HIRAM ASH VS JACK IN THE BOX INC

Tentative Rulings

Case Number: ****8771    Hearing Date: July 23, 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. 2/04/20 Motion to Transfer Venue

   On 2/04/20, the Court heard Defendant’s motion to transfer venue. The Court issued the following tentative ruling prior to the hearing, and ultimately adopted the tentative as the final ruling on the motion:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

1. Motion for Reconsideration

   On 2/25/20, Plaintiff filed this motion for reconsideration of the 2/04/20 order granting Defendant’s motion to transfer venue. Plaintiff argues there are new facts, circumstances, or law that justify reconsideration of the prior order. Specifically, Plaintiff contends (a) the motion and reply were served at the wrong address and were therefore void, (b) the reply was improper and introduced new arguments, and (c) the Court erroneously refused to consider Plaintiff’s supplemental papers, which Plaintiff filed upon receipt of the improper reply.

1. Address

   Plaintiff’s first argument is that the opposition and reply were improperly served at an incorrect PO Box address. Defendant’s proof of service of the motion papers shows Defendant served Plaintiff via service on his attorney at PO Box 411581, LA, CA 90041. The proof of service also lists service on Plaintiff at his personal address of PO Box 722, South Gate, CA 90280.

   Plaintiff originally appeared in this action by filing his complaint in pro per. The complaint listed PO Box 722, South Gate, CA 90280 as Plaintiff’s mailing address. Plaintiff’s current attorney, Robert Guevara, substituted into the action on 9/30/19. Plaintiff’s attorney listed PO Box 722, South Gate, CA 90280 as his address on the substitution form. On 1/17/20, when Guevara filed opposition to the motion to transfer venue, Guevara again listed the South Gate PO Box on the caption of his pleading. Guevara continues to use this address on his moving papers in connection with this motion. It is not clear how or why Plaintiff, in pro per, and his current attorney, use the same South Gate PO Box.

   Plaintiff now complains that Defendant did not serve him with the reply at his attorney’s correct address. As noted above, the original moving papers include proof of service at BOTH addresses. Plaintiff states, at page 6, lines 24-25 of his moving papers, that he complained of the improper service in his original opposition papers. The Court has reviewed the original opposition papers and cannot find this complaint. Notably, the original opposition was timely filed, tending to show it was received. Defendant did, however, only serve the reply on the LA PO Box, and not on the South Gate PO Box.

   b. Supplemental Papers

   Plaintiff contends he did not timely file supplemental opposition papers because he did not timely receive Defendant’s reply papers. Importantly, supplemental opposition papers are not permitted per Code. Plaintiff filed supplemental reply papers on 1/31/20 and 2/03/20 for the 2/04/20 hearing. The reply was timely filed on 1/28/20. The fact that Plaintiff had the reply and was able to file supplemental opposition papers by 1/31/20, three days later, tends to show the reply was properly served, in contravention of the above argument. Regardless, again, supplemental opposition papers are not permitted.

   c. New Arguments in Reply

   Plaintiff argues the Court should have considered the supplemental opposition papers because Defendant improperly made new arguments in reply. Defendant argued, in its moving papers, that venue in LA County was improper because it was the only named defendant and venue against it in LA County is not proper. Plaintiff, in opposition, argued venue was proper in LA County because an unnamed but identifiable doe defendant resides in LA County. Defendant, in reply, argued that an unnamed but identifiable doe defendant’s residence cannot support venue. This is not a new argument in reply. This si a direct response to the position set forth in the opposition. This is the very purpose of a reply brief.

   d. Supplemental Papers

   While supplemental papers are not permitted, the Court has, in an abundance of caution, looked at the supplemental opposition papers filed by Plaintiff. The Court finds the 1/31/20 supplemental opposition brief merely re-states the arguments made in the original opposition. The 2/03/20 supplemental opposition argues (a) there was no attempt by Defendant to meet and confer prior to filing this motion, and (b) there is a police report showing venue is proper in LA County.

1. Analysis

   There are no new facts, circumstances, or law in the motion for reconsideration. At most, there is a reiteration of the prior supplemental papers, which largely regurgitated the prior opposition. The Court therefore finds reconsideration is not proper per CCP ;1008. More importantly, even if the Court were to consider all of the new arguments, evidence, and analysis, nothing would change. The Court previously analyzed the case law governing the effect of including doe defendants in a lawsuit for purposes of analyzing venue. Plaintiff has not, to date, identified or named a doe defendant in this lawsuit. Under the current state of the law, an unnamed doe defendant cannot support venue in the unnamed doe defendant’s county of residence. The fact that Plaintiff appears to have a general idea of who this unnamed doe defendant is does not change that analysis. As the Court previously ruled, venue is not proper against the only named defendant in LA County, and therefore the motion to transfer venue was necessarily granted.

   The Court does note that the supplemental papers contain argument, which was missing in the original opposition papers, concerning attempts to meet and confer. Plaintiff’s original opposition brief argued that sanctions were not appropriate for various reasons, but did not argue there was as insufficient attempt to meet and confer. Plaintiff’s attorney’s declaration briefly mentioned lack of meet and confer, but the opposition brief did not address the issue. Plaintiff was obligated to fully brief this issue in the opposition brief. There was no excuse for the failure to do so. The sanctions order stands.

   The motion for reconsideration is denied. There are no new facts, circumstances, or law presented, and nothing in the motion for reconsideration supports a result different from the original ruling.

   Plaintiff 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. If the parties do not submit on the tentative they should arrange to appear remotely.

