Opposition Plaintiffs Opposition To Defendant Nissan North America Incs Motion To Transfer For Improper Venue

Motion

Cal. Super. - 2nd Dist.October 31, 2018

Electronically FILED by Supe C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 Michael D. Resnick (SBN 245215) e-mail: mresnick@clrattorney.com Neil Gieleghem (SBN 107389) e-mail: ng@clrattorney.com Consumer Legal Remedies, APC 153 2 North Arnaz Drive Beverly Hills, CA 90211 Telephone: (310) 213-1398 Facsimile: (213) 210-2196 Attorneys for Plaintiffs rior Court of California, County of Los Angeles on 03/07/2019 05:12 PM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Miro,Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - UNLIMITED JURISDICTION ALECIA FRANCO, an individual; ANDREI A. CHAKHOVSKOI, an individual; ANTHONY DAVID, an individual; ANTHONY MEZA, an individual; ARIANNA PEREZ, an individual, ARMANDO ALVAREZ, an individual; ARMANDO ANDRADE, an individual; BEN GOLDHAMMER, an individual; BILLY MCGHEE, an individual; BONNIE AGUILAR, an individual; CARLOS VALENZUELA, an individual; CARRIE AVERY, an individual; CATHERINE HERNANDEZ and RUDY HOLMES, as individuals; CESAR ROSAS, an individual; CLAUDIA MENDOZA, an individual; CRISTAL AGUILAR, an individual; CYNTHIA SALAZAR, an individual; DAVE GARRISON, an individual; DAVID VALDEZ, an individual; DEBBIE LEON-ALVILLAR and BLANCA ALVILLAR-MAMLOUK, as individuals; DESIREE NORTHRUP, an individual; DONNA LEE DEETER, an individual; DORIS FIELD, an individual; EBENEZER TEH, an individual; ELI GONZALEZ, an individual; ELLISHA PILLOW, an individual; ERICK NUNEZ, an individual; ERIKA OWENS, an individual; FRANK AREVALQO, an individual; GLENESTHER BRUMFIELD, an individual; GLORIA MARTINEZ [1], an individual; GLORIA MARTINEZ [2], an individual; GRISELDA AGUILAR, an individual; GUSTAVO SOLORZANQO, an individual; HERBERT ORTEGA, an individual, HERNAN A. LOPEZ, an individual; JEFFREY MAXWELL, an individual; JERRY RUBIO, an Case Nos.: 18STCV03109 Hon.: Teresa A. Beaudet Dept.: 50 PLAINTIFFS’ OPPOSITION TO DEFENDANT NISSAN NORTH AMERICA, INC.’S MOTION TO TRANSFER FOR IMPROPER VENUE [Concurrently filed with the Declaration of Michael D. Resnick ISO Plaintiffs Opposition to Nissan's Motion to Transfer] Date: March 20, 2019 Time: 8:30 a.m. Dept.: 50 Reservation ID: 044267577015 Case filed: Oct. 31,2018 First Amended Complaint filed: Dec. 26, 2018 Trial Date: Not Set. PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 individual; JESSICA ELLIS, an individual; JIMMIE NOLTA, an individual; JONATHAN LUQUE and ROSE PILOTO, as individuals; JOSE GALAVIZ, an individual; JOSE OLIVA, an individual; JOSELITO SIPIN, an individual; JUAN MONTES, an individual; JUAN VALENCIA, an individual; JULIUS DAVIS- HOCHSTEIN, an individual; KELVIN MCCLELLAND, an individual; KRISTIN HARRIS, an individual; KRYSTAL L CHITTY, an individual; KRYSTAL SHIFFLET, an individual; LEON WALTON, an individual; LORRI J. SCRUGGS, an individual; LUZ MORALES, an individual; NOE FAJARDOLUA, an individual; MARIA G. HERRERA, an individual; MARION MORALES, an individual; MATTHEW LANE, an individual; MERSED NAVARRO, an individual; JOHN MICHAEL NASH, an individual; MICHELLE INIGUEZ, an individual; MOHAMMED ALI an individual; OLIVIA ORTEGA WILSON, an individual; OSCAR REYES, an individual; PATRICIA IGLESIAS, an individual; PAULETTE WILLIAMS, an individual; PEJMAN AHMADI, an individual; RACHEL DIXON, an individual; RAFAEL A. BRECEDA RAMOS, an individual; RAUL CUADRA, an individual; RODRIGO CATIBOG, an individual; ROSEMARY VALLE, an individual; RUBEN VEGAS, an individual; RYAN AZEVEDO, an individual; SALVADOR CHAVEZ, an individual; SAMUEL BLACKMORE, an individual; SATORI HOGG, an individual; SHAMIKA CLARK, an individual, SHANNON HOWARD, an individual; SHERRELLE CLARK, an individual; STACEY DAVIS, an individual; STEVE J. FOLSOM, an individual; STEVE RICHMOND, an individual; STEVEN JOHNSON, an individual; TERRY DRAIN, an individual; TERRY HEAD, an individual; THEODORE MOORE, an individual; TIMOTHY HALL and CHERYL HALL, as individuals; TONIA MITCHELL and RANDALL RAY HART, as individuals; VANESSA NEAL, an individual; VERONICA MENDOZA, an individual; VICTOR ALCANTARA, an individual; VIVIAN PAREDES, an individual; YANIRA VALDEZ, an individual; YVONNE MORELLO, an individual, Plaintiffs, VS. PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 NISSAN NORTH AMERICA, INC.; and DOES 1 through 10, inclusive, Defendants. PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 IL. INTRODUCTION Plaintiffs oppose the Motion to Transfer of Defendant Nissan North America, Inc. (“Defendant” or “Nissan”) on two different, although related, grounds: First, and as this Court’s file evidences, Plaintiffs have sought to have this consumer “Mass Action” case “re-designated” as