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WEBB LEGAL GROUP
155 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 277-7200
WILLIAM T. WEBB #193832
JENNIFER D. YU #291603
155 Montgomery Street, Suite 1200 Es
San Francisco, CA 94104
(415) 277-7200 7 ed ILE D
(415) 277-7210 (fax) psi deine’
Attorneys for BILLFLOAT, INC.,
06/15/2016
RYAN GILBERT AND SEAN O’MALLEY Clerk of the Court
BY:DAVID YUEN
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
GOLDEN PACIFIC BANK, N.A., Case No.: CGC-16-549804
Plaintiff, SUPPLEMENTAL REPLY TO
PLAINTIFF/CROSS-DEFENDANT’S
v. MOTION TO CHANGE VENUE
BILLFLOAT, INC., RYAN GILBERT, SEAN
O’MALLEY, DOES 1-50,
Date: June 22, 2016
Time: 9:30 a.m.
Dept: 302
Defendants.
Cross-Complainant,
Vv.
GOLDEN PACIFIC BANK, N.A., and ROES
1-50,
Cross-Defendants.
)
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fe aeaaeaeaeaaaeaae
BILLFLOAT, INC. }
}
)
SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUE,WEBB LEGAL GROUP
195 Montgomery Str
(415) 277-7200
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INTRODUCTION
Plaintiffs supplemental brief is designed merely to alarm. It argues that dogmatic
consistency with a single ruling on different facts in a separate case should trump both black letter
law and prior court decisions in this very case.
The law is clear that once a lawsuit is filed, the residence of any individual defendant
drives the venue decision. In other words, once a plaintiff files suit in the wrong court, as
happened here, the defendant, not the plaintiff, gets to choose the county in which the lawsuit will
proceed. Moreover, venue is assessed at the time the lawsuit is filed, not when any cross-
complaint is filed; a cross-complaint has no bearing on venue. These points are well-settled law
and have been briefed already in this case.
Instead of proving that these points are inapplicable here for some reason, Plaintiff simply
ignores this statutory and well-settled case law. It is neither necessary nor advisable for the Court
to follow the Plaintiff’s argument, but since the Plaintiff has made it, out of an abundance of
caution, the Defendants are forced to refute the points the Plaintiff tries to make, all of which are
irrelevant.
Most of the Plaintiff's supplemental brief consists of case law saying that a plaintiff
cannot affect venue by amending the pleadings of the case that is the subject of the venue motion,
by adding or deleting defendants or causes of action. However, none of this case law is helpful to
the Plaintiff, because (1) the Defendants in this case are not plaintiffs (and this distinction
matters) and (2) the Defendants have not amended the pleadings in this case at all. Moreover,
Plaintiff has not provided any case law demonstrating that any amendments or dismissals of other
cases after the venue motion is filed are of any relevance.
As described in the case law, the rights of Mr. O’Malley and Mr. Gilbert to have the case
against them tried in their county of residence are “ancient and valuable rights.” These rights
cannot be taken from them by the Plaintiff, which filed suit against them in the wrong county.
Nor can Mr. O’Malley’s and Mr. Gilbert’s rights be taken from them if a completely separate
defendant, BillFloat, has filed or dismissed its own affirmative litigation in this or other courts.
1. Mr. O’Malley’s and Mr. Gilbert’s rights to defend the case against them are
“ancient and valuable right[s].”
California courts have held that the right of a defendant to have an action against him tried
in the county of his residence is an “ancient and valuable right,” safeguarded by statute and
supported by many decisions. Kaluzok v. Brisson (1946) 27 Cal.2d 760, 763.
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SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP
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Conversely, the right of a plaintiff to have an action tried in another county than that in
which the defendant has his residence is an exception and, the plaintiff who claims such right has
the burden of establishing the exception. Cholakian & Associates v. Superior Court (2015) 186
Cal.Rptr.3d 525, 236 Cal. App.4th 361, 371 — 372.
2. The Plaintiff's “freezing of the facts” rule does not assist it, because the
pleadings to which it refers have not changed.
Plaintiff goes on at some length about its so-called “freezing of the facts rule.” This rule
is described in, for example, Gutierrez v. Superior Court (1966) 243 Cal.App.2d 710, 716
(describing the rule as requiring that a motion to change venue be determined by the pleadings
“as they stand at the time the motion is interposed”). However, the pleadings in this case have
not changed since this motion was “interposed.” The motion was filed on March 10, 2016. The
Plaintiff's complaint has not changed since that time. That is the only pleading that matters.
Whether the cross-complaint was changed does not matter from a venue standpoint.
K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 506 (holding that “a cross-
defendant is not entitled to seek a change of venue” and that “the cross-complaint is to be tried in
the same county that has been established as the proper venue based on the original complaint”).
However, even if the cross-complaint did matter, it has not changed since March 10, 2016, either.
The “facts” of this case have been “frozen” since well before this motion was filed, not so much
by operation of law, but because the pleadings in this case themselves have not changed.
The Plaintiff can point to no case where the “freezing of the facts” rule has been applied to
facts outside of the operative pleading itself — i.e. the complaint in the lawsuit whose venue is
being contested. Here, the Plaintiff wants the whole world to be frozen while this motion is
decided. This is not how the law works.
In fact, Plaintiff provides a lot of case law that sounds like it is helpful to its position, but
really has no bearing whatsoever on the outcome of this motion. For example, Plaintiff cites to
“Donahoe v. Wooster, 163 Cal. 1 14 (1912) (‘[T]he right to a change of place of trial must be
determined by the conditions existing at the time of the appearance of the party demanding the
change.’] (Plaintiffs Supplemental Brief at p. 3 (herein, Pl. Supp. at__””)). So what does this
mean for the instant case? It means that the case stays in San Francisco: the Plaintiff, GPB, is the
party demanding the change of venue. It “appeared” in the case the day it filed the lawsuit,
October 2, 2016. The conditions existing on that date all point to the fact that the lawsuit was
filed in the wrong county, and that San Francisco is the place for trial.
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SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP
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Notice also that this language demonstrates that a cross-defendant cannot complain of
improper venue as GPB does here; the only parties who “appear” in cases are defendants.
Plaintiffs initiate lawsuits; defendants appear. Cross-defendants who are already parties do not
“appear.”
