Fontaine v. Superior Court

• Decision Date: 10 June 2009
• Docket Number: No. H033811.,H033811.
• Citation: 175 Cal.App.4th 830,96 Cal. Rptr. 3d 607
• Court: California Court of Appeals Court of Appeals
• Parties: PAUL FONTAINE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; CASHCALL, INC., et al., Real Parties in Interest.

175 Cal.App.4th 830

96 Cal. Rptr. 3d 607

PAUL FONTAINE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent CASHCALL, INC., et al., Real Parties in Interest.

No. H033811.

Court of Appeals of California, Sixth District.

June 10, 2009.

Consumer Law Center, Frederick William Schwinn, Raeon R. Roulston; and Ronald Wilcox for Petitioner.

No appearance for Respondent.

Finlayson, Augustini & Williams and Michael Raymond Williams for Real Parties in Interest.

OPINION

BAMATTRE-MANOUKIAN, Acting P.J.—

I. INTRODUCTION

Petitioner Paul Fontaine obtained a loan for personal, family or household use from real party in interest CashCall, Inc. (hereafter CashCall). After CashCall attempted to collect the debt, Fontaine filed a complaint in Santa Clara County Superior Court alleging that the collection methods used by CashCall and four of its employees violated the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.). CashCall responded by bringing a motion to transfer the action to Orange County Superior Court on the ground that individual defendant Richard Vargas, a resident of Orange County, had requested that the case be tried there. The trial court granted the motion and ordered the action transferred to Orange County Superior Court.

Fontaine seeks extraordinary relief from the trial court's order, arguing that venue is proper in Santa Clara County pursuant to Code of Civil Procedure section 395, subdivision (b)¹ because he resides in Santa Clara County and the action arises from a consumer loan. For the reasons stated below, we agree and therefore we will issue a peremptory writ in the first instance vacating the trial court's order.

II. FACTUAL AND PROCEDURAL BACKGROUND

In his complaint filed on May 30, 2008, Fontaine alleges that defendant CashCall and its employees, individual defendants Richard Vargas, James Ryan, Ronald Bey, and Rachel Behn, "engaged in abusive and intrusive conduct in an attempt to collect a debt." Fontaine became indebted when he "incurred a financial obligation" to CashCall that was "primarily incurred for personal, family or household purposes . . . ." He asserts that CashCall repeatedly and continuously made telephone calls and sent collection letters that were intended to annoy, abuse and harass him. Based on these and other allegations, the complaint includes causes of action for violation of the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.), invasion of privacy, "Tort-in-se," negligent infliction of emotional distress, negligence, and violation of the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227(b)(1)(A)).

Defendants CashCall, Vargas, and Bey subsequently brought a motion to transfer the action to Orange County Superior Court. They argued that venue was proper in Orange County because the general venue rule set forth in section 395, subdivision (a)² provides that a defendant is entitled to have an action tried in the county of his or her residence; Vargas was a resident of Orange County and requested that the action be transferred there; and there was no applicable exception to the general venue rule.

Fontaine opposed the motion on the ground that venue was proper in Santa Clara County under two exceptions to the general venue rule. First, Fontaine claimed that he had suffered physical and emotional injury in Santa Clara County due to defendants' unlawful debt collection activities, and therefore the action could be tried in Santa Clara County pursuant to section 395, subdivision (a). Second, Fontaine asserted that venue was proper in Santa Clara County under section 395, subdivision (b)³ because the action arose from a loan that he had obtained primarily for personal, family or household purposes and he was a resident of Santa Clara County at the time the action was filed. Fontaine filed a declaration in support of his opposition, in which he also stated that he was financially unable to travel to the location of the Orange County Superior Court.

At the hearing on the motion to transfer, held on November 25, 2008, the trial court granted the motion. The court rejected both of Fontaine's venue arguments, determining that the action was not a physical injury action for purposes of venue and that section 395, subdivision (b) did not apply because Fontaine's action was not a collection action. The trial court's order transferring the action to Orange County Superior Court, upon plaintiff's payment of court costs, was entered on December 15, 2008. Defendants served a notice of entry of order on January 7, 2009.

Fontaine filed a petition for writ of mandamus in this court on January 28, 2009, in which he sought extraordinary relief from the trial court's order. On March 17, 2009, we issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 [203 Cal.Rptr. 626, 681 P.2d 893]), advising the parties that this court was considering issuing a peremptory writ of mandate in the first instance, requesting points and authorities in opposition to the petition, and allowing petitioner to reply. Having received opposition to the petition for writ of mandamus and petitioner's reply, we turn to the merits of the writ petition.

III. DISCUSSION

Fontaine argues that the trial court erroneously ruled that section 395, subdivision (b) does not apply to an action in which a consumer sues a debt collector. He explains that section 395, subdivision (b) expressly provides that where, as here, the action arises from the extension of credit for personal, family, or household use, venue is proper where the borrower resided at the time the action was commenced.

Real parties in interest (hereafter defendants) maintain that Fontaine's interpretation of section 395, subdivision (b) is wrong. They believe that section 395, subdivision (b) does not apply to this action because it is not a collection action against Fontaine. In their words, "it is clear that section 395(b) is a shield for consumer defendants who have been sued in certain collection actions; it is not a sword for consumer plaintiffs who seek to assert claims for alleged unfair debt collection activities against individual defendants in distant forums." Alternatively, defendants assert that the venue exception provided by section 395, subdivision (b) does not apply here because Fontaine's action does not arise from the provision of a consumer loan by individual defendant Vargas.

We will begin our analysis with an overview of the procedure for a motion to transfer an action.

A. Motion to Transfer an Action

(1) The court may, on timely motion, order transfer of an action "[w]hen the court designated in the complaint is not the proper court." (§ 397, subd. (a); see § 396a, subd. (b).) The moving party must overcome the presumption that the plaintiff has selected the proper venue. (Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1046 .) Thus, "[i]t is the moving defendant's burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds." (Ibid.) In opposing the motion to change venue, "[t]he plaintiff may bolster his or her choice of venue with counteraffidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue." (Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469 .)

(2) Pursuant to section 400, a party aggrieved by an order granting or denying a motion to change venue may petition for a writ of mandate requiring trial of the case in the proper court. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 927, fn. 4 [184 Cal.Rptr. 296, 647 P.2d 1075].) The standard of review for an order granting or denying a motion for a change of venue is abuse of discretion. (State Bd. of Equalization v. Superior Court (2006) 138 Cal.App.4th 951, 954 .)

B. The Section 395, Subdivision (b) Venue Exception

(3) 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." (See Brown v. Superior Court (1984) 37 Cal.3d 477, 483 [208 Cal.Rptr. 724, 691 P.2d 272].) Additionally, "when a plaintiff brings an action against several defendants, both individual and corporate, 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." (Id. at pp. 482-483, fn. 6.) For venue to be proper in a county other than the county in which a defendant resides, the action must fall within a statutory exception. (California State Parks Foundation v. Superior Court (2007) 150 Cal.App.4th 826, 833 .)

Fontaine does not dispute defendants' assertions that none of them resides in Santa Clara County and that individual defendant Vargas resides in Orange County. However, he argues in his writ petition that a statutory venue exception authorizes trial of this action in Santa Clara County Superior Court: the section 395, subdivision (b) provision for venue in actions arising from certain consumer obligations.

(4) Section 395, subdivision (b) provides in pertinent part that "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, other than an obligation described in Section 1812.10⁴ or Section 2984.4⁵ of the Civil Code . . . 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."

(5) To determine the proper application of the statutory venue exception provided by section 395, subdivision (b), we apply the following well-established principles of statutory...