Complex and transferred back to this Court’s Civil Complex Department, wherein it was initially was filed as a Complex case. But the case was transferred to this Court only due to Plaintiffs having filed a peremptory challenge to the-then assigned Civil Complex Dept. Judge. Plaintiffs respectfully submit that the venue issues raised by Nissan’s pending Motion to Transfer should be addressed only after the Complex case issue is revolved - and, if appropriate, by a Civil Complex Dept. court. Significantly, Nissan does not disagree that this is a Complex case that should be transferred back to a Civil Complex Dept. Second, and assuming this Court reaches the substance of Nissan’s venue argument, the Motion to Transfer should be denied. Reduced to its essentials, Nissan’s argument boils down to the theory that the party plaintiffs in a Mass Action such as this must all be residents of the same county for venue to lie. Contrary to Nissan’s assertion, there is no legal authority that supports this argument. To the contrary, the legal authority that does exist is to the contrary. Further, Nissan’s theory would make it difficult, if not impossible, for consumer plaintiffs such as those involved here - and the Courts hearing such cases - to take advantage of the judicial economies and other benefits to be gained by pursuing such Mass Action cases in a single venue. Accordingly, Nissan’s Motion to Transfer should be denied - or again, referred to a Civil Complex Dept. court for determination in that context. I] 111 I] 1 PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 II. FACTUAL AND PROCEDURAL BACKGROUND A. This Is A Consumer Mass Action Alleging California “Lemon Law” Claims That Was Filed As A Complex Case, But Subsequently Transferred To This Department Without Any Notice, Finding, Or Ruling That The Case Was Not Complex Broadly stated, this is a consumer Mass Action filed by 100 Plaintiffs alleging claims under California state law - California’s “Lemon Law,” the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1794 - against Nissan based on transmission defects in Nissan “Sentra” automobiles purchased by each of the Plaintiffs. As this Court’s file evidences, this case was filed on October 31, 2018. On filing, the Plaintiffs designated the case as complex, and it was initially assigned to this Court’s Civil Complex Dept. 14, the Hon. Kenneth R. Freeman presiding. The Summons and Complaint were served on Nissan, via its registered agent for service of process in California, on or about November 1, 2018. On or about November 5, 2018, Plaintiffs timely filed a peremptory challenge, pursuant to Civ. Proc. Code 170.6, as to Judge Freeman. This peremptory challenge was sustained by the then-assigned Court (Judge Freeman) on November 13, 2018; and the case was transferred back to Dept. 1 for reassignment. As part of Judge Freeman’s November 13, 2018 Order, the “Complex fees paid, if any, were ordered refunded,” which apparently resulted in this case not being treated as complex by Dept. 1. On or about November 16, 2018, the Court (Hon. Debre Katz Weintraub) reassigned this case to this Dept. 50, where it has been pending ever since. As far as Plaintiffs can tell, there has never been a judicial determination that this case is not complex; and Plaintiffs were never given notice of, and an opportunity to address, such issues. Significantly, Nissan never filed a counter-designation that this case is not Complex, as required by California Rules of Court, rule 3.402(b). To the contrary, Nissan previously agreed that this case is Complex, and should be transferred back to the Complex Dept. See, e.g., 2 PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 Plaintiffs’ Request For The Reclassification Of This Case As Complex, And For Transfer To Complex Case Department; Or In The Alternative, For (1) The Setting Of An (1) OSC Re Reclassification And Transfer; Or (2) A Status Conference Re Reclassification And Transfer, filed December 17, 2018 (copy attached as Exh. A to § 3 of the Declaration of Michael D. Resnick (“Resnick Decl.”), which is filed concurrently herewith). B. Plaintiffs Respond To Defendant Nissan’s Initial Concerns Re Venue By Filing A First Amended Complaint Expressing Alleging Venue Under Civ. Proc. Code § 395.5(b) As noted above, this is a consumer Mass Action, and the initial Complaint named 100 Plaintiffs who resided in 23 (twenty-three) different Counties in California. The “breakdown” of these 23 residence Counties of the Plaintiffs are as follows, from the “Most Plaintiffs” county to the “Least Plaintiffs” county: San Bernardino (19) Los Angeles (17) San Diego (10) Riverside (8) Fresno (6) Sacramento (5) Solano (5) Imperial (3) Kern (3) Orange (3) Stanislaus (3) Alameda (2) San Joaquin (2) Santa