The Plaintiff also warns that plaintiffs should not be permitted “to game venue by
amendments to a complaint or adding or dismissing defendants to affect a venue determination. . .
.” (Id.) Why does Plaintiff even say this? Nobody has amended any complaints or added or
dismissed any defendants in this case.
In short, the “freezing of the facts” concept does not help the Plaintiff.
3. The Plaintiff's argument assumes that the parties to this case have changed;
they have not.
Many of the cases cited by Plaintiff involve parties that were added to a case in order to
create venue where none existed before. The parties to this case have not changed since it was
filed. Plaintiff Golden Pacific Bank, N.A. (“GPB”) filed suit against BillFloat, Inc., Ryan Gilbert
and Sean O'Malley on October 2, 2016; these parties have not changed to the present day.
4, The Plaintiff glosses over the fact that it complains about venue of a cross-
complaint, without even trying to explain why this fact makes no difference.
In its supplemental brief, the Plaintiff argues that “a plaintiff (in this case a cross-
complainant) attempting to game venue by amendments to a complaint or adding or dismissing
defendants to affect a venue determination is precisely the type of action that is foreclosed by” the
freezing of the facts rule. (PI. Supp. at 3.) However, the statute and the case law demonstrate that
cross-complaints do not affect venue. Defendants have been making this point at each step in
these proceedings, and Plaintiff has never refuted it — because it simply cannot do so. Despite
Plaintiff's deepest desire, the Court should not ignore the fundamental legal tenet that cross-
complaints do not impact venue.
5. There has been no “After-The-Fact Addition Or Dismissal Of Defendants.”
The Plaintiff then argues in its brief that Karst and its progeny “Establishes That An
After-The-Fact Addition Or Dismissal Of Defendants Is Not Considered ‘Changed Conditions,’
For Purposes of Venue.” (Pl. Supp. at 4.) However, there have not been any additions or
dismissals of defendants in this case. The pleadings in this case have remained the same since
they were filed. The Plaintiff’s cited changed circumstances cases are not relevant, because they
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deal with changes made to the parties to the case at issue, not what happened in (or to) another
case.
6. Defendants have not attempted to “alter the mix of parties” or “camouflage
the] claims” made in the cross-complaint.
Plaintiff then makes another straw man argument. It argues that it is bad to “alter the mix
of parties” or to “camouflage [the] claims” made in pleadings. (Pl. Supp. at 6.) However, the
Defendants have not altered the mix of parties in this lawsuit. The lawsuit began on October 2,
2016 with four parties, and those same for parties remain with no additions, subtractions,
substitutions or alterations.
Moreover, the pleadings have not changed, and so it is not clear what Plaintiff means by
“camouflaging [the] claims.” Plaintiff does not attempt to explain how any of the claims in the
cross-complaint have been camouflaged, or even what that means.
7. To the extent it is still good law, Karst is not undermined by intentional acts.
Plaintiff next argues that it has read between the lines of the reported cases, and has
concluded that a party cannot escape res judicata by intentional acts. However, in California, this
is not true, and Plaintiff has not proven that it is. In two of the cases argued by Plaintiff, the party
waited, intentionally, for a period of time, and then re-filed the lawsuit. See People v. Spring
Valley Co. Ltd. (1958) 109 Cal. App.2d 656, 667 — 668 and Hurd v. Albert (1931) 214 Cal. 15. In
both cases, the court held that the plaintiff was not bound by res judicata despite its intentional
acts.
Moreover, in Crain v. Crain (1960) 187 Cal.App.2d 825, the husband filed a petition to
modify a decree of divorce. It was denied. He then waited eight months, remarried and had a
child. The court found that despite these intentional acts, the husband was not precluded by res
judicata from re-litigating the issue.
While this is not an exhaustive list of cases refuting Plaintiff's “intentional acts” theory, it
provides precedential support that Plaintiff's theory holds no water.
8. To suit its needs, Plaintiff has changed what it sees as the policies underlying
Karst.
In its supplemental brief, Plaintiff now finds a new lesson to be read from Karst.
However, the principle its lawyers argued in the Contra Costa case (and which Judge Spanos and
this Court have found compelling) is that when a lawsuit is filed in the wrong court (as happened
here) then the defendants get to choose the venue. As the following demonstrates, the
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SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP
195 Montgomery Str
(415) 277-7200
San Francisco,
defendants’ argument in that case, also made by GPB’s current counsel, applies equally to gut
GPB’s position in this case:!
Code of Civil Procedure section 398(b) provides that when a plaintiff files in the improper
court “the action or proceeding shall be transferred to ... a proper court, in a proper county,
designated by the defendant.” Code Civ. Proc. § 398(b) (emphasis added). Allowing
[GPB] to escape an adverse venue ruling . . . would effectively make this provision a
nullity and invite the “trifling with the court,” that the above courts have discouraged . . .
see also Abbey y. Schaefer, 108 Cal.App.2d 554, 556-557 (1952) (“the parties defendant,
as revealed by the pleadings existing at the time the [motion] is [filed] ... are the only
parties to be considered on a motion for change of place of trial.”)... Here, it was [GPB]
that chose the defendants it named in [this lawsuit] and bound itself to the venue rules
applicable to the claims as initially presented. Accordingly, [GPB] is still bound by the
[Sacramento] Court’s prior determination transferring venue to [San Francisco] County
Superior Court. It cannot escape that order by ... procedural gimmick .. . .
(Defendants’ Supplemental Request for Judicial Notice in Support of Plaintiff/Cross-Defendant’s
Motion to Change Venue, Att. 18, pp. 3 — 4, emphasis in original.) As mentioned, in this case,
the Defendants choose San Francisco. This ends the Court’s inquiry into the matter.
9 Defendants did not file a “subsequent case” as Plaintiff argues.
Plaintiff then argues as follows.
If BillFloat, in the face of an adverse venue ruling, could then dismiss Defendants (with or
without prejudice) and file a subsequent case based upon the same facts as its original
claims, altering the mix of parties sued, there would be no reason for a court to limit
consideration of the initial motion to the circumstances as they existed at that time the
motion to transfer venue was filed.
