Notice of Hearing no fee

Cal. Super. - 6th Dist.January 23, 2018

\0 00 \I'O\ 10 '11 12 13.- i4 15 ‘16 17 ‘18 ‘19 20 21 “2'2: _ 23‘ 24 - 25 26 27 28 - ABHYANKER; g MICHAEL PAPIZ, JON SANDERS, Valerie McConnell (State Bar No. 274159) valerie smearthurlaw corn THE ARTHUR LAW FIRM, P. C. 400 Co Crate Pointe, 3rd Floor Culver ity, CA 90230 Telephone: (323 639- 4455 Direct Line: (91 ) 701- 6267 Attorne s for Defendants, Michae Papiz, J on Sanders, and Stephen McArthur FILED. JAN 29 MB SUPERIOR COURT. OF THE STATE OF CALIFORNIA 5 COUNTY OF SANTA CLARA . . - "I'l' _ ' UNLIMITED JURISDICTION a LEGALF'ORCE RAPC Case 1‘0. 18-CV-321670 ' ‘ I WORLDWIDE P. C. LEGALFORCE, INC. and RAJV Plaintiffs, STEPHEN MCARTHUR AND THE STATE BAR OF CALIFORNIA; Defendants. DEFENDANTS MICHAEL PAPIZ, . JON SANDERS, AND STEPHEN MCARTHUR’ S: _ 1) NOTICE OF MOTION AND ’ . MOTION TO CHANGE _ VENUE TO LOSANGELES COUNTY; AND 2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT _ THEREOF Declaration of Valerie McConnell filed concurrently herewith Date: April 3, 2018 Time. 9: 00 am Dept. 6, Downtown Superior ' ' Courthouse Judge: The Honorable Theodore C. Zayner Case filed January 10, 2018 DEFENDANTS’ MOTION TO CHANGE VENUE Case No. 18- CV- 321670 10 11 12 .1'3 1 14 15 1'6 17 .18 '19. 20 21 22 23‘ 24 26' 27 2'8, 1 NOTICE OF MOTION ‘ V To ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 3, 2018 at 9:00 am before the Honorable Theodore C. Zayner inDepartrnent D-6 of the above-referenced couit, located in ' ' the Downtown Superior Courthouse ODTS) at 191 North First Street, San Jose, California 95113, Defendants Michael Papiz, Jon Sanders, and Stephen McArthur (collectively, “Defendants”) will and .‘hereby do move the Court for an Order transferring venue of this action to Los Angeles County pursuant to California Code of Civil Procedure §§ 395(a) and 396b. , I This motion is based upon this Noticeof Motion, the attached Memorandum of Points- and Authorities, the accornpanying Declaration of Valerie Mcconnell, the pleadings filed in this case, and upon such oral and documentary evidence as may I tie-presented by the-parties upon‘th'e, hearing of this inotion. '-Dated:' January 25, 2018 ' THE MCARTHURA‘LAWFIRM,132C.~ By fay/w / 7 WmZ/ Valerie McConnell , Attorneys for Defendants, Michael Papiz, Jon Sanders, and Stephen McArthur ' DEFENDANTS’ MOTION TO CHANGL VENUE Case No. 18- CV- 321670 10, ll 12. 13 I4 .15 m_ 17' 18 19 20‘ _21' 22 23 .24 a5 26 27 28 11. ’ui TABLE OF CONTENTS INTRODUCUON ........................................................... ;' ................................................ 1 BACKGROUND ................................................................. ' ...... ‘ ......................................... 2 ARGUMENT ...................................................................................................................... 4 A. Unde1 CCP § 395(a), Los Angeles Superior Court is the Proper Court for This Action Because Defendants Reside 1n Los Angeles ......... 4 -B. T here is No Statutory Basis to Support Venue in Santa Clara County. ............. 5 l. The Contracts that Mr Papiz and Mr. Sanders Allegedly Signed Do _ Not Confer Venue 1n Santa Clara County...‘ ............................................... 5 2. Plaintiffs‘ Allegations Regarding the Locations of Witnesses Do Not Confer Venue in Santa Clara County 11 3. The improper joindei of the State Bar of California does not confer venue in Santa Clara County ..................................................................... 12 C. The Court Must Transfer This Action to the Proper Court, Los Angeles ............. 13 D. The Court Should Award Attoméys’ Fees and Costs to Defendants for Plaintiffs’ Refusal to File This Case in the Proper. Court. . - 13 Conclusion ......... ................... ‘ ......... g .................... l4 DEFENDANTS' MOTION TO CHANGE VENUE 11 ' ' CaseNo.18'CV-321670 TABLE OF AUTHORITIES Alexander v. Superior Court, 114 Cal. App. 4th 723 (2003)....;..................: ................................... 9 All-CoolAluminum Awning C0. vlSuperio‘r Court ofK'ern Cty., 224 Cal. App. 2d (1964)....... 10 Anaheim Extrusion Co. v. Superior Court 170 Cal. App. 3d 1201 (1985) ...................................... 6 Archer v. Superior Court ofHumbo/dt Cty., 202 Cal. App. 2d 417 (1962).:...........: ....................... 6 Arntz Builders v. Superior Court, 122 C31. App. 4th 1195 .(2004). ............................................... 10 Braunstein v. Superior Court ofMonterey Cty., 225 Cal. App. 2d 691 (1964)...................:.- .......... 6 Brown- -v Happy Val. Fruit Growers 206 Cal 515. (1929) .................................. 4 Dilllnan v. Superior Court ofL.A. Cty., 205 Cal. App. 2d 769 (1962) ......... ' ................................. 