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Robert W. Thompson, Esq. (SBN: 250038)
Kristen A. Vierhaus, Esq. (SBN: 322778)
THOMPSON LAW OFFICES, P.C.
700 Airport Boulevard, Suite 160
Burlingame, CA 94010
Telephone: (650) 513-6111
Facsimile: (650) 513-6071
Brian D. Kent (Admitted Pro Hac Vice)
LAFFEY, BUCCI