(Pl. Supp. at 7.) While this argument does not make grammatical sense, it appears to be an
argument that BillFloat first dismissed some parties and then filed a new lawsuit. It did neither.
Instead, BillFloat filed a cross-complaint in an already existing case, and then dismissed a
separate lawsuit against other parties, in that order.
10. Judicial economy has been served by the dismissal of the Contra Costa case.
Plaintiff next argues that BillFloat’s dismissal of the Contra Costa case somehow
frustrates judicial economy. This is an argument only a lawyer could say with a straight face.
The fact that the second lawsuit no longer pends means that there was no writ filed; that the
Sacramento Superior Court was not troubled with opening a new file and accepting transfer of the
case; that there would be no motion to consolidate the cases; that there would be no motion to
1 Obviously, Defendants have substituted the parties and the courts in the bracketed
language to make the point that Plaintiff's counsel’s arguments made in the Contra Costa case
benefit Defendants in this case.
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transfer the consolidated case back to San Francisco for the convenience of the witnesses; and so
forth.
It also means that there will be no demurrers or dispositive motions filed on the claims
made against the Contra Costa case defendants, and that they will not have to face trial. Given
how heavily the parties to these cases have contested venue, untold resources were saved by the
dismissal of the Contra Costa case.
11. Defendant BillFloat did not “dismiss certain defendants” as Plaintiff claims;
instead, it dismissed an entire separate lawsuit against different Defendants.
Next, Plaintiff asks that the Court refuse “to allow BillFloat to be relieved from the
consequences of its intentional gamesmanship by a [sic] subsequently dismissing certain
defendants after the order transferring its claims to a different county.” (Pl. Supp. at 7, emphasis
omitted.) The wording of this argument is based on Plaintiff's flawed reading of the case law
upon which it bases its arguments, as previously briefed. Therefore, it is necessary to point out
that Plaintiff misrepresents what happened in order to try to make the facts fit with its argument.
However, BillFloat did not “dismiss certain defendants.” Wording it this way makes it seem like
it fits with language that Plaintiff has quoted about conduct that courts have frowned upon.
Rather, BillFloat dismissed an entire, separate lawsuit against non-parties to the present dispute.
When viewed correctly in this manner, it is clear that Plaintiff's argument fails.
12. BillFloat was under no duty — contractual or otherwise — to provide ten days’
notice of its intention to file a cause of action for declaratory relief and the
appointment of a judicial referee, as these are not allegations of breach of
contract.
Plaintiff next makes an argument that in filing its initial complaint for declaratory relief
and for appointment of a judicial referee, that BillFloat somehow violated the terms of one of the
Parties’ contracts. Not true. The provision Plaintiff complains of, but does not quote, reads as
follows.
12.2 Cure Period. Prior to seeking judicial relief due to a perceived breach of this
Agreement by a Party, the non-breaching Party shall provide a written notice containing:
(i) a detailed description of the perceived breach, and (ii) a detailed description of the
steps necessary to cure the breach. The Party alleged to be breaching the Agreement shall
have ten (10) business days to attempt to cure the perceived breach.
This means that before one of the Parties sued the other for breach of contract, the aggrieved
Party had to give the allegedly breaching party ten days’ notice of the alleged breach, so that the
allegedly breaching Party would have an opportunity to cure the breach.
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SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEeB
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However, this provision does not mean that the Parties could never file suit for anything
without first giving ten days’ notice. The notice was required only for cases involving breach of
contract. Therefore, BillFloat did not have to provide GPB ten days’ notice of its intent to sue,
because its case was not for breach of contract; it was for declaratory relief and for appointment
of a judicial referee to hear a long account.
Of course, reference to the San Francisco case is irrelevant. Plaintiff itself stated that such
a lawsuit did not present common issues of fact or law that predominated or were significant to
the instant case, and that case has already been dismissed.
In that context, Plaintiff stated the following in opposition to BillFloat’s motion to transfer
this case to San Francisco and to consolidate with the San Francisco case:
B. The San Francisco Action Does Not Present a “Common Question of Fact or
Law” That Is “Predominating and Significant” To the Sacramento Action
* * * * *
Here, BillFloat argues the San Francisco action presents common questions of fact and
law that are predominating and significant to the Sacramento action. BillFloat’s argument
is clearly erroneous, as the San Francisco action simply does not present common
questions of fact and law that are predominating and significant to the Sacramento action.
[Lengthy discussion omitted to save space]
For these reasons, the San Francisco action does not present common questions of fact and
law that are predominating and significant to the Sacramento action. Accordingly, the
instant motion to transfer and consolidate should be denied.
(Defendant’s Request for Judicial Notice in Support of Opposition to Plaintiff/Cross-Defendant’s
Motion to Change Venue, Att. M, pp. 2 — 5, emphasis in original (herein “Def. RFJN ISO Opp.,
Att. _.”))
Thus, the prior San Francisco case simply does not bear on venue decisions related to this
13. The Plaintiff misrepresents the nature of the San Francisco case to suit its
needs, in violation of its duty of candor.
Even though BillFloat’s initial lawsuit (the San Francisco case) was for declaratory relief
and for appointment of a judicial referee to hear a long account, Plaintiff deliberately attempts to
mislead the Court. It quotes the statute and case law stating that a defendant to a case only for
declaratory relief has no duty to file a compulsory cross-complaint, as if this law applies in this
case. It does not, because Plaintiff omits the fact that the San Francisco case also included a
second cause of action for appointment of a judicial referee to hear a long account. The law
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=
San Francisco, CA 94104
Plaintiff cites is not applicable because as filed, the San Francisco case sought more than merely
declaratory relief. The law Plaintiff cites is in line with the Code of Civil Procedure section 1062,
which provides that if a case is one for declaratory relief only, it is entitled to a preferential trial
setting. The legislature obviously intended to allow parties to an instrument to seek a court’s
determination as to the rights and obligations under the instrument, even before a breach
occurred. The legislature recognized, rightly, that the Compulsory Cross-complaint Statute, set
forth at Code of Civil Procedure section 426.30, might complicate this process, if a defendant to
an action solely for declaratory relief felt compelled to air all of its grievances in response. The
legislature therefore provided that a defendant to an action solely for declaratory relief was not
bound to file a cross-complaint.