Clara (2) Tulare (2) 3 PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 Ventura (2) Yolo (2) Butte (1) Contra Costa (1) Madera (1) Polk (1) San Mateo (1) Santa Barbara (1) See also the Resnick Decl., 4 2 (detailing by name the residence county of each of the Plaintiffs to this Action). After he was retained, Nissan’s counsel (Adam Thurston, Esq. of the Drinker, Biddle & Reath LLP firm) raised an issue as to whether the initial Complaint sufficiently alleged venue in Los Angeles County. After the parties met and conferred on this issue extensively, Plaintiffs filed (on December 26, 2018 and before Nissan responded to the initial Complaint), a First Amended Complaint (“FAC”) that was intended to satisfy the concerns that Nissan had raised to that point. Broadly stated, this FAC contained additional/new venue provisions, at Paragraphs 106- 107, that resolved Nissan’s assertions that venue was not sufficiently alleged in Los Angeles Superior Court as to the Plaintiffs who are residents in Los Angeles County. These new venue allegations assert venue in Los Angeles County pursuant to the “consumer obligation” venue provision of Civ. Proc. Code § 395(b), which provides, in pertinent part: [In an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use . . . 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. (Underlining added.) I As far as Plaintiffs can tell, this FAC does not appear on this Court’s “Case Access” website; and a conformed copy of the FAC is attached as Exh. B to 9 4 of the Resnick Decl. 4 PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 There appears to be no dispute that, as to the Los Angeles resident Plaintiffs, venue in Los Angeles County would lie. Instead, Nissan’s Motion to Transfer is based on the theory that, even if venue lies in Los Angeles County as to the claims of the Los Angeles resident Plaintiffs, venue in this County nonetheless does not lie because not all of the Plaintiffs reside herein. On this theory, Nissan seeks transfer of this case to Sacramento County Superior Court pursuant to Civ. Proc. Code § 395.5, solely because Defendant’s principal business office is located in that County; and even though only five (5) of the 100 Plaintiffs reside in that County. See, e.g., Motion to Transfer, pp. 6-7. After meeting and conferring extensively on these issues, the parties ultimately concluded that they would have to “Agree to Disagree,”® and Nissan filed its Motion to Transfer. III. LEGAL ANALYSIS A. This Court Should Defer Ruling On The Motion To Transfer Pending Resolution Of The Complex Case Issue Without denigrating this Court’s sophistication, both Plaintiffs and Defendant agree this case “belongs” back in the Civil Complex Department. This Court can accomplish such a result, and clear this case off its docket by transferring this case, either back to Dept. 1 for reassignment by the Civil Division Presiding Judge, or back to any Civil Complex Department Judge other than Hon. Kenneth Freeman (who was, as noted above, the subject of Plaintiffs’ peremptory challenge). 2 That said, Nissan appears to have raised an issue as to Plaintiffs’ alleged failure to comply with a requirement, under Civ. Proc. Code § 396a(a), that invocation of venue under Section 395(b) should be supported by, among other things, an attorney affidavit. To the extent that such a requirement lies, Plaintiffs herein incorporate to this Opposition by reference q 5 to the Resnick Decl., which was made under oath by Plaintiffs’ counsel, and which shows that this Action was properly commenced in this Court. 3 Plaintiffs do not mean to imply that Nissan did not meet and confer in good faith. To the contrary, and as the meet-and-confer emails attached to Nissan’s Motion to Transfer evidence, both parties made a good faith effort to address the issues presented given the limited legal authority that seems to apply to a situation such as this; and the conflict in what that limited legal authority seems to hold. 5 PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 In the alternative, and if this Court wishes to hear further from counsel, this Court can set an Order to Show Cause re reclassification and transfer, or set a Status Conference or Case Management Conference to address these issues. As noted above, Nissan concurs to such reclassification, provided that the same does not compromise in any fashion Nissan’s right to challenge whether venue lies in the Los Angeles County courts. B. Nissan’s Substantive Argument Attempts To “Write Into” Civ. Proc. Code § 395(b) A Requirement That All Of The Plaintiffs In A Mass Action/Complex Case Must Reside In The Same County If, however, this Court is inclined to address the substance of Nissan’s argument, Plaintiffs’ response is that Nissan is trying to “rewrite” Section 395(b) to include a requirement that all the plaintiffs in a Mass Action/Complex case such as this must reside in the same County for this “consumer obligation” venue provision to apply. As far as Plaintiffs have been able to determine, there is no statutory, rule, or case authority that supports this attempt to “write into” Section 395(b) any such requirement. This lack of legal authority includes the case on which Nissan almost entirely relies, Brennan vs Superior Court (County of Sutter) (1994) 30 Cal. App. 4" 454. See Motion to Transfer, pp. 8- 9. As an initial matter, Nissan’s own description of the Brennan decision makes clear that Brennan was not a Section 395(b) “consumer obligation” venue case. For example, Nissan's “analysis” of Brennan makes no mention whatsoever of Section 395(b). With good reason: In Brennan, Section 395(b) was not invoked by the plaintiffs, and was not part of the Brennan court’s analysis. Thus, Brennan provides no support for Nissan’s attempt to “write into” Section 395(b) any requirement that all the plaintiffs in a Mass Action/Complex case must reside in the same County to involve the “consumer obligation” venue provision. Further, Nissan’s attempt to “re-write” Section 395(b) to include such a requirement would preclude any assertion of “consumer obligation” venue in any Mass Action or Complex 6 PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 case that included even one (1) plaintiff who was a resident in a different County. Nothing in the permissive joinder statute, Civ. Proc. Code § 378, or the California Rules of Court governing Complex cases (e.g., CRC 3.400 ef seq.), supports such a limitation. To the contrary, both these lines of authority support, at least implicitly, the idea that no such limitation should be imposed on such Section 395(b) “consumer obligation” venue. In this regard, it bears noting that, if Nissan’s argument is carried to its logical extension, the Plaintiffs herein could not invoke the “consumer obligation” venue provisions of Section 395(b) unless they filed 23 separate actions in their 23 different Counties of residence. And in all likelihood, either Nissan and/or the Courts involved would then seek to coordinate these actions in one Judicial Council Coordinated Proceeding. Clearly, that result would be a gross waste of the scarce judicial resources of the Courts involved, and the resources of the parties. IV. CONCLUSION For the above reasons, this Court should defer ruling on the venue issues until resolution of the Complex case issue; or in the alternative, deny Nissan’s Motion to Transfer. Respectfully submitted, Dated: March 7, 2019 CONSUMER LEGAL REMEDIES, APC an BY --- TT MICHAEL RESNICK - NEIL GIELEGHEM Attorneys for Plaintiffs 7 PLAINTIFFS’ OPPOSITION TO MOTION TO TRANSFER FOR IMPROPER VENUE C O N S U M E R L E G A L R E M E D I E S , A P C 15 3 1/ 2 N O R T H AR NA Z DR IV E, BE VE RL Y HI LL S, CA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 153 2 North Arnaz Drive, Beverly Hills, CA 90211. On March 7, 2019, I caused to be served the document(s) described as: PLAINTIFFS’ OPPOSITION TO DEFENDANT NISSAN NORTH AMERICA, INC.’S MOTION TO TRANSFER FOR IMPROPER VENUE on the interested parties in this action by sending [ ] the original [or] [v ] a true copy thereof [v'] to interested parties as follows [or] [ ] as stated on the attached service list: Adam J. Thurston, Esq. + DRINKER BIDDLE & REATH LLP 1800 Century Park East, Ste. 1500 Los Angeles, California 90067-1517 adam.thurston@dbr.com Tel: 310 203-4039 Fax: 310 229-1285 Attorneys for Defendant NISSAN NORTH AMERICA, INC. [X] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. [X] BY E-MAIL: I hereby certify that this document was served from Los Angeles, California, by e-mail delivery on the parties listed herein at their most recent known e-mail address or e-mail of record in this action. [] BY FAX: I hereby certify that this document was served from Los Angeles, California, by facsimile delivery on the parties listed herein at their most recent fax number of record in this action. [] BY PERSONAL SERVICE: I caused the above-stated document(s) to be placed with a professional legal support service to be served by personally delivering a true copy thereof to the individuals identified above per C.C.P. 1011(a); F.R.C.P. 5(b). [] BY OVERNIGHT DELIVERY: I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Under that practice, overnight packages are enclosed in a sealed envelope with a packing slip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or delivered by our office to a designated collection site. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this March 7, 2019, at Los Angeles, California. NSE Neil Gieleghem Signahge / re PROOF OF SERVICE