18-CIV-01928 ARTHUR ZANELLO, ET AL. VS. MICHAEL MULLIGAN, ET AL.
ARTHUR ZANELLO MICHAEL MULLIGAN
KEITH C. BOWER E. THOMAS MORONEY
MOTION FOR CHANGE OF VENUE BY MICHAEL MULLIGAN AND GINA MULLIGAN TENTATIVE RULING:
The Motion of Defendants Michael Mulligan and Gina Mulligan (“Defendants”) for Change of Venue is GRANTED. This action is ordered transferred to Los Angeles County. Plaintiffs bring this action for financial elder abuse seeking personal relief and, thus, this action is transitory. Proper venue for transitory actions is where the defendants or some of them reside at the commencement of the action, except as otherwise provided by law and subject to the power of the Court to transfer actions or proceedings as provided in this title. (C.C.P. §395(a).) It is undisputed that both defendants reside in Los Angeles County and, thus, venue is proper there.
Plaintiffs have not identified any statutory exception to support that venue is proper in San Mateo County. Plaintiffs have not established that Code of Civil Procedure §393(a) applies. This section provides for venue in the county in which the cause, or some part of the cause, arose, “[f]or the recovery of a penalty or forfeiture imposed by statute….” (C.C.P. §393(a).) Plaintiffs argue that the First Amended Complaint seeks statutory penalties and forfeitures under Welfare and Institutions Code §15657.5 (punitive damages), Civil Code §3294 (punitive damages) and Probate Code §859 (statutory penalty). However, punitive damages are distinguishable from a statutory penalty. (See Hill v. Sup. Ct. (2016) 244 Cal.App.4th 1281, 1287 [“statutory damages awarded as a penalty are “distinguished” from punitive damages.”] Furthermore, while Probate Code §859 provides for a statutory penalty, this section pertains to a petition brought under Probate Code §850. (See Prob. Code §§850, 859.) Plaintiffs have not brought a petition under Section 850.
To the extent that Plaintiffs seek to have the action remain here based on the convenience of witnesses under Code of Civil Procedure §397(a), such a motion must be brought before the Los Angeles court after the action is transferred there and Defendants have filed an answer. (See Scribner v. Sup. Ct. (1971) 19 Cal.App.3d 764, 766.)
Defendants’ request for reasonable attorney’s fees and expenses is DENIED.
Plaintiffs’ request for sanctions is DENIED.