However, the San Francisco case included causes of action for both declaratory relief and
for appointment of a judicial referee to hear a long account. Accordingly, the case was not
entitled to a preferential trial setting under Code of Civil Procedure section 1062, and GPB was
therefore not relieved of its obligations to file its case as a cross-complaint pursuant to Code of
Civil Procedure section 426.30.
14. BillFloat absolutely did challenge the San Francisco Court’s ruling that
common issues of fact and law did not predominate.
Again, Plaintiff misrepresents something to the Court. Plaintiff argues that BillFloat
never argued that “common issues of law and fact between the Golden Pacific complaint and the
declaratory relief action did not predominate.” (PI. Supp. at 9.) This is demonstrably false.
On October 19, 2015, BillFloat filed a motion to transfer this case from Sacramento to this
Court and to consolidate it with the San Francisco action. In connection with this motion,
BillFloat’s counsel stated in his declaration that “Plaintiff seeks to transfer to this Court the action
pending in Sacramento County because significant common questions of law and fact
predominate in both of these actions.” Counsel further stated, “Significant common questions
of law and fact predominate in both of these actions. Both of the actions involve the core
issues of whether SBA 7(a) loans in excess of $25,000 or which have different underwriting
standards, are new financial products such that Golden Pacific Bank, N.A. would enjoy “most
favored nation status; and whether the breaches of contract [GPB] alleges in its complaint filed in
Sacramento County are based upon a proper reading of the Parties’ contract.” Counsel also stated,
“Consolidation of the actions will encourage settlement because litigants will not be inclined to
settle their cases if common issues are being litigated in other courts in front of different
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SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP
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judges with the possibility of different outcomes.” See Def. RFJN ISO Opp., Att. L,
paragraphs 4, 8 and 11 (exhibits omitted, emphasis added). It is hard to understand why Plaintiff
would argue that BillFloat never asserted that common questions of law and fact predominated in
light of the fact that this was the very essence of BillFloat’s motion to transfer and consolidate.
15. The Plaintiff cannot hold the alleged actions of one Defendant against its Co-
defendants.
Plaintiff's entire argument is premised upon the attribution of supposed wrongdoing by
Defendant BillFloat to Defendants Gilbert and O’ Malley in an attempt to deprive the latter of
their rights to be tried where they live. However, this attempt fails as a matter of law. California
law is clear that where none of the defendants is a resident of the county in which the action is
brought, each defendant has a right to change of venue, and no defendant can be denied that right
by the conduct of any other defendant. Marshall v. Benedict (1958) 161 Cal.App.2d 284, 286 —
287. This means that Gilbert and O’Malley’s right to choose the place of venue is unaffected by
any cases BillFloat may have filed and/or dismissed, making Plaintiff's entire argument moot.
The Cholakian court made clear that the defendants’ rights are personal to each defendant,
and cannot be waived by the actions of another defendant:
“[I]t has been declared to be the policy of the law jealously to guard the right of the
defendant to have a trial in the county where he resides....” (Neet v. Holmes (1942) 19
Cal.2d 605, 612, 122 P.2d 557.) “Because the law favors the right of trial at the
defendant's residence, a plaintiff who lays venue elsewhere must be able to show the
action is either local or is a transitory action triable outside the county of the defendant's
residence. [Citations.]” (Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469,
39 Cal.Rptr.2d 787.)
This right is personal to each defendant and cannot be waived by another defendant. “‘The
language of section 395 requires the action to be tried in the county in which the
defendants, or some of them, reside, not where they do not reside. The consent of certain
defendants not residing in the county where the action is brought could not take away
fiom the defendants who did not reside there the right to have the cause transferred to the
county of their residence. To hold otherwise would be a violation of the provisions of
section 395.’ ” (Happy Valley, supra, 206 Cal. at p. 521, 274 P. 977, quoting Wood, Curtis
& Co. v. Herman Min. Co. (1903) 139 Cal. 713, 716, 73 P. 588, italics added.) Because
the right of each defendant to defend in its own county cannot be forfeited by the actions
of other defendants, the answers of other defendants cannot take the place of each
defendant’s own answer, necessary to permit consideration of opposition to that same
defendant's motion to transfer venue.
Cholakian supra, 236 Cal.App.4th at 371 (emphasis in original).
Mt
Mt
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16. Motion to quash.
In addition to denying the motion to change venue, the Court should also deny the
Plaintiff's motion for protective order. A hearing on that motion was originally held before the
judge pro tem on April 27, 2016. The judge pro tem indicated he was going to recommend to the
Court that the motion be denied. Nevertheless, the Parties have been meeting and conferring as to
the wording of the categories and continue to do so. In the meantime, the depositions should be
order to commence no later than July 18, 2016, nearly four months after they were first noticed,
which provides the Plaintiff with more than ample time to prepare.
CONCLUSION
Plaintiff's supplemental brief does not address how it is not bound by Mr. O’Malley’s and
Mr. Gilbert’s “ancient and valuable right” to defend in the county of their residence, nor has
Plaintiff ever argued that this case falls under a statutory exception to this right. Plaintiff has also
not addressed the binding nature of the Sacramento court’s ruling that this case is properly venued
in San Francisco, or explained why its res judicata argument does not apply to this ruling, or to
this Court’s prior ruling that venue of a case involving GPB and BillFloat is proper in San
Francisco because the contract was formed here. Plaintiff has never addressed these issues in its
briefing, hoping instead the Court will simply ignore these salient points.
The Court can, and should, look within the confines of this case to determine venue. It
should look at the complaint filed on October 2, 2015 and measure venue accordingly.
If the Court is tempted to look outside the pleadings filed in this case, it should not accept
Plaintiff's single, cherry-picked ruling, but should consider the Sacramento court’s ruling that this
case is properly venued in San Francisco, this Court’s prior ruling that venue of a case involving
GPB and BillFloat is proper in San Francisco because the contract was formed here, and the
Contra Costa court’s ruling that to rule otherwise would frustrate the legislative purpose behind
Code of Civil Procedure section 398.
Whether the Court considers only the procedural history of this case, or considers all of
the rulings made in this case and others, it is clear the Plaintiffs motion should be denied.
Date: June 15, 2016 Respectfully submitted,
. WEBB #193822
JENNIFER D. YU #291603
Attorneys for BILLFLOAT, INC.