1 o Dreher v. Fid. & Cas. Co., 148 Cal. App. 2d 695 (1957) ....... , ........ . ............................................... l 2 Eyeleth v, Am. Brass & Iron Foundry, Plastics Div., 203 Cal. App. 2d 41 ('1962)‘ ....................... 13 ‘ . Gen. Acceptance Corp. v. Robinson, 207 Cal. 285 (1929) ...... ...... I ............ -....' ....... 8 Hawk v. State Bar, 45 Ca1.3d 589 (1988) ................................. . ..... 1.... ....... 8 Kaluzok v. Brisson 27 Cal. 2d 760 (1946) ........ ........... ' ............................. L. 4 Lawrence v Walzer & Gabrielson, 207 Cal. App. 3d 1501 (1989) ..................................... j ............ 8 Mosbyv. Superior Court 43 Cal. App. 3d 219 (1974)...............L ............. '. ........... ....... ............. 4' San Jose Ice & Cold Storage Co. San Jose, 19 Ca]. App. 2d 62 (1937) .................................... 13 South v. Wishard 123 Cal. App. 2d 642 (1954)...... ...................................................................... 13 ' - Taffv. Goodman,41 Ca1.App.2d 771 (1940) ........................... ' .................... ' ........... ‘ ..................... 1 3 Wardg. Co. v. Miley, 131 Cal. App. 2d 603 (1955) ...... . - Windsor Mills, Inc. v. Collins &Aikman Corp, 25 Cal. App. 3d 987 (1972) ................................ '. 8 Statutes . _ . CCP § 395(a) ........................................ ............ ;.- ......... ' .......................... 4, 5, 13 CCP § 396b(b) ....................... . ............................. Z ..................................................... 14 CCP § 397(c) ..................... 11 ' , CCP §39s.5 ............................................................. ..... 1o CCP, § 396b(a) ....... ........................ 3... ................ ;- ........ 13 DEFENDANTS’ MOTION TO CHANGE VENUE Case No. 18-CV-321670 -111- oo;\JO\UI-J>- \D 10 11 12 13 i4 15 _16 17 18 ’19 20 21 ,22 “23 25. _26 1' 27 28 MEMORANDUM OF POINTS AND AUTHORITIES - I. INTRODUCTION Defendants lViichael Papiz, Jon Sanders, and Stephen McAithur (collectively, “Defendants”) respectfully request that this action be'transferred to the county in which it should'have been brought: Los Angeles. Plaintiffs’ case against- ' Defendants must be litigated in Los Angeles County Superior Court in accordance with Califomia Code of Civil Procedure (“CCP") § 395(a) because Defendants . reside in Los Angeles. Plaintiffs’ First Amended Complaint does not provide any basis for departing from the general rule that venue is proper where the Defendants reside. None of the statutory exceptions to CCP § 395(a) apply to. Plaintiffs’ First . Amended Complaint, which asserts claims for “an order compelling arbitration,” ‘ declaratory relief, defamation, and interference with prospective economic relations. ‘ In fact, Plaintiffs’ First Amended Complaint expressly concedes that Defendants reside in Los Angeles County. See First Amended Complaint (“FAC”) at W 33-35. Despite this significant concession, Plaintiffs contend that venue is proper in Santa Clara County for three incorrect reasons. First, Plaintiffs erroneously allege-that venue is proper in Santa Clara County because two of the Defendants, Mr. Papiz and Mr. Sanders, allegedly signed agreements with Plaintiffs to retain their legal services, See FAC, 1H] 18-19; 21-22. However, there are no allegations that Mr Papiz or Mr. Sanders ever signed the alleged contracts in Santa Claia County or were supposed to perform any contractual obligations 1n Santa Clara County Therefore, there 15 no basis for conferring venue in this county under CCP § 395(a). _ Second, Plaintiffs allege that venue is proper in Santa Clara County because witnesses, including ‘fimnamed” witnesses to Plaintiffs’ defamation claim, “likely reside in or near” Santa Clara County. FAC, 1H] 17, 26-27. Plaintiffs’, specious assertion that unidentified witnesses “likely reside in or near” Santa Clara County is DEFENDANTS' MOTION TO CHANGE VENUE 1 Case No. lS-CV-321670 14 1'5 16 17 ‘18 i9 20 ,21 22 23 ‘25 26 27 28 not a. proper basis for departing from the venue rules of CCP § 395(a); Finally, Plaintiffs attempt to skirt the venue rules of CCP § 395(a) by improperly naming the State Bar of. California as a defendant. Plaintiff Raj IAbhyariker explained to defense counsel that he added the State Bar of California as a defendant to Plaintiffs’ First Amended Complaint to overcome Defendants’ venue objections. See Declaration of Valerie McConnell, filed concurrentlyherewith (“McConnell Decl.”) at 1“] 3-4. Plaintiffs’ improper joinder of the State-Bar of California does not deprive Defendants of their statutory right to have this case _ . brought