Wilson
Court
Filed 3/8/13 Wilson v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
WILLIAM C. WILSON et al.,
Petitioners,
v.
THE SUPERIOR COURT
OF LOS ANGELES
COUNTY,
Respondent;
SAN MARINO
SKILLED NURSING & WELLNESS CENTRE, LLC,
Real
Party in Interest.
B242852
(Super. Ct.
No. BC483169)
ORIGINAL
PROCEEDING. Petition for writ of
mandate. Richard Fruin, Judge. Petition granted.
Klinedinst,
Heather L. Rosing, Daniel S. Agle and E. Erin Veit for Petitioners.
No
appearance for Respondent.
Dempsey &
Johnson, Michael D. Dempsey and Rebecca A. Asuan-O’Brien for Real Party in
Interest.
William C. Wilson (Wilson)
and his law firm Wilson Getty LLP (collectively “petitionersâ€) are the
defendants in an action pending in Los Angeles Superior Court. They have filed a petition for writ of mandate
challenging an order denying their motion to transfer venue of the pending
action to San Diego County. After considering their petition, this court
concluded that San Diego County
was in fact the proper venue for the pending action. Accordingly, this court issued an order
pursuant to Palma v. U.S. Industrial
Fasteners Inc. (1984) 36 Cal.3d 171, 180 (Palma), notifying the superior court that we intended to issue a
peremptory writ in the first instance unless the superior court vacated its
denial order and issued a new order transferring the action to San Diego
County. As part of the
this court issued a temporary stay of all proceedings in the pending action.
After
a hearing on the matter, the superior court notified this court of its decision
not to comply with our order issued pursuant to
interest, San Marino Skilled Nursing & Wellness Centre, LLC (San Marino
Centre) to file a response to the petition for writ of mandate. Neither petitioners nor San Marino Centre
have requested oral argument before this court.
We
hereby issue a peremptory writ in the first instance directing the superior
court to vacate its order denying petitioners’ motion to transfer venue of the
underlying action to San Diego County, and issue a new order granting said
motion. The temporary stay is now lifted
and the matter may proceed in accordance with the present decision.
San Marino Centre
sued petitioners for legal malpractice in Los Angeles Superior Court. The amended complaint alleged the following:
On
or about November 1, 2008, San Marino Centre leased a skilled nursing facility
in the City of Pasadena known as the San Marino SNF. At the same time, San Marino Centre and
Country Villa Service Corp. (Country Villa) entered into an agreement under
which Country Villa managed the day-to-day operations and finances of San
Marino SNF and provided care to the patients of San Marino SNF. The agreement contained an indemnification
provision that obligated Country Villa to indemnify San Marino Centre for any
damages arising from Country Villa’s gross negligence, recklessness, or willful
misconduct.
In
2010, Samuel Nevarrez sued San Marino Centre and Country Villa, alleging that
while he was a patient at the San Marino SNF, he fell nine times and suffered
severe head injuries.
name="_ftnref1" title="">[1] Pursuant to the indemnification provision,
Country Villa called upon its regular attorney, Wilson, to defend Country Villa
and San Marino Centre in the Nevarrez personal injury action. Wilson is a partner at the law firm of Wilson
Getty, LLP, which is a limited liability partnership with its place of business
in San Diego County.
The
matter was tried in Los Angeles Superior Court.
A jury issued a verdict in favor of Nevarrez and found San Marino Centre
and Country Villa jointly and severally liable for over $2 million.
After
San Marino Centre filed its malpractice action against petitioners, petitioners
moved to transfer the action to San Diego County. In support of their motion, petitioners put
forth a declaration by Wilson made under penalty of perjury. In this declaration, Wilson averred
that: In or about May 2010, Wilson spoke
on the telephone with the general counsel (GC) of Country Villa about the
Nevarrez action that had been filed against Country Villa and San Marino
Centre. During the telephone call, which
took place while Wilson was sitting in his office in San Diego, Wilson agreed
to represent Country Villa and San Marino Centre in the Nevarrez action. There was no engagement agreement or contract
signed regarding Wilson’s representation of San Marino Centre in the Nevarrez
Diego and the offices of William Getty, LLP, were located in San Diego County.