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SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUE
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WEBB LEGAL GROUP 155 Montgomery Street, Suite 1200 San Francisco, CA 94104 (415) 277-7200 WILLIAM T. WEBB #193832 JENNIFER D. YU #291603 155 Montgomery Street, Suite 1200 Es San Francisco, CA 94104 (415) 277-7200 7 ed ILE D (415) 277-7210 (fax) psi deine’ Attorneys for BILLFLOAT, INC., 06/15/2016 RYAN GILBERT AND SEAN O’MALLEY Clerk of the Court BY:DAVID YUEN Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) GOLDEN PACIFIC BANK, N.A., Case No.: CGC-16-549804 Plaintiff, SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S v. MOTION TO CHANGE VENUE BILLFLOAT, INC., RYAN GILBERT, SEAN O’MALLEY, DOES 1-50, Date: June 22, 2016 Time: 9:30 a.m. Dept: 302 Defendants. Cross-Complainant, Vv. GOLDEN PACIFIC BANK, N.A., and ROES 1-50, Cross-Defendants. ) | fe aeaaeaeaeaaaeaae BILLFLOAT, INC. } } ) SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUE,WEBB LEGAL GROUP 195 Montgomery Str (415) 277-7200 San Francisco, INTRODUCTION Plaintiffs supplemental brief is designed merely to alarm. It argues that dogmatic consistency with a single ruling on different facts in a separate case should trump both black letter law and prior court decisions in this very case. The law is clear that once a lawsuit is filed, the residence of any individual defendant drives the venue decision. In other words, once a plaintiff files suit in the wrong court, as happened here, the defendant, not the plaintiff, gets to choose the county in which the lawsuit will proceed. Moreover, venue is assessed at the time the lawsuit is filed, not when any cross- complaint is filed; a cross-complaint has no bearing on venue. These points are well-settled law and have been briefed already in this case. Instead of proving that these points are inapplicable here for some reason, Plaintiff simply ignores this statutory and well-settled case law. It is neither necessary nor advisable for the Court to follow the Plaintiff’s argument, but since the Plaintiff has made it, out of an abundance of caution, the Defendants are forced to refute the points the Plaintiff tries to make, all of which are irrelevant. Most of the Plaintiff's supplemental brief consists of case law saying that a plaintiff cannot affect venue by amending the pleadings of the case that is the subject of the venue motion, by adding or deleting defendants or causes of action. However, none of this case law is helpful to the Plaintiff, because (1) the Defendants in this case are not plaintiffs (and this distinction matters) and (2) the Defendants have not amended the pleadings in this case at all. Moreover, Plaintiff has not provided any case law demonstrating that any amendments or dismissals of other cases after the venue motion is filed are of any relevance. As described in the case law, the rights of Mr. O’Malley and Mr. Gilbert to have the case against them tried in their county of residence are “ancient and valuable rights.” These rights cannot be taken from them by the Plaintiff, which filed suit against them in the wrong county. Nor can Mr. O’Malley’s and Mr. Gilbert’s rights be taken from them if a completely separate defendant, BillFloat, has filed or dismissed its own affirmative litigation in this or other courts. 1. Mr. O’Malley’s and Mr. Gilbert’s rights to defend the case against them are “ancient and valuable right[s].” California courts have held that the right of a defendant to have an action against him tried in the county of his residence is an “ancient and valuable right,” safeguarded by statute and supported by many decisions. Kaluzok v. Brisson (1946) 27 Cal.2d 760, 763. 1 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 195 Montgomery Str (415) 277-7200 San Francisco, Conversely, the right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is an exception and, the plaintiff who claims such right has the burden of establishing the exception. Cholakian & Associates v. Superior Court (2015) 186 Cal.Rptr.3d 525, 236 Cal. App.4th 361, 371 — 372. 2. The Plaintiff's “freezing of the facts” rule does not assist it, because the pleadings to which it refers have not changed. Plaintiff goes on at some length about its so-called “freezing of the facts rule.” This rule is described in, for example, Gutierrez v. Superior Court (1966) 243 Cal.App.2d 710, 716 (describing the rule as requiring that a motion to change venue be determined by the pleadings “as they stand at the time the motion is interposed”). However, the pleadings in this case have not changed since this motion was “interposed.” The motion was filed on March 10, 2016. The Plaintiff's complaint has not changed since that time. That is the only pleading that matters. Whether the cross-complaint was changed does not matter from a venue standpoint. K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 506 (holding that “a cross- defendant is not entitled to seek a change of venue” and that “the cross-complaint is to be tried in the same county that has been established as the proper venue based on the original complaint”). However, even if the cross-complaint did matter, it has not changed since March 10, 2016, either. The “facts” of this case have been “frozen” since well before this motion was filed, not so much by operation of law, but because the pleadings in this case themselves have not changed. The Plaintiff can point to no case where the “freezing of the facts” rule has been applied to facts outside of the operative pleading itself — i.e. the complaint in the lawsuit whose venue is being contested. Here, the Plaintiff wants the whole world to be frozen while this motion is decided. This is not how the law works. In fact, Plaintiff provides a lot of case law that sounds like it is helpful to its position, but really has no bearing whatsoever on the outcome of this motion. For example, Plaintiff cites to “Donahoe v. Wooster, 163 Cal. 1 14 (1912) (‘[T]he right to a change of place of trial must be determined by the conditions existing at the time of the appearance of the party demanding the change.’] (Plaintiffs Supplemental Brief at p. 3 (herein, Pl. Supp. at__””)). So what does this mean for the instant case? It means that the case stays in San Francisco: the Plaintiff, GPB, is the party demanding the change of venue. It “appeared” in the case the day it filed the lawsuit, October 2, 2016. The conditions existing on that date all point to the fact that the lawsuit was filed in the wrong county, and that San Francisco is the place for trial. 2 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 195 Montgomery Str (415) 277-7200 San Francisco, Notice also that this language demonstrates that a cross-defendant cannot complain of improper venue as GPB does here; the only parties who “appear” in cases are defendants. Plaintiffs initiate lawsuits; defendants appear. Cross-defendants who are already parties do not “appear.” The Plaintiff also warns that plaintiffs should not be permitted “to game venue by amendments to a complaint or adding or dismissing defendants to affect a venue determination. . . .” (Id.) Why does Plaintiff even say this? Nobody has amended any complaints or added or dismissed any defendants in this case. In short, the “freezing of the facts” concept does not help the Plaintiff. 