against them in the county in which they reside. Moreover, the State Bar of California does not reside in Santa Clara County. According to Plaintiffs’ own allegations, the State Bar of California has a “principal place of business at 180 Howard Street, San Francisco, CA 94105.” See FAC, fl 36. Accordingly, there is no basis for allowing this lawsuit to proceed in' Santa Clara County, and this case must be transferred to Los Angeles County in accordance with CCP § 395(a) II. BACKGROUND _ _ Plaintiff Raj V'. Abhyankeris a Californialicen‘sed attorney who owns a law firm, LegalForce Worldwide, PC. and runs a legal services company, LegalForce, Inc, which does business under the name “Trademarkiacom.” Mr. Abhyanker has named himself, his law firm, and his legal services company as Plaintiffs in this action, In the original complaint, filed on Janu‘ary,10',.2'0'18, Plaintiffs asserted ”claims against Defendants for “an order to Compel arbitration” and "declaratory relief,” arising from Plaintiffs’ provision of legal services to two of the Defendants, Mr. Papiz and Mr. Sanders. _‘ The original complaint acknowledged that Defendants reside in'Los Angeles County, but alleged that venue was proper in Santa Clara County because Mr. Sanders and Mr. Papiz had signed engagement letters for Plaintiffs’ legal services, and Plaintiffs have offices in Santa Clara County. ‘ Defendants do not concede that“ an order to compel arbitration,” or any of Plaintiffs’ othei claims, are proper causes of action but simply recites them here so that the Court may make a preper venue determination. DEFENDANTS' MOTION TO'CHANGE VENUE Case No. l8-CV-321670 \D 00 \1 ON 10 '11 12 13' 14 15 16. 17 ’18_ 19 20 8' '21 ‘22 23 24 25 26 27 '28 on January 19, 2018, counsel for Defendants met and conferred with Mr. Abhyanker regarding Defendants’ objections to the complaint and asked Mr. Abhyanker if he would change venue to Los Angeles County based on CCP § ' 395(a). McConnell Decl at ‘1 2 Mr Abhyanker refused and instead filed the First Amended Complaint on January 23, 2018. 1d. at 1] 6. I The First Amended Complaint asserts four causes of action: (1) an “order compellingarbitration” against Mr; l’apiz and Mr. Sanders; (2) alclaim for _ declaratory relief against the State Bar of California; (3) a claim for defamation against Defendant Stephen McArthur, and (4) a claim for intentional interference with prospective economic advantage against Mr. McArthur. Curiously, none of the claims against Mr. McArthur share a single common factual basis with the claims against the other three defendants. The claims against Mr. McArthur, who serves as outside counsel to Mr. Papia and Mr. Sanders, appear to be a transparent attempt. to create a conflict from continuing to represent them. The First Amended Complaint also purports to sue the State Bar of California for ’ declaratory relief but fails to assert any factual allegations at all supporting this claim. In addition to being unrelated to one another, the claims in the First Amended ~ Complaint do not confer venue in Santa Clara County. Plaintiffs’ First‘Amended Complaint expressly acknowledges that Mr. Papiz, Mr. Sanders, and Mr. McArthur all reside in Los Angeles County. Specifically, paragraph 33 of the Amended Complaint states that Mr. Papii has a “primary home address at 3344 Bagley Avenue, Apartment 1, Los Angeles'90034.” Paragraph 34 of the Amended Complaint'states that Mr. Sanders has a “primary, home address at 3344 Bagley , Avenue, Apartment 1, Los Angeles 90034.” Paragraph 35 of the Amended Cemplaint states that Mr. McArthur, a Califomia licensed attorney, has a principal place ofbusiness at 11400 W. Olympic Blvd Suite 200, Los Angeles, CA 90064. Plaintiffs also allege that the State Bar of California has a ‘principal place of DEFENDANTS' MOTION TO CHANGE VENUE 3 Case No 18- CV- 321670 J; \O 00 \l ’0\ U1 10 11 12 13 '14 15 16 17. 18 ‘19 20. 21 22 .23 24 25 26 27 ‘28 business at .180 Howard Street,ISan Francisco, CA 94105.” FAC, 1] 36. In sum, the- First Amended Complaint concedes that none of the Defendants reside in Santa Clara County. , . Nonetheless, Plaintiffs argue that venue is proper in Santa Clara County because Defendants “subjected” themselves to “the venue and jurisdiction” of Santa Clara County. See FAC, W 17-18; 21 . For the reasons discussed below, Plaintiffs’ allegations that Defendants “subjected” themselves to the jurisdiction of Santa ' Clara County fail to establish that venue is proper in that county. AcCordingly, because Defendants reside in Los Angeles County and there is no basis for ' establishing venue in Santa Clara County, the Courtmust transfer this case to Los - . Angeles.