In
opposition to the transfer motion, San Marino Centre submitted a declaration by
its attorney, Michael Dempsey. In this
declaration, also made under penalty of perjury, Dempsey averred that he
intended to call multiple witnesses from Los Angeles County to testify in the
malpractice action, that “relevant documents†are located in Los Angeles
County, that the trial court and appellate court
that the only anticipated witnesses from San Diego County are Wilson and expert
witnesses.
The
superior court issued a tentative ruling denying the motion to transfer venue,
reasoning:
“[Code
of Civ. Proc., §] 395 provides:
‘. . . 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 . . . is a proper court for the trial on an
action founded on that obligation . . .’
CCP 395(a) then adds: ‘. . . and
the county where the obligation is incurred is the county where it is to be
performed.’â€
“The
action arises from plaintiff’s hiring of defendants to represent plaintiff in a
legal action filed in Los Angeles County.
The hiring was not memorialized by a writing. The legal action in which defendants
represented plaintiff was filed and tried to verdict in Los Angeles
County. Plaintiff now brings suit
against defendants for their alleged negligent performance of that
obligation. The action, therefore, is
properly sited in Los Angeles County because that is where the obligation was
performed and, therefore, where the alleged legal malpractice occurred.â€
At
the hearing, counsel for petitioners argued that courts have interpreted the
phrase “where the [contractual] obligation is incurred†to mean “where the
contract is entered into†and, here, San Diego County is where the contract was
entered into. The superior court
rejected that argument, stating: “I
think ‘incurred’ means where the performance is to occur.†After the hearing, the court declared its
tentative ruling to be the final ruling.
Discussion
Standard of Review
A
party aggrieved by an order granting or denying a motion to change the place of
trial may petition this court for a writ of mandate requiring trial of the
matter in the proper court. (Code Civ.
Proc., § 400)
title="">[4] “An appellate court reviews such an order
under the abuse of discretion standard.
[Citation.] A trial court abuses
its discretion when venue is mandatory in a county other than the county where
the action has been brought.†(
138 Cal.App.4th 951, 954.) In cases
where our review of a superior court’s decision on a motion to transfer “is
predominantly legal,†a de novo standard review is appropriate. (Kennedy/Jenks
Consultants, Inc. v. Superior Court (2000) 80 Cal.App.4th 948, 959.)
B. Section 395, subdivision (a)
Section
395, subdivision (a) provides in relevant part:
“[I]f
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.†(Emphasis added.)
At
first glance, section 395, subdivision (a) appears to set forth three
county in which an action based on an alleged breach of contract should be
filed: (1) the county where the
obligation is to be performed; (2) the county where the contract was entered
into; or (3) the county where the defendant or any defendant resides at the
commencement of the action.
The
Supreme Court in Dawson v. Goff
(1954) 43 Cal.2d 310 (Dawson)
explained, however, that the first and second axes mean the same thing
specifying that the place of performance is some place other than where the
contract was entered into. This is
because the final clause of section 395, subdivision (a)
obligation is to be performed as the county where the obligation is incurred,
or entered into, unless there is a specific written contract to the
contrary. (See Dawson, supra, at p. 315
[“Under the section[,] the county where the contract is made is deemed to be
the county where it is to be performed unless there is a special contract in writing
to the contraryâ€].)
Thus,
the Supreme Court explained about section 395, subdivision (a): “The section in effect says that
‘. . . all actions arising on contract shall be tried in the
county in which the defendant resides, or in which the contract was made,
unless the defendant has contracted specifically and in writing as to the
county in which his obligation is to be performed, in which event such county
is also a proper county for the trial of action.â€â€™ (Dawson,
supra, 43 Cal.2d at pp. 314-315,
citing Armstrong v. Smith (1942) 49
Cal.App.2d 528, 532.) Stated another
way, “[t]he counties in which an action on the contract may be tried are two,
that of defendant’s residence or where the contract is made, unless there is a
special contract in writing to the contrary.â€
(Dawson, supra, at
p. 315; see also Mitchell v. Superior
Court (1986) 186 Cal.App.3d 1040, 1045-1046 [in an action founded on
contract, “the general rule is that only two proper venues exist: the county where the contract was entered
into (obligation incurred) and the county of defendant’s residence. A third proper venue will arise only when
there is ‘special contract in writing to the contrary’â€].)