3. The Plaintiff's argument assumes that the parties to this case have changed; they have not. Many of the cases cited by Plaintiff involve parties that were added to a case in order to create venue where none existed before. The parties to this case have not changed since it was filed. Plaintiff Golden Pacific Bank, N.A. (“GPB”) filed suit against BillFloat, Inc., Ryan Gilbert and Sean O'Malley on October 2, 2016; these parties have not changed to the present day. 4, The Plaintiff glosses over the fact that it complains about venue of a cross- complaint, without even trying to explain why this fact makes no difference. In its supplemental brief, the Plaintiff argues that “a plaintiff (in this case a cross- complainant) attempting to game venue by amendments to a complaint or adding or dismissing defendants to affect a venue determination is precisely the type of action that is foreclosed by” the freezing of the facts rule. (PI. Supp. at 3.) However, the statute and the case law demonstrate that cross-complaints do not affect venue. Defendants have been making this point at each step in these proceedings, and Plaintiff has never refuted it — because it simply cannot do so. Despite Plaintiff's deepest desire, the Court should not ignore the fundamental legal tenet that cross- complaints do not impact venue. 5. There has been no “After-The-Fact Addition Or Dismissal Of Defendants.” The Plaintiff then argues in its brief that Karst and its progeny “Establishes That An After-The-Fact Addition Or Dismissal Of Defendants Is Not Considered ‘Changed Conditions,’ For Purposes of Venue.” (Pl. Supp. at 4.) However, there have not been any additions or dismissals of defendants in this case. The pleadings in this case have remained the same since they were filed. The Plaintiff’s cited changed circumstances cases are not relevant, because they 3 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 195 Montgomery Str (415) 277-7200 San Francisco, deal with changes made to the parties to the case at issue, not what happened in (or to) another case. 6. Defendants have not attempted to “alter the mix of parties” or “camouflage the] claims” made in the cross-complaint. Plaintiff then makes another straw man argument. It argues that it is bad to “alter the mix of parties” or to “camouflage [the] claims” made in pleadings. (Pl. Supp. at 6.) However, the Defendants have not altered the mix of parties in this lawsuit. The lawsuit began on October 2, 2016 with four parties, and those same for parties remain with no additions, subtractions, substitutions or alterations. Moreover, the pleadings have not changed, and so it is not clear what Plaintiff means by “camouflaging [the] claims.” Plaintiff does not attempt to explain how any of the claims in the cross-complaint have been camouflaged, or even what that means. 7. To the extent it is still good law, Karst is not undermined by intentional acts. Plaintiff next argues that it has read between the lines of the reported cases, and has concluded that a party cannot escape res judicata by intentional acts. However, in California, this is not true, and Plaintiff has not proven that it is. In two of the cases argued by Plaintiff, the party waited, intentionally, for a period of time, and then re-filed the lawsuit. See People v. Spring Valley Co. Ltd. (1958) 109 Cal. App.2d 656, 667 — 668 and Hurd v. Albert (1931) 214 Cal. 15. In both cases, the court held that the plaintiff was not bound by res judicata despite its intentional acts. Moreover, in Crain v. Crain (1960) 187 Cal.App.2d 825, the husband filed a petition to modify a decree of divorce. It was denied. He then waited eight months, remarried and had a child. The court found that despite these intentional acts, the husband was not precluded by res judicata from re-litigating the issue. While this is not an exhaustive list of cases refuting Plaintiff's “intentional acts” theory, it provides precedential support that Plaintiff's theory holds no water. 8. To suit its needs, Plaintiff has changed what it sees as the policies underlying Karst. In its supplemental brief, Plaintiff now finds a new lesson to be read from Karst. However, the principle its lawyers argued in the Contra Costa case (and which Judge Spanos and this Court have found compelling) is that when a lawsuit is filed in the wrong court (as happened here) then the defendants get to choose the venue. As the following demonstrates, the 4 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 195 Montgomery Str (415) 277-7200 San Francisco, defendants’ argument in that case, also made by GPB’s current counsel, applies equally to gut GPB’s position in this case:! Code of Civil Procedure section 398(b) provides that when a plaintiff files in the improper court “the action or proceeding shall be transferred to ... a proper court, in a proper county, designated by the defendant.” Code Civ. Proc. § 398(b) (emphasis added). Allowing [GPB] to escape an adverse venue ruling . . . would effectively make this provision a nullity and invite the “trifling with the court,” that the above courts have discouraged . . . see also Abbey y. Schaefer, 108 Cal.App.2d 554, 556-557 (1952) (“the parties defendant, as revealed by the pleadings existing at the time the [motion] is [filed] ... are the only parties to be considered on a motion for change of place of trial.”)... Here, it was [GPB] that chose the defendants it named in [this lawsuit] and bound itself to the venue rules applicable to the claims as initially presented. Accordingly, [GPB] is still bound by the [Sacramento] Court’s prior determination transferring venue to [San Francisco] County Superior Court. It cannot escape that order by ... procedural gimmick .. . . (Defendants’ Supplemental Request for Judicial Notice in Support of Plaintiff/Cross-Defendant’s Motion to Change Venue, Att. 18, pp. 3 — 4, emphasis in original.) As mentioned, in this case, the Defendants choose San Francisco. This ends the Court’s inquiry into the matter. 9 Defendants did not file a “subsequent case” as Plaintiff argues. Plaintiff then argues as follows. If BillFloat, in the face of an adverse venue ruling, could then dismiss Defendants (with or without prejudice) and file a subsequent case based upon the same facts as its original claims, altering the mix of parties sued, there would be no reason for a court to limit consideration of the initial motion to the circumstances as they existed at that time the motion to transfer venue was filed. (Pl. Supp. at 7.) While this argument does not make grammatical sense, it appears to be an argument that BillFloat first dismissed some parties and then filed a new lawsuit. It did neither. Instead, BillFloat filed a cross-complaint in an already existing case, and then dismissed a separate lawsuit against other parties, in that order. 