‘ In. ARGUMENT - . p A. Under CCP § 395(3),.Los Angeles Superior Court is the Proper Court for This Action Because Defendants Reside in Los Angeles._ ' The Statutory provisions governing thelproper venue of civil actions 'are ' found in CCP § 392 etseq. CCP § 395(a) sets forth the general rule, subject to limited exceptions, that f‘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. Id. The statute creates a preference for trial in the county of a defendant’s residence. Mosby v. Superior Court (.1974) '43 Cap.App.3d 291, 224. “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.” Kaluzok v. Brisson (1946) 27 Cal.2d 760, - . 763; Brown v. Happy Val. Fruit Growers (1929) 206 Cal. 515,521. , Here, Mr. Sanders, Mr. Papiz, and Mr. McArthur all reside in Los Angeles County. See FAC, 111] 33-35. There is no contention that any Defendant resides in' Santa Clara County. Even the State Bar of California, which was improperly joined solely to confer venue, does not reside in Santa Clara County. 1d. at 1] 36. DEFENDANTS‘ MOTION TO CHANGE VENUE Case No.,18-CV-321670 10 11 1'2- '13 14' 15 16 17 18 19. 20 21' if 22 23' 24 25 26' 27 28 Therefore, under CCP § 395(a), venue is proper in Los Angeles County. . B. There is No Statutory Basis to Support Venue in Santa Clara County. . ' 1. The Contracts that Mr. Papiz and Mr. Sanders Allegedly Signed Do Not Confer Venue in Santa Clara County. Plaintiffs attempt to circumvent the 'venue rules of CCP§ 395(a) by arguing that M1. Papizand Mr. Sanders “subjected” themselves to the jurisdiction of Santa Clara County by agreeing to “three engagement letters’.’ to'retain Plaintiff I LegalForce RAPC Worldwide. FAC,1]1I 19, 21.. However, Plaintiffs" allegations that Mr. Papiz ane. Sanders agreed to “three engagement letters” for Plaintiffs’ legal services does not confer venue upon Santa Clara County. CCP §395(a) identifies-three permissible venue options for a case “founded” on contractual obligations. Such a case may be filed in the county where the defendant’s contractual obligation “is to be'performed,” or Where the defendant “entered into” the contract, or where the defendant “resides at the commencement of the action.” 1d. None of these~ options "confers venue in Santa'Clara County. ' . As a threshold matter, it does not appear that'Plaintiffs’ case is “founded” on contractual obligations. Neither Plaintiffs’ original complaint, nor Plaintiffs’ First - Amended Complaint, assert a claim for breach of contract; The only claim that appears to involve a contract is Plaintiffs’ cause of action for “an order to compel arbitration, which alleges that Mr. Papiz} and Mr. Sanders agreed to arbitrate disputes arising from Plaintiffs’ provision of legal services when they'signed engagement letters with Plaintiffs. See FAC, 111] 76-82. Curiously, however, Plaintiffs never identify the “dispute” between Plaintiffs and Mr. Papiz and Mr. ‘ Sanders that must be submitted to arbitration. The First Amended Complaint merely asks for an order to compel arbitration against Mr. Papiz and‘Mr. Sanders, without specifying which cause of action (if any) must be arbitrated. ‘ See .id. at W 83-85. Therefore, CCP §395(a)’s alternative grounds for conferring venue do not ‘apply here, as this is not a case “founded” upon contractual obligations. DEFENDANTS’ MOTION TO CHANGE VENUE 5 . 'Case No. 18-CV-321670 \ioxuull: 10' ~11 12 13 14 15 16‘ 17 18 :19 . 20_ 2.1 - 22 23 25 26 27 28 Even if Plaintiffs’ request for “an order to compel arbitration” could be construed as a breach of contract claim, which it cannot-there Would be no basis for conferring venue in Santa Clara County. In a breach-of contract action, the place the plaintiff performed its contractual obligations does'not determine the proper venue. Rather, the decisive factor in determining venue is the place the defendant was to perform the obligation. See Anaheim Extrusion Co. v. Superior Court (1985) 170 Cal. App. '3_d 1201, 1203-1204. In this case, there is no allegation that Defendants performed any contractual obligations. in Santa Clara County, or that Defendants were supposed to perform any obligations in that county. . I I Lilcewise, there is no allegation that Mr. Sanders or Mr. Papiz “entered into” any contract with Plaintiffs inSanta Clara County. Plaintiffsallege that Mr. Sanders and Mr. Papiz signed engagement letters with Plaintiffs via email, and that these Defendants included their Los Angeles addresses when they signed these letters electronically. See FAC, 1H] 78. - 80. Thus, according to the First Amended Complaint,,Mr. Sanders and Mr. Papiz were in Los Angeles county when they- “entered into” the alleged agreements for Plaintiffs’ legal services. See, e;~g., Braunstein v. Superior Court ofMonterey Cty., 225 Cal. App. 2d 691,.696-97 (1964) .