Here,
there is no dispute that petitioners and San Marino Centre did not have a written
contract specifying that the place of performance was different than the place
where the obligation was entered into or incurred. Thus, under section 395, subdivision (a), the
place of performance was the place
that the contract was entered into. And,
here, the contract was “entered into†in San Diego County because that is where
Wilson accepted the telephonic offer made by Country Villa to represent Country
Villa and San Marino Centre in the Nevarrez lawsuit. (See Wilson
v. Scannavino (1958) 159 Cal.App.2d 369, 371 [‘“The law is that a contract
made by telephone is entered into at the place where the recipient of the call
is at the time he accepts the offerâ€â€™].)
In
its response to the petition for writ of mandate, San Marino Centre claims
petitioners “did not confirm they had undertaken to represent San Marino until
they filed an answer to the complaint in the Underlying Action in
Pasadena.†But San Marino Centre cites
no legal authority, and this court did not come across any such authority in its
own research, that supports the proposition that an attorney’s obligation to
represent a client is only “confirmed†when that attorney files an answer, or
some other court filing. Indeed, such a
proposition would mean that even if an attorney agrees to represent a client,
that attorney is under no contractual obligation to do so until he or she files
a responsive pleading or some other document with a court, a dubitable
proposition at best.
C. Additional Arguments
San Marino Centre
argues that even if this court disagrees with the superior court’s
interpretation of section 395, subdivision (a), there are “additional
independent reasons to uphold the denial of [petitioners’] motion to transfer
venue.â€
First,
San Marino Centre argues that petitioners are equitably estopped from relying
on the fact that there is no written instrument specifying where the contract
was to be performed because petitioners did not fulfill their ethical
obligation under the California Rules of Professional Conduct, rule 3-310, to
provide a written disclosure to San Marino Centre that petitioners were
representing two parties with potentially adverse interests.
This
argument misses the mark. Even if
petitioners had presented a written disclosure about the potential conflict of
interest stemming from their simultaneous representation of Country Villa and
San Marino Centre, there is absolutely no requirement under rule 3-310 that
this written disclosure indicate a specific place of performance for the
contract between petitioners and San Marino Centre. Undoubtedly, petitioners’ failure to provide
this written disclosure will be relevant to the merits of the malpractice
action. However, it is irrelevant to the
issue of whether petitioners had a duty to provide San Marino Centre with a
written contract specifying that the place of performance would be different
from the place the obligation was incurred.
Second,
San Marino Centre argues that the superior court did not err by denying the
motion to transfer venue because section 397, subdivision (c) empowers the
court to keep the action in Los Angeles County to promote the convenience of
witnesses and the ends of justice.
Section
397, subdivision (c) grants a superior court discretion to transfer an action
that is filed in a proper county to
another county “[w]hen the convenience of witnesses and the ends of justice
would be promoted by the change.†But,
that statutory provision does not grant a court the power to retain a case that
has been improperly filed to begin with.
(See Civil Procecure Before Trial (The Rutter Group 2012) ¶¶
3:551-3:553,
pp. 3-134 & 3-135 (rev. #1, 2011).)
While San Marino Centre may very well be able to make a compelling
argument that the convenience of witnesses and the ends of justice would be
promoted by trying the case in Los Angeles, that argument is for the superior
court in San Diego County to consider once the action is transferred to that
court.
DISPOSITION
Let a peremptory writ of mandate
issue directing the superior court to vacate its order denying petitioners’
motion to transfer venue to San Diego County, and to enter a new order granting
said motion. The temporary stay imposed
by this court in its Palma order is
hereby lifted.
title="">[7]
_______________________,
P. J.
BOREN
We concur:
______________________, J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
name="_ftn1" title="">[1] For
brevity, we will refer to the action brought by Samuel Nevarrez as “the
Nevarrez action.â€
name="_ftn2" title="">[2] The
record does not indicate whether or not Wilson memorialized his agreement to
represent Country Villa in a written instrument.