   Dated this 23rd day of July, 2020

Case Number: ****8771    Hearing Date: July 09, 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. 2/04/20 Motion to Transfer Venue

   On 2/04/20, the Court heard Defendant’s motion to transfer venue. The Court issued the following tentative ruling prior to the hearing, and ultimately adopted the tentative as the final ruling on the motion:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

1. Motion for Reconsideration

   On 2/25/20, Plaintiff filed this motion for reconsideration of the 2/04/20 order granting Defendant’s motion to transfer venue. Plaintiff argues there are new facts, circumstances, or law that justify reconsideration of the prior order. Specifically, Plaintiff contends (a) the motion and reply were served at the wrong address and were therefore void, (b) the reply was improper and introduced new arguments, and (c) the Court erroneously refused to consider Plaintiff’s supplemental papers, which Plaintiff filed upon receipt of the improper reply.

1. Address

   Plaintiff’s first argument is that the opposition and reply were improperly served at an incorrect PO Box address. Defendant’s proof of service of the motion papers shows Defendant served Plaintiff via service on his attorney at PO Box 411581, LA, CA 90041. The proof of service also lists service on Plaintiff at his personal address of PO Box 722, South Gate, CA 90280.

   Plaintiff originally appeared in this action by filing his complaint in pro per. The complaint listed PO Box 722, South Gate, CA 90280 as Plaintiff’s mailing address. Plaintiff’s current attorney, Robert Guevara, substituted into the action on 9/30/19. Plaintiff’s attorney listed PO Box 722, South Gate, CA 90280 as his address on the substitution form. On 1/17/20, when Guevara filed opposition to the motion to transfer venue, Guevara again listed the South Gate PO Box on the caption of his pleading. Guevara continues to use this address on his moving papers in connection with this motion. It is not clear how or why Plaintiff, in pro per, and his current attorney, use the same South Gate PO Box.

   Plaintiff now complains that Defendant did not serve him with the reply at his attorney’s correct address. As noted above, the original moving papers include proof of service at BOTH addresses. Plaintiff states, at page 6, lines 24-25 of his moving papers, that he complained of the improper service in his original opposition papers. The Court has reviewed the original opposition papers and cannot find this complaint. Notably, the original opposition was timely filed, tending to show it was received. Defendant did, however, only serve the reply on the LA PO Box, and not on the South Gate PO Box.

   b. Supplemental Papers

   Plaintiff contends he did not timely file supplemental opposition papers because he did not timely receive Defendant’s reply papers. Importantly, supplemental opposition papers are not permitted per Code. Plaintiff filed supplemental reply papers on 1/31/20 and 2/03/20 for the 2/04/20 hearing. The reply was timely filed on 1/28/20. The fact that Plaintiff had the reply and was able to file supplemental opposition papers by 1/31/20, three days later, tends to show the reply was properly served, in contravention of the above argument. Regardless, again, supplemental opposition papers are not permitted.

   c. New Arguments in Reply

   Plaintiff argues the Court should have considered the supplemental opposition papers because Defendant improperly made new arguments in reply. Defendant argued, in its moving papers, that venue in LA County was improper because it was the only named defendant and venue against it in LA County is not proper. Plaintiff, in opposition, argued venue was proper in LA County because an unnamed but identifiable doe defendant resides in LA County. Defendant, in reply, argued that an unnamed but identifiable doe defendant’s residence cannot support venue. This is not a new argument in reply. This si a direct response to the position set forth in the opposition. This is the very purpose of a reply brief.

   d. Supplemental Papers

   While supplemental papers are not permitted, the Court has, in an abundance of caution, looked at the supplemental opposition papers filed by Plaintiff. The Court finds the 1/31/20 supplemental opposition brief merely re-states the arguments made in the original opposition. The 2/03/20 supplemental opposition argues (a) there was no attempt by Defendant to meet and confer prior to filing this motion, and (b) there is a police report showing venue is proper in LA County.

1. Analysis

   There are no new facts, circumstances, or law in the motion for reconsideration. At most, there is a reiteration of the prior supplemental papers, which largely regurgitated the prior opposition. The Court therefore finds reconsideration is not proper per CCP ;1008. More importantly, even if the Court were to consider all of the new arguments, evidence, and analysis, nothing would change. The Court previously analyzed the case law governing the effect of including doe defendants in a lawsuit for purposes of analyzing venue. Plaintiff has not, to date, identified or named a doe defendant in this lawsuit. Under the current state of the law, an unnamed doe defendant cannot support venue in the unnamed doe defendant’s county of residence. The fact that Plaintiff appears to have a general idea of who this unnamed doe defendant is does not change that analysis. As the Court previously ruled, venue is not proper against the only named defendant in LA County, and therefore the motion to transfer venue was necessarily granted.

   The Court does note that the supplemental papers contain argument, which was missing in the original opposition papers, concerning attempts to meet and confer. Plaintiff’s original opposition brief argued that sanctions were not appropriate for various reasons, but did not argue there was as insufficient attempt to meet and confer. Plaintiff’s attorney’s declaration briefly mentioned lack of meet and confer, but the opposition brief did not address the issue. Plaintiff was obligated to fully brief this issue in the opposition brief. There was no excuse for the failure to do so. The sanctions order stands.

   The motion for reconsideration is denied. There are no new facts, circumstances, or law presented, and nothing in the motion for reconsideration supports a result different from the original ruling.

   Plaintiff 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. If the parties do not submit on the tentative they should arrange to appearremotely.

   Dated this 9^th day of July, 2020

Case Number: ****8771    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.