(for venue purposes,.p1ace of making contract is place where last act » necessary” for its validity was done, usually act constituting acceptance). Ward Mfg. Co. v. Miley, 131 Cal. App. 2d 603, 610, 281 P.2d 343, 348 (1955).(contract made by telephone is “entered into” in the county where defendant was when he accepted the offer). Therefore, even if Plaintiffs’case can be characterized as a case “founded"‘upon contractual obligations, there is no basis for deviating from the rule that venue is. proper in the county of defendant’s residence. See also Archer v. Superior Court ofHur'nboldt Cty., 202 Cal. App. 2d 417, 419 (1962) (f‘Although - there can thus be as many as three counties in which a contract action may properly be brought, the defendant's residence is the preferred place for trial, and, if the defendant is entitled to a change of venue on any one of the causes of action alleged DEFENDANTS‘ MOTION TO‘ CHANGE VENUE 6 Case No. 18-CV-321670 A \l ox'ui 10 ‘11 '12 :13. ,14 15 [16 '17 318 19 .20- 21 22 ' 23 24 25: 26 Y 27 28 in the complaint, the motion must be granted as to all.”)._ Plaintiffs’ allegations that the engagement letters signed by Mnl’apiz and Mr. Sanders contain a venue selection clause, requiring that “all legal action or - proceedings shall be instituted in state or federal court in California, and in the Counties of Santa Clara or San Francisco,” do not change this result. See FAC, W 19; 21. As a threshold matter, Exhibits A-C to the First Amended Complaint, which , Plaintiffs characterize as “engagement letters,” do not show that either'Mr. Papiz or ' Mr. Sanders agreed to any venue selection clause. Exhibits A-C do not contain any ' signatures by Mr. Papiz or Mr. Sanders and do not appear to be “engagement letters” to retain either Mr. Abhyanker or his law firrn,‘LegalForce worldwide, P.C. _ In fact, Exhibits A.- C do not appear to be contracts at all; these exhibits I appear to be screenshots from different websites. Thefirst page of Exhibit A . appears to be a screenshot from an unidentified website, which shows a form reflecting Mr. Papiz’s name and Los Angeles address. Atthe top of‘this page is a dialOg box entitled “Terms Acceptance.”_ These “terms” are almostillegible, but ' they do n_ot contain a venue selection clause. The second page of Exhibit A is a screenshot from a different website, a “PayPal Checkout Order,” which contains a form reflecting Mr. Sanders’ name and Los Angeles address. The third page of Exhibit A, entitled ‘fTenns of Service,” appears to be come from a third website, as the wording of these terms differs from the wording of the terms in the dialog box on the first page. A venue selection clause appears inlthe “Terms of Service” from ' this third website, but there is no indication that either'Mr. Sanders or Mr. Papiz ever signed or agreed to this venue selection clause, andno effort is made to explain how or why these screenshots from three different websites constitute any type of contract. Exhibits B and C follow the samefonnat and suffer from the same deficiencies as Exhibit A. I Therefore, there is no record that Mr. Sanders or Mr. Papiz ever agreed to retain the legal services of either Mr. Abhyanker or his law firm, LegalForce DEFENDANTS’ MOTION TO CHANGE VENUE 7 Case No. 18-CV-3216'I0 ‘10 ‘11 12, 13 '14 15 ‘ 16 17 _18 19 20‘ '21 '22 231 ' 24 25 ‘26 -27 28 Worldwide, P.C. Plaintiffs’allegation that Mr. Papiz and Mr. Sanders agreed to venue in Santa Clara County because they signed “engagement letters”.to retain Plaintiffs is not supported by any of the exhibits to the First Amended Complaint. . .To the extent Plaintiffs contend that Mr. Papiz and Mr. Sanders “agreed” to . retain Mr. Abhyanker and his law firm by simply completing the generic online form included in Exhibits A - C, such an “agreement” is unenforceable. This form does not make clear that'either Mr Papiz or Mr. Sanders are retaining. Mr. Abhyanker and his law firm, or that Mr. Papiz' and Mr. Sanders are binding themselves to arbitration or any other legal proceedings‘i‘n Santa Clara County, and does not contain the signatures of either Defendant. See, e;g., Lawrence v. Walzer & Gabrielson, 207 Cal. App. 3d-1501, 1507-08, 256 Cal. liptr. 