Opinion
G039302.
4-25-2008
DAVID FINK, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; MOSES SHEMTOV et al., Real Parties in Interest.
David Fink, in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Parties in Interest.
NOT TO BE PUBLISHED
INTRODUCTION
Petitioner David Fink filed a complaint for breach of contract and fraud in Orange County Superior Court. Real party in interest Moses Shemtov filed a motion to transfer the case to Los Angeles County Superior Court. The trial court granted the motion under Code of Civil Procedure section 395 on the ground all defendants reside in Los Angeles County. (All further statutory references are to the Code of Civil Procedure.)
We construe Finks purported appeal from the order granting the motion to transfer as a petition for writ of mandate; we grant Finks petition. In a breach of contract action, section 395, subdivision (a) provides that venue is proper, inter alia, in the county "where the contract in fact was entered into." The uncontroverted evidence before the trial court showed the alleged contract was entered into in Orange County. Therefore, the action was properly filed in Orange County Superior Court.
BACKGROUND
Fink filed a complaint in Orange County Superior Court for breach of contract and fraud against Moses Shemtov, Mary Shemtov, S&E Stone, Inc., and Amota Properties, LLC. The complaint alleged that in 2005, Stone Center Corporation (Stone Center), located in Santa Ana, extended Moses instant credit to purchase a total of $81,236.70 worth of merchandise, in exchange for Mosess agreement to complete and return Stone Centers credit contract. The complaint further alleged Moses neither returned the completed credit contract nor paid for the merchandise. Stone Center assigned its claim to Fink.
Moses filed a motion to transfer the action to Los Angeles County Superior Court on the grounds none of the defendants resides in Orange County, the alleged contract was made in and was to be performed in Los Angeles County, and the convenience of witnesses and the ends of justice would be promoted by such a transfer. Moses further sought an order imposing sanctions against Fink in the amount of $5,440 for costs and attorney fees he incurred in making the motion to transfer.
Moses, Mary, and defendants attorney filed declarations in support of the motion to transfer which showed: (1) Moses and Mary are residents of Los Angeles County; (2) neither Moses nor Mary has ever been a resident of Orange County; (3) S&E Stone, Inc., and Amota Properties, LLC, are California corporations and both have their principal place of business in Los Angeles County; and (4) the invoices issued following the subject transaction identify a Los Angeles County address as the billing and delivery address.
In opposition, Fink produced the declaration of Stone Centers president, Allan Lan, which stated: (1) on August 30, 2005, Moses walked into Stone Centers place of business in Orange County and requested to purchase $54,581.50 in merchandise by paying $16,368.69 in cash and placing the remainder on credit; (2) Stone Center permitted Moses to purchase merchandise on credit in exchange for his agreement to complete and return a Stone Center credit agreement; (3) Moses maxed out the account within 14 days of Stone Center providing him credit, by purchasing a total of $81,236.70 in merchandise; and (4) Moses neither paid for the merchandise nor completed and returned the Stone Center credit agreement.
The trial court granted Mosess motion to transfer and ordered the case transferred to Los Angeles County Superior Court, stating: "[Section] 395[, subdivision] (a) states that except as otherwise provided by law, 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. [¶] Per [section] 395[, subdivision] (b) in an action arising from an offer or provision of goods, the superior court in the county where the buyer or lessee in fact signed the contract, where the buyer or lessee resided at the time the contract was entered into, or where the buyer or lessee resides at the commencement of the action is the proper court for the trial of the action. [¶] R[esponding]P[arty] presents Stone Pres[ident] Lan Dec[laration] which states that defendant never signed the contract. [¶] M[oving ]P[artys] declarations state that D[efendant]s reside in L[os ]A[ngeles], the assignors princip[al] place of business is in LA and the shipping address for the product is in LA. Venue is proper in LA County where D[efendant]s reside. [¶] It does not appear that the venue was selected in bad faith. Therefore, notwithstanding the failure to stipulate to transfer, [section] 396[, subdivision] (b) fees and costs will not be awarded."
Fink filed a notice of appeal from the order transferring the case to Los Angeles County Superior Court.
APPEALABILITY
Fink appeals from the order granting the motion to transfer. Such an order is reviewable only by a petition for writ of mandate filed within 20 days after service of a written notice of the order. (§ 400; Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 41.) Fink contends he was never served with a written notice of the courts order granting the motion to transfer. The record does not contain evidence Fink was so served. We therefore construe Finks appeal as a timely petition for writ of mandate.
DISCUSSION
Section 395, subdivision (a) provides in relevant part: "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 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."
While Mosess motion to transfer was supported by evidence establishing his residence in Los Angeles County, the motion was not supported by evidence establishing where the parties alleged contract underlying Finks claims was entered. In opposition to the motion, Fink produced Lans declaration which contained uncontroverted evidence the alleged agreement between Moses and Finks assignor Stone Center, whereby Stone Center agreed to extend Moses immediate credit in exchange for his agreement to complete and return a credit agreement, occurred on August 30, 2005 at Stone Centers place of business in Orange County. As the alleged contract was entered in Orange County, Orange County Superior Court is a proper venue for this lawsuit under section 395, subdivision (a).
In granting the motion to transfer, the trial court relied on the venue provision contained in section 395, subdivision (b) pertaining to actions "arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use . . . ." (Italics added.) This portion of section 395, subdivision (b) is inapplicable as neither the complaint nor any evidence produced in connection with the motion to transfer showed Mosess purchase of merchandise or receipt of credit from Stone Center was intended primarily for personal, family or household use.
If anything, the record shows to the contrary. The two invoices issued in connection with Mosess purchases, which were attached to the complaint and produced in support of the motion to transfer, identify a billing and shipping address to "S & E" corporation at the same address where Moses stated in his declaration he has been employed for over 15 years. If the merchandise Moses purchased and/or the credit secured from Stone Center was intended for personal, family, or household use within the meaning of section 395, subdivision (b), it was Mosess burden in bringing the motion to transfer under section 395 to establish whatever facts were necessary to justify transfer. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 929.) He failed to do so.
Although we grant the petition for writ of mandate and direct the trial court to vacate its order granting the motion to transfer, we must comment on several deplorable statements contained in the opening brief personally attacking the trial judge in this case. These comments by Fink are without any basis whatsoever and are inexcusable. Furthermore, such comments are distracting and unhelpful in the resolution of the issue presented on appeal. We trust that in the future, Fink will conduct the prosecution of his lawsuit in a responsible, courteous and civil fashion.
DISPOSITION
Let a peremptory writ of mandate issue, directing the trial court to vacate its order granting the motion to transfer and make an order denying that motion. Petitioner shall recover costs on appeal.
We Concur:
Sills, P. J.,
Ikola, J. --------------- Notes: We refer to Moses and Mary Shemtov by their first names for the purpose of clarity and to avoid confusion; we intend no disrespect.