10. Judicial economy has been served by the dismissal of the Contra Costa case. Plaintiff next argues that BillFloat’s dismissal of the Contra Costa case somehow frustrates judicial economy. This is an argument only a lawyer could say with a straight face. The fact that the second lawsuit no longer pends means that there was no writ filed; that the Sacramento Superior Court was not troubled with opening a new file and accepting transfer of the case; that there would be no motion to consolidate the cases; that there would be no motion to 1 Obviously, Defendants have substituted the parties and the courts in the bracketed language to make the point that Plaintiff's counsel’s arguments made in the Contra Costa case benefit Defendants in this case. 5 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 155 Montgomery Street, Suite 1200 San Francisco, CA 94104 277-7200 transfer the consolidated case back to San Francisco for the convenience of the witnesses; and so forth. It also means that there will be no demurrers or dispositive motions filed on the claims made against the Contra Costa case defendants, and that they will not have to face trial. Given how heavily the parties to these cases have contested venue, untold resources were saved by the dismissal of the Contra Costa case. 11. Defendant BillFloat did not “dismiss certain defendants” as Plaintiff claims; instead, it dismissed an entire separate lawsuit against different Defendants. Next, Plaintiff asks that the Court refuse “to allow BillFloat to be relieved from the consequences of its intentional gamesmanship by a [sic] subsequently dismissing certain defendants after the order transferring its claims to a different county.” (Pl. Supp. at 7, emphasis omitted.) The wording of this argument is based on Plaintiff's flawed reading of the case law upon which it bases its arguments, as previously briefed. Therefore, it is necessary to point out that Plaintiff misrepresents what happened in order to try to make the facts fit with its argument. However, BillFloat did not “dismiss certain defendants.” Wording it this way makes it seem like it fits with language that Plaintiff has quoted about conduct that courts have frowned upon. Rather, BillFloat dismissed an entire, separate lawsuit against non-parties to the present dispute. When viewed correctly in this manner, it is clear that Plaintiff's argument fails. 12. BillFloat was under no duty — contractual or otherwise — to provide ten days’ notice of its intention to file a cause of action for declaratory relief and the appointment of a judicial referee, as these are not allegations of breach of contract. Plaintiff next makes an argument that in filing its initial complaint for declaratory relief and for appointment of a judicial referee, that BillFloat somehow violated the terms of one of the Parties’ contracts. Not true. The provision Plaintiff complains of, but does not quote, reads as follows. 12.2 Cure Period. Prior to seeking judicial relief due to a perceived breach of this Agreement by a Party, the non-breaching Party shall provide a written notice containing: (i) a detailed description of the perceived breach, and (ii) a detailed description of the steps necessary to cure the breach. The Party alleged to be breaching the Agreement shall have ten (10) business days to attempt to cure the perceived breach. This means that before one of the Parties sued the other for breach of contract, the aggrieved Party had to give the allegedly breaching party ten days’ notice of the alleged breach, so that the allegedly breaching Party would have an opportunity to cure the breach. 6 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEeB 22 ne = & Be 2s = = Ss = s< 30 3 Ss = i a = & a However, this provision does not mean that the Parties could never file suit for anything without first giving ten days’ notice. The notice was required only for cases involving breach of contract. Therefore, BillFloat did not have to provide GPB ten days’ notice of its intent to sue, because its case was not for breach of contract; it was for declaratory relief and for appointment of a judicial referee to hear a long account. Of course, reference to the San Francisco case is irrelevant. Plaintiff itself stated that such a lawsuit did not present common issues of fact or law that predominated or were significant to the instant case, and that case has already been dismissed. In that context, Plaintiff stated the following in opposition to BillFloat’s motion to transfer this case to San Francisco and to consolidate with the San Francisco case: B. The San Francisco Action Does Not Present a “Common Question of Fact or Law” That Is “Predominating and Significant” To the Sacramento Action * * * * * Here, BillFloat argues the San Francisco action presents common questions of fact and law that are predominating and significant to the Sacramento action. BillFloat’s argument is clearly erroneous, as the San Francisco action simply does not present common questions of fact and law that are predominating and significant to the Sacramento action. [Lengthy discussion omitted to save space] For these reasons, the San Francisco action does not present common questions of fact and law that are predominating and significant to the Sacramento action. Accordingly, the instant motion to transfer and consolidate should be denied. (Defendant’s Request for Judicial Notice in Support of Opposition to Plaintiff/Cross-Defendant’s Motion to Change Venue, Att. M, pp. 2 — 5, emphasis in original (herein “Def. RFJN ISO Opp., Att. _.”)) Thus, the prior San Francisco case simply does not bear on venue decisions related to this 13. The Plaintiff misrepresents the nature of the San Francisco case to suit its needs, in violation of its duty of candor. Even though BillFloat’s initial lawsuit (the San Francisco case) was for declaratory relief and for appointment of a judicial referee to hear a long account, Plaintiff deliberately attempts to mislead the Court. It quotes the statute and case law stating that a defendant to a case only for declaratory relief has no duty to file a compulsory cross-complaint, as if this law applies in this case. It does not, because Plaintiff omits the fact that the San Francisco case also included a second cause of action for appointment of a judicial referee to hear a long account. The law 1 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 155 Montgomery Street, Suite 1200 277-7200 = San Francisco, CA 94104 Plaintiff cites is not applicable because as filed, the San Francisco case sought more than merely declaratory relief. The law Plaintiff cites is in line with the Code of Civil Procedure section 1062, which provides that if a case is one for declaratory relief only, it is entitled to a preferential trial setting. The legislature obviously intended to allow parties to an instrument to seek a court’s determination as to the rights and obligations under the instrument, even before a breach occurred. The legislature recognized, rightly, that the Compulsory Cross-complaint Statute, set forth at Code of Civil Procedure section 426.30, might complicate this process, if a defendant to an action solely for declaratory relief felt compelled to air all of its grievances in response. The legislature therefore provided that a defendant to an action solely for declaratory relief was not bound to file a cross-complaint. However, the San Francisco case included causes of action for both declaratory relief and for appointment of a judicial referee to hear a long account. Accordingly, the case was not entitled to a preferential trial setting under Code of Civil Procedure section 1062, and GPB was therefore not relieved of its obligations to file its case as a cross-complaint pursuant to Code of Civil Procedure section 426.30. 