6, 10 (1989) (refusing to enforce arbitration clause in a retainer agreement that was drafied by the attorney because this agreement “was not the product 'of negotiation” and the client was not “fully advised of the possible consequences of that agreement”); ' WindsorMills, Inc. v. Collins & Ai/cm'an Corp, 25 Cal. App. 3d 987, 993-994 ' (1972) (“If a party wishes to bind in writing another to an agreement to arbitrate _ future disputes, such purpose shall be accomplished'in a way that each party to the arrangement will fully and clearly comprehend that the agreement to. arbitrate exists and binds the parties thereto”);- Hawk v. State Bar, 45 Cal.3d. 589, 598 (19.88) (“All ‘ dealings between an attorney and his client that are beneficial to the attorney will be ‘closely scrutinized with the utmost strictness for any unfairness”). Furthermore, even if Exhibits A - C could be construed as creating some sort of contract, the venue selection clause in these alleged contracts are unenforceable. The California Supreme Court has long since held that a venue selection clause is void if it dismpts the venue provisions mandated by the California Code of Civil Procedure. See Gen. Acceptance Corp. v. Robinson, 207'Cal. 285, 288-89, 277 P. ~ 1039, 10410 (1929). More recent appellate decisions continue to'hold that a venue selection clause is unenforceable if it requires that a case be filedin a different DEFENDANTS‘ MOTION TO CHANGE VENUE 8 Case No. 18-CV-321670 ‘Awm \iéxm 10 11 1'2 'l13, 14- 15 16 17 , 18 1‘9 20 21 22 23 24' . 25 26 27 28 county from the one required by statute. See Alexander v. Superior Court, 114 Cal. App. 4th 723, 731-32 (2003) (“[T]o- the extent a venue'selection clause disrupts statutory venue provisions it is void as against the legislatively declared public policy fixing the place for trial:”). Therefore, Plaintiffs cannot compel Mr. Sanders and Mr. Papiz to litigate in Santa Clara County based on the-venue selection clause in the alleged “contracts”. in Exhibits A'- c. ‘ _ Plaintiffs.’ related argLIment that Mr. Sanders and Mr: Papiz “subjected" ‘ themselves-to the jurisdiction of Santa Clara County by using Plaintiffs’ website, Trademarkiacom, must likeWise be rejected} See FAC, W 18; 21. As (a preliminary _ matter, Plaintiffs allege that Mr; Sanders and Mr. Papiz used Trademarkia.corn in September 2015, but the Trademarkiacom “terms of use” that Plaintiffs attach to 1 the First Amended Complaint as Exhibit D are dated January 10, 20.18. 1d., 1] 82; Exhibit D. Therefore, there is no'record of the terms and conditions that Mr. Sanders and Mr. Papiz allegedly agreed to when they used Trademarkiacom in 0 September 2015. _ I Furthermore, it appears that Plaintiffs included the allegation that Mr. _ Sanders and Mr. Papiz used Trademarkiacom fOr the sole reason of bolstering their position that venue is proper. in Santa Clara County. Plaintiffs’ allegations regarding Mr. Papiz and Mr. Sanders pertain to the alleged attorney-client relationship between Plaintiffs and Mr. Papiz and Mr. Sanders. See generally FAC,'1H[ 38- 74. Except for the venue allegations (see FAC, W 18; 21), the First Amended I Complaint does not discuss Defendants’ alleged use _of the Trademarkia.com website. There is no attempt to explain how or why Defendants’ use of this website relates to any of the causes of action or creates, any dispute or actual controversy between the parties. Because Defendants‘ use of this website is irrelevant to Plaintiffs’ causes of action, it has no bearing on the proper venue for this case. In any event, even if Trademarkia.com’s terms and conditions containeda venue selection clause when Mr. Sanders. and Mr..Papiz allegedly used that website DEFENDANTS' MOTION TO CHANGE VENUE 9 Case No. l8»CV-321670 OO\) 10 ~11, . 12 13 I4 I 1-5 16‘ i7 "18 19 20 ‘21 22‘ 23 . 24 ‘ 25 26 27 28 in' September 2015, that clause is unenforceable. Under General Acceptance and its progeny, the terms and. Conditions on Plaintiffs’ website are unenforceable to the extent they cenflict with'the California Code of Civil Procedure. See' also Arntz _’ Builders v. Superior Court, 122 Cal. App. 4th 1195, 1204, 19 Cal. Rptr. 3d 346, 352 (2004) (“[A] contractual provision entered before the action has been filed designating an improper venue is nonetheless against public policy and void”); Because the venue selection clause on Plaintiffs’ website conflict with Defendants’ statutory venue rights, they are void and do not confer venue in Santa Clara county. ' - I . ‘ As a last-ditch effert, Plaintiffs allege that Mr. Papiz and Mr.