TUTOR PERINI CORPORATION, A MASSACHUSETTS CORPORATION VS SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY. A PUBLIC AGENCY OF THE CITY AND COUNTY OF SAN FRANCISCO

Tentative Rulings

Case Number: *******9556 Hearing Date: January 17, 2023 Dept: 34

SUBJECT: Motion to Change Venue

Moving Party: Defendant City and County of San Francisco

Resp. Party: Plaintiff Tutor Perini Corporation

Defendant’s Motion to Change Venue is GRANTED in part. The Parties shall have 14 days to stipulate in writing or declare in open court their agreement as to county this matter shall be transferred.

The Court sets a Status Conference re change of venue for February 2, 2023.

BACKGROUND:

On September 9, 2022, Plaintiff Tutor Perini Corporation filed its Complaint against Defendants San Francisco Municipal Transportation Agency, a public agency of the City and County of San Francisco on a cause of action for breach of contract.

On October 27, 2022, Defendant filed its Motion to Change Venue. Defendant concurrently filed: (1) Declaration of Ari Baruth; and (2) Proposed Order.

On January 3, 2023, Plaintiff filed its Opposition. Plaintiff concurrently filed Declaration of James A. Frost.

On January 9, 2023, Defendant filed its Reply.

ANALYSIS:

I. Legal Standard

“The court may, on motion, change the place of trial in the following cases:

“(a) When the court designated in the complaint is not the proper court.

. . .

“(c) When the convenience of witnesses and the ends of justice would be promoted by the change.”

(Code Civ. Proc., 397, subds. (a), (c).)

“Generally, when venue is proper in more than one county, a plaintiff has the choice of where to file the action from among the available options. There is a presumption that the county in which the plaintiff chose to file the action is the proper county. The burden rests on the party seeking a change of venue to defeat the plaintiff’s presumptively correct choice of court.” (Battaglia Enter., Inc. v. Superior Court (2013) 215 Cal.App.4th 309, 313–14 [citations omitted].)

II. Discussion

A. The Parties’ Arguments

Defendant moves the Court to change venue to San Francisco Superior Court for the following reasons: (1) that Plaintiff stipulated by contract to venue in San Francisco; (2) that San Francisco Superior Court is the venue of Defendant’s residence; and (3) that aside from a contract modification that was signed in Los Angeles and Plaintiff’s headquarters being in Los Angeles, there is nothing about the contract or this case that connects Los Angeles to this case. (Motion, pp. 4:21, 5:1–17.)

Plaintiff opposes the Motion, arguing: (1) that contract provisions purporting to fix venue in a particularly county are illegal and void; (2) that Los Angeles County is a proper place for trial; (3) that Code of Civil Procedure section 395b has no bearing on this action; (4) that there is no meaningful connection between the contract modification, which was signed in Los Angeles, and San Francisco County for the purposes of the disputes at issue in this case; and (5) that if the Court will transfer the action, Code of Civil Procedure section 394 requires a transfer to a neutral county. (Opposition, pp. 3:19, 4:13, 5:4, 5:12–13, 6:4–5.)

In its Reply, Defendant reiterates its arguments, as well as arguing that Plaintiff’s request in the alternative to transfer this action to a county other than San Francisco is not ripe for consideration.

B. Relevant Provisions of the Code of Civil Procedure

“Except 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.” (Code Civ. Proc., 395, subd. (a).)

“An action or proceeding against a county, or city and county, a city, or local agency, may be tried in the county, or city and county, or the county in which the city or local agency is situated. . . . Whenever an action or proceeding is brought against a county, city and county, city, or local agency, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, or local agency, other than that in which the defendant is situated, the action or proceeding must be, on motion of that defendant, transferred for trial to a county, or city and county, other than that in which the plaintiff, or any of the plaintiffs, resides, or is doing business, or is situated, and other than the plaintiff county, or city and county, or county in which that plaintiff city or local agency is situated, and other than the defendant county, or city and county, or county in which the defendant city or local agency is situated. In that action or proceeding, the parties thereto may, by stipulation in writing, or made in open court, and entered in the minutes, agree upon any county, or city and county, for the place of trial thereof. . . .” (Code Civ. Proc., 394, subd. (a).)

“Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.” (Code Civ. Proc., 396b, subd. (a).)

C. Analysis

The Parties disagree about whether the contract requires the Court to find that Los Angeles County or San Francisco County is the proper venue for this action. However, neither party has provided the Court sufficient evidence to make a determination in favor of either Party. On the one hand, Defendant cites a contract between the Parties but has not provided the Court with a copy of the contract. On the other hand, Plaintiff provides the Court with a copy of the contract modification, but the document provided says nothing about venue or forum. Thus, the Court does not make a finding whether the alleged forum selection clause at issue controls.

Moving to the statutory authorities, multiple issues arise. At first glance, as the contract at issue regards the performance of a contract in the county of San Francisco and as Defendant resided in San Francisco at the commencement of the action, it would appear that San Francisco Superior Court would be a proper court for this action. (Code Civ. Proc., 395, subd. (a).) Notably, under this section of the Code, the Court would still retain the power to transfer actions pursuant to Code section 397. (Id.)

However, there are specific issues that arise because of Defendant’s status as a city and county (or, more specifically, as the agency of a city and county). While an action against a city and county may be tried in that city and county, it need not be. (Code Civ. Proc., 394, subd. (a).) Moreover, when a motion is made by a defendant city and county in an action that was brought against that defendant in a place other than where that defendant is situated, the action or proceeding must be transferred to a county (or city and county) other than that in which the plaintiff resides, does business or is situation, and other than that in which the defendant is situated. (Id.)

Lastly, a defendant may move for an order transferring the action or proceeding to a proper court if a plaintiff brought the action in a court with subject matter jurisdiction that is nonetheless not a proper court. (Code Civ. Proc., 396b, subd. (a).) “Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.” (Id.)

That is exactly the situation here. Plaintiff’s allegations that Plaintiff’s headquarters are in Los Angeles County and that the contract modification was signed in Los Angeles County are irrelevant to the statutory analysis. There is no evidence before the Court that would indicate that the Los Angeles Superior Court is the proper court for this matter, while there is ample evidence in accordance with CCP 395 that San Francisco Superior Court would normally be a proper court. Furthermore, there is no indication based on the allegations that any other court would be a proper court pursuant to statute.

Accordingly, Defendant meets its burden for a change of venue pursuant to CCP 396b. However, Defendant San Francisco Municipal Transportation Agency, a public agency of the City and County of San Francisco, cannot claim that the San Francisco Superior Court is the proper venue due to CCP 394. Due to the Parties’ respective residences, a proper court (as that term is used in the Code) for this action would be neither the Los Angeles Superior Court or the San Francisco Superior Court.

In this situation, “the parties thereto may, by stipulation in writing, or made in open court, and entered in the minutes, agree upon any county, or city and county, for the place of trial thereof.” (Code Civ. Proc., 394, subd. (a).)

The Court GRANTS in part Defendant’s Motion to Change Venue. The Parties shall have 14 days to stipulate in writing or declare in open court their agreement as to which county this matter shall be transferred.

III. Conclusion

Defendant’s Motion to Change Venue is GRANTED in part. The Parties shall have 14 days to stipulate in writing or declare in open court their agreement as to county this matter shall be transferred.

The Court sets a Status Conference re change of venue for February 2, 2023 at which time the parties can report their decision.