14. BillFloat absolutely did challenge the San Francisco Court’s ruling that common issues of fact and law did not predominate. Again, Plaintiff misrepresents something to the Court. Plaintiff argues that BillFloat never argued that “common issues of law and fact between the Golden Pacific complaint and the declaratory relief action did not predominate.” (PI. Supp. at 9.) This is demonstrably false. On October 19, 2015, BillFloat filed a motion to transfer this case from Sacramento to this Court and to consolidate it with the San Francisco action. In connection with this motion, BillFloat’s counsel stated in his declaration that “Plaintiff seeks to transfer to this Court the action pending in Sacramento County because significant common questions of law and fact predominate in both of these actions.” Counsel further stated, “Significant common questions of law and fact predominate in both of these actions. Both of the actions involve the core issues of whether SBA 7(a) loans in excess of $25,000 or which have different underwriting standards, are new financial products such that Golden Pacific Bank, N.A. would enjoy “most favored nation status; and whether the breaches of contract [GPB] alleges in its complaint filed in Sacramento County are based upon a proper reading of the Parties’ contract.” Counsel also stated, “Consolidation of the actions will encourage settlement because litigants will not be inclined to settle their cases if common issues are being litigated in other courts in front of different 8 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 195 Montgomery Str (415) 277-7200 San Francisco, judges with the possibility of different outcomes.” See Def. RFJN ISO Opp., Att. L, paragraphs 4, 8 and 11 (exhibits omitted, emphasis added). It is hard to understand why Plaintiff would argue that BillFloat never asserted that common questions of law and fact predominated in light of the fact that this was the very essence of BillFloat’s motion to transfer and consolidate. 15. The Plaintiff cannot hold the alleged actions of one Defendant against its Co- defendants. Plaintiff's entire argument is premised upon the attribution of supposed wrongdoing by Defendant BillFloat to Defendants Gilbert and O’ Malley in an attempt to deprive the latter of their rights to be tried where they live. However, this attempt fails as a matter of law. California law is clear that where none of the defendants is a resident of the county in which the action is brought, each defendant has a right to change of venue, and no defendant can be denied that right by the conduct of any other defendant. Marshall v. Benedict (1958) 161 Cal.App.2d 284, 286 — 287. This means that Gilbert and O’Malley’s right to choose the place of venue is unaffected by any cases BillFloat may have filed and/or dismissed, making Plaintiff's entire argument moot. The Cholakian court made clear that the defendants’ rights are personal to each defendant, and cannot be waived by the actions of another defendant: “[I]t has been declared to be the policy of the law jealously to guard the right of the defendant to have a trial in the county where he resides....” (Neet v. Holmes (1942) 19 Cal.2d 605, 612, 122 P.2d 557.) “Because the law favors the right of trial at the defendant's residence, a plaintiff who lays venue elsewhere must be able to show the action is either local or is a transitory action triable outside the county of the defendant's residence. [Citations.]” (Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469, 39 Cal.Rptr.2d 787.) This right is personal to each defendant and cannot be waived by another defendant. “‘The language of section 395 requires the action to be tried in the county in which the defendants, or some of them, reside, not where they do not reside. The consent of certain defendants not residing in the county where the action is brought could not take away fiom the defendants who did not reside there the right to have the cause transferred to the county of their residence. To hold otherwise would be a violation of the provisions of section 395.’ ” (Happy Valley, supra, 206 Cal. at p. 521, 274 P. 977, quoting Wood, Curtis & Co. v. Herman Min. Co. (1903) 139 Cal. 713, 716, 73 P. 588, italics added.) Because the right of each defendant to defend in its own county cannot be forfeited by the actions of other defendants, the answers of other defendants cannot take the place of each defendant’s own answer, necessary to permit consideration of opposition to that same defendant's motion to transfer venue. Cholakian supra, 236 Cal.App.4th at 371 (emphasis in original). Mt Mt 9 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUEWEBB LEGAL GROUP 195 Montgomery Str (415) 277-7200 San Francisco, 16. Motion to quash. In addition to denying the motion to change venue, the Court should also deny the Plaintiff's motion for protective order. A hearing on that motion was originally held before the judge pro tem on April 27, 2016. The judge pro tem indicated he was going to recommend to the Court that the motion be denied. Nevertheless, the Parties have been meeting and conferring as to the wording of the categories and continue to do so. In the meantime, the depositions should be order to commence no later than July 18, 2016, nearly four months after they were first noticed, which provides the Plaintiff with more than ample time to prepare. CONCLUSION Plaintiff's supplemental brief does not address how it is not bound by Mr. O’Malley’s and Mr. Gilbert’s “ancient and valuable right” to defend in the county of their residence, nor has Plaintiff ever argued that this case falls under a statutory exception to this right. Plaintiff has also not addressed the binding nature of the Sacramento court’s ruling that this case is properly venued in San Francisco, or explained why its res judicata argument does not apply to this ruling, or to this Court’s prior ruling that venue of a case involving GPB and BillFloat is proper in San Francisco because the contract was formed here. Plaintiff has never addressed these issues in its briefing, hoping instead the Court will simply ignore these salient points. The Court can, and should, look within the confines of this case to determine venue. It should look at the complaint filed on October 2, 2015 and measure venue accordingly. If the Court is tempted to look outside the pleadings filed in this case, it should not accept Plaintiff's single, cherry-picked ruling, but should consider the Sacramento court’s ruling that this case is properly venued in San Francisco, this Court’s prior ruling that venue of a case involving GPB and BillFloat is proper in San Francisco because the contract was formed here, and the Contra Costa court’s ruling that to rule otherwise would frustrate the legislative purpose behind Code of Civil Procedure section 398. Whether the Court considers only the procedural history of this case, or considers all of the rulings made in this case and others, it is clear the Plaintiffs motion should be denied. Date: June 15, 2016 Respectfully submitted, . WEBB #193822 JENNIFER D. YU #291603 Attorneys for BILLFLOAT, INC. 10 SUPPLEMENTAL REPLY TO PLAINTIFF/CROSS-DEFENDANT’S MOTION TO CHANGE VENUE