‘ Sanders l“subjected” themselves to venue in Santa Clara County because these defendants are the “alter ego” of a company called DNA Vapor, LLC. FAC, 111120; 23. However, even if these allegations were true, they do not support venue in Santa Clara County, As Plaintiffs acknowledged in their original complaint, DNA Vapor’s principal place of business is in Los, Angeles-County. See Complaint, filed on January 10, 2018, at 1| 22, (“DNA Vapor LLC is a California limited liability ' corporation with a principal place of business at 2906 11“! Street, SantavMonicah . California 90405). Therefore, even if DNA Vapor, LLC were the “alter ego” of Mr. I Papiz and-Mr. Sanders, venue in Los Angeles wouldstill be proper because that is where DNA Vapor’s principal place of business is located. See, e.g., CCP §395.5; ~Dz'llman v. Superior Court. ofL.A. Cty., 205 Cal. App. 2d'769, 772 (19:62) '(‘_‘A corporation is properly. sued in the county where its principal place of business is situated”); All-Cool Aluminum AwningCo. v. Superion Court of Kern Cty., 224 Cal. App. 2d 660, 666. (1964) (“The principal place ofa business ofa corporation is its residence for the purpose of determining venue”) I Accordingly, none of the allegations against Mr. Papiz or Mr. Sanders confer venue in Santa Clara County. DEFENDANTS’ MOTION TO CHANGE VENUE 10 Case No. l8-CV-321670 \o-oo' \);O\ ' 10 11 12 1'3 14 1‘5 16 17 '18. 19 20 21 22 23 24 25 26 27 23 ' 2. Plaintiffs’ Alle ations Re ardin the Locations of Witnesses Do Not Confer enue in anta lara County. Plaintiffs’ First Amended Complaint does not provide any basis for suing Mr. (McArthur, a Los Angeles resident, in Santa Clara County. Plaintiffs allege that Mr. McArthur defamed Plaintiffs by posting reviews from Glassdoorcorn, a‘ third-party website, to a “listserv”for trademark attorneys. FAC, 1H] 17; 92. The Glassdoor citations that Mr. McArthur allegedly posted reflected negative reviews from Plaintiffs’ former employees. Id. at 1] l7. Plaintiffs contend that by posting reviews written by Plaintiffs’ former employees on Glassdoorcom, Mr. McArthur “subjected himself” to venue in Santa Clara County because witnesses to Plaintiffs’ defamation claim “likely reside 'in or‘near this County.” Id. These allegations do not establish venue in Santa Clara County. H The Code of Civil Procedure does not allow a plaintiff to file a suit in any county simply because the pla1nt1ffbel1eves that a county could be more “convenient” for third-party witnesses. CCP § 397(c) authorizes a court to change the place of trial upon a motion demonstrating that “the convenience of witnesses ,and the ends of justice would be promoted” by the changeofvenue. Plaintiffs have not made such a motion pursuant to CCP1§ 397(0), and the allegations in the First Amended Complaint do not demonstrate that.“_the convenience of witnesses and the ends of justice would be promoted” by allowing this case to proceed in Santa Clara County. Plaintiffs simply speculate that Southern Califomia “would be likely . inconvenient" for third-party witnesses. FAC; W 17; 26. According to the ,First Amended Complaint, the alleged third-party 'witnesses to Plaintiffs’ defamation . claim are “unnamed.” Id. at 1] 17. Since Plaintiffs do not know who these. witnesses are, they certainly do not know where they reside or whether Los Angeles would be inconvenient. Therefore, there is no basis for denying M'r. McArthur his'statutory right to have this action tried in' Los Angeles County, the county of his residence. ' DEFENDANTS‘ MOTION TO CHANGE VENUE 11 Case No. l8-CV-321670 \ooowvo‘ 10 11' 12 113' 14 . 15 - 116 '17 1'8 ‘19. 20 21 ' 22 23'. -24 '25 26 27 28 3. The'1mproper joinder of the State Bar ofCalifornia does not confer venue in Santa Clara County . Finally, Plaintiffs’ bizarre joinder of the State Bar of Californiadoes not support venue in Santa Clara County for two key reasons. First, according to Plaintiffs ’- own allegations, the State Bar 'of California is resident of San Francisco ' with a “principallplace of business at 180'Howard Street, San Francisco, CA 94105 .” FACJI 36. In addition, the State Bar also has an office in Los Angeles . County 2 Therefore, there is no basis for conferring venue in Santa Clara County. Second, Plaintiffs’ joinder of State Bar of California cannot defeat Defendants’ statutory right to venue in Los Angeles County because the joinder of this defendant is improper. Plaintiffs’ counsel stated that he added the State Bar to this lawsuit to overcome defense counsel’s venue objections. McconnellDecl.,1Hl . 3-4. For this reason alone, the joinder of theState Bar of California must be disregarded in determining venue. See Dreher v. Fid. & Cas. C0,, 1148 Cal. App. 2d 695, 700, 307. P.2d'407', 410 (1957) (“Where the joinder is not made in good faith but is simply an attempt to defeat the right of a defendant to trial at his residence, such defendants' residence under section 395, Code of1CiVil Procedure, is not to be consideredin deteirnining the proper place for trial”). The impropriety of Plaintiffs’ decision to add the State Bar of California as a defendant is further evidenced by the fact that Plaintiffs’ First Amended Complaint is devoid of any substantive allegations against this entity Plaintiffs asseit a claim for declaratory relief against the State Bar of California but do not allege any actual controversy with the State Bar that would warrant such relief. The State Bar is simply alleged to be “the agency responsible governing (sic) theconduct of the licensed attorneys.” PAC, 1] 36. .There is no allegation that the State Bar has done or will do anything that affects‘Plaintiffs’ rights or obligations. Because Plaintiffs-have failed to include any substantive allegations against ' 2 The State Bar of Califorma s Los Angeles office 15 located at 845 S. Figueroa St. Los Angeles CA 90017- 2515. See http: //www. calbar. ca. oov/Contact-Us . DEFENDANTS' MOTION TO CHANGE VENUE- ~ Case No. 18-CV-32167O - 12 - . \O'couox 10 11 . 12 13 14 15 16 17 18 19 20 -.2‘1 22. '23 24 25 '26 27 28 the State Bar of California, their joinder was improper, and their residence should not be considered 1n determining venue. See T aff v Goodman, 41 Cal App. 2d 771, 776 (1940) (the usual test by which to determine whethei a defendant has been joined in bad faith is whether or not the complaint states a cause of action against him); South v. Wishard, 123 Cal. App. 2d 642, 650 (1954) (in determining whether a defendant was joined to defeat venue, the court should consider whether the : plaintiff had stated aCause of action against that defendant and whether the plaintiff could recover any-relief as against that‘defendant under any circumstances) C. The Court Must Transfer This Action to the Proper Court, Los - wAngeles “The court may, on motion, change the place of trial. . .[w]hen the court designated in the complaint is not the proper court.” CCP; § 397(a). Upon hearing a motion to transfer an action to the proper court, “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.” CCP, § 396b(a) (emphasis added). "‘[W]hen it appears that the action has been commenced in the wrong court a transfer to the ‘proper’ court is'mandatory.” San Jose Ice'& Cold Storage Co. San - Jose; 19 Cal. App. 2d 62, 64-65, 64 P.2d 1099,1101 (1937). The court is divested of jurisdiction to dolanything other than transfer the action. Eveleth ~v. Am. Brass & Iron Foundry, Plastics. Div., 203 ch. App. 2d 41, 45 (1962). I , Here, strictly construing the First Amended Complaint, Plaintiffs’ venue contentions fail. Plaintiffs have not clearly and distinctly established that this case meets any statutory exception to overcome Defendants’ fundamental right to have the case tried in their county of residence. The proper venue is Los Angeles, where Defendants reside. The case should therefore be transferred. D. The Court Should Avvard Attorneys Fees and Costs to Defendants for Plaintiffs’ Refusal to File This Case in the Proper Court. Defendants respectfully request that the Court award the attorney’s fees and expenses they have incurred in making this motion to transfer the case to the proper DEFENDANTS' MOTION TO CHANGE VENUE 13 Case No. 18- CV- 321670 1;) sow-\rox'miaoi .10 ll 12‘ 13. 14 16 217: is 19 20 21 I 23 24 25 ‘26 27 .28 court. CCP § 396b(b) authorizes the court to “order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer.” . In determining whether expenses and fees shall be awarded, ' the court should consider: “(1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was 'made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known.” Id. The recordin this .case supports an award of attorney’s fees and costs I ptusuant to CCP §' 396b(b). As set forth in the accompanying declaration, counsel for defendants had raised their venue objections and asked Plaintiffs’ counsel to transfer this case to Los Angeles before making this motion McConnell Decl 1m 2; '5. Plaintiffs counsel 1‘6] ected this request and instead filed the First. Amended Complaint, which adds the State Bar of California as a defendant in an improper attempt to defeat venue. Id. at 1111 3-4; 6-. 'Plaintiffs’ unreasonable rejection of defense counsel’s request to transfer venue and. their bad faith in adding the State Bar of California as a defendant justify an award of attorneys’ fees and costs. 7 Defendantstherefore respectfully request that the Court award these fees and costs, which total $ 10 ,.O65 00, as set forth in the accompanying declaration 1d. at W 8- 12. 1v. CONCLUSION ' For the foregoing reasons, Defendants respectfully requests that the Court grantithe motion for change of venue and. transfer this case to Los Angeles County Superior Court. Defendants further request that. the Court award Defendants their attorney’s fees and costs in bringing this motion in accordance with CCP § ’396b(b). DATED: January 25, 2018 . THE MCARTHUR LAW FIRM, PC' . ‘97 2/7 . 4 By: ”(W/Zr; /7 WM Valerie McConnell Attorneys for Defendants, Michael Papiz, Jon Sanders, and Stephen McArthur DEFENDANTS’ MOTION TO CHANGE VENUE - Case No. 18-CV-321670 _ 14 -