctions are appropriate per CCP §396(b). In deciding on fees, the court considers (1) whether an offer to stipulate to change of venue was reasonably made and rejected; and (2) the party's “good faith”—given the facts and law known to such party—in making the motion or selecting the venue originally. CCP § 396b(b); Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 931-932.

Defendant shows that it attempted to meet and confer prior to filing this motion, and Plaintiff refused to change venue. Defendant shows there is patently no merit to venue in Los Angeles County, and Plaintiff refused to transfer this action despite the lack of authority in support of venue here.

Plaintiff argues sanctions should not be imposed because (a) the motion lacks credibility, and (b) the motion is procedurally improper per CCP §128.5. The motion is premised on Defendant’s venue, which is not in dispute. The other issues are ancillary in nature. The Court finds the moving papers are credible. The request for sanctions is not premised on §128.5, and the safe harbor provision that appears therein has no relevance to the sanctions request being made in this motion.

The Court finds the request for sanctions in the amount of $2580 is both reasonable and fully supported by Defense Counsel’s declaration. Sanctions in the amount of $2580 are imposed against Plaintiff’s attorney, and must be paid within twenty days.

e. Transfer Fees

CCP §399(a) obligates the plaintiff to pay the fees if the motion is granted on the “wrong court” ground. Plaintiff is responsible for paying the costs and fees of transferring the action to San Francisco County within thirty days after service of notice of the transfer order. If Plaintiff fails to do so within five days after service of notice of the order, any other interested party, whether named in the complaint or not, may pay such costs and fees in order to expedite the transfer. If the fees and costs are not paid within thirty days, the action is subject to dismissal. CCP §399(a); see Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1037.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.