Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. 09CECG03350, Adolfo M. Corona, Judge.
Moshe Shatzki, in pro. per., for Plaintiff and Appellant.
David S. Hoffman for Defendant and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Detjen, J.
Appellant filed suit in Fresno County alleging fraud, breach of contract, perjury, and embezzlement against respondent. Respondent moved to change venue to Santa Clara County. The court granted the motion. We will affirm.
FACTS
Appellant and respondent lived together in Santa Clara County but were never legally married. After the couple separated and appellant moved to Fresno County, appellant filed a complaint in Fresno County against respondent for fraud, breach of contract, perjury, and embezzlement. Respondent filed a motion to change venue to Santa Clara County. Appellant filed an objection to the motion but filed it five court days late (Code Civ. Proc., § 1005, subd. (b)). In his objection, appellant submitted a declaration stating he “recently had several health problems” which made it difficult for him to travel. He explained that he “[could not] drive [himself] due to recent ongoing eye problems, ” and he was 81 years of age with limited financial resources. He provided two documents as exhibits: (1) a note from his doctor stating that appellant had significant visual problems; and (2) “Senior Meals Program Participation Agreement” indicating he received delivered meals to his home.
Further statutory references are to the Code of Civil Procedure.
The court noted this action was one in a series of lawsuits that appellant had filed against respondent, two of which were filed in Santa Clara County and one filed in Merced County. As noted above, appellant and respondent lived together in Santa Clara County. Respondent resided in Santa Clara County when appellant filed the action, and all of the underlying incidents alleged in the complaint took place there. Prior to filing the motion to change venue, respondent requested appellant stipulate to the change of venue, explaining why venue was proper in Santa Clara County and improper in Fresno County, but appellant refused. The court found that “[appellant’s] selection of venue was not made in good faith given the facts and law of which he knew or reasonably should have known.” The court granted respondent’s motion to change venue to Santa Clara County.
Respondent’s request that this court judicially notice other pleadings appellant has filed was granted on June 21, 2010.
DISCUSSION
Appellant asserts (1) the court should have considered his late-filed objection, citing section 473, subdivision (b), and (2) the court abused its discretion by disregarding his hardship reasons for retaining venue in Fresno County. Neither contention has merit.
Section 473, subdivision (b) states in pertinent part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect….”
First, the court’s order granting the change of venue states “[e]ven if the court were to consider [appellant’s objection], the court would still grant the motion to transfer. As a substantive matter, the Objection fails to rebut [respondent’s] showing that venue is improper in Fresno County and proper in Santa Clara County.” In light of the court’s statement, we decline to decide whether section 473, subdivision (b) applies here.
Second, appellant’s hardship reasons did not compel the retention of venue in Fresno County. For reasons discussed below, the court did not abuse its discretion in granting the motion to change venue.
Pursuant to section 395, subdivision (a), the general venue rule is that “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.” When a plaintiff brings an action in a county in which none of the defendants reside, “an individual defendant has the right to change venue to the county of his or her residence.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 482-483, fn. 6.) The courts have explained, “‘“The right of a defendant to have an action brought against him tried in the county of his residence is an ancient and valuable right, safeguarded by statute and supported by a long line of decisions. The right of a plaintiff to have an action tried in a county other than that of the defendant’s residence is exceptional.”’” (Forster v. Superior Court (1992) 11 Cal.App.4th 782, 791, quoting Kaluzok v. Brisson (1946) 27 Cal.2d 760, 763.) “‘“Where a defendant has made a proper showing of nonresidence, the burden is on the plaintiff to show that the case comes clearly within one of the statutory exceptions to the general rule that actions are triable in the place of the defendant’s residence. [Citation.]”’” (California State Parks Foundation v. Superior Court (2007) 150 Cal.App.4th 826, 833.)
An exception exists under section 397, subdivision (c), where a plaintiff can show that both the convenience of witnesses and the ends of justice will be served by retaining the action in the county where it was filed. (Maxwell v. Murray (1961) 190 Cal.App.2d 440, 443.) Appellant contends that venue should remain in Fresno County where he, the plaintiff, resides due to his age and physical infirmities, which make it difficult for him to travel to and from Santa Clara County. As the trial court noted, “[t]his appears to be an argument that venue should be transferred to Fresno County for convenience of witnesses” under section 397, subdivision (c). Change of venue on the ground of convenience lies essentially within the discretion of the judge and his ruling will not be disturbed unless it clearly appears as a matter of law that there has been an abuse of that discretion. (Edwards v. Pierson (1957) 156 Cal.App.2d 72, 76.)
Moshe Shatzki, a pro. per. appellant, does not expressly cite to section 397, subdivision (c) in his opening brief, but maintains that the trial court should have considered his convenience when determining the proper venue.
Here, appellant never argued for the convenience of witnesses, but only that his own convenience should be considered for retaining venue in Fresno County. The plaintiff’s own convenience, as opposed to witnesses’, cannot be considered upon a motion for change of venue in the absence of unusual circumstances. (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.) Unusual circumstances have been found where “one party’s physical condition will make it impossible or dangerous to his health to travel to a distant county to give material evidence.” (Simonian v. Simonian (1950) 97 Cal.App.2d 68, 69.) In Simonian, changing the place of trial to a plaintiff’s county of residence was not an abuse of discretion where the plaintiff was suffering from a serious heart ailment such that travel would likely threaten his life. Also, since the action involved a partnership dissolution, the testimony of both parties would be material and important. (Ibid.)
There are no such unusual circumstances here. Appellant merely asserted that travel would be inconvenient due to his limited finances, age, and his inability to drive himself. He did not assert that his life would be threatened by traveling to and from Santa Clara County, rendering travel impossible or dangerous. Moreover, appellant did not indicate he would be called as a witness to give material evidence or state what his evidence would be; thus, any inconvenience to him could not have been considered by the trial court. (Peiser v. Mettler (1958) 50 Cal.2d 594, 612.) The trial court also recognized that he had filed several lawsuits against respondent in Santa Clara County, and found that his choice of venue in Fresno County for this action was not made in good faith. The court did not abuse its discretion in granting respondent’s motion to change venue to Santa Clara County.
DISPOSITION
The order granting transfer of venue is affirmed. Costs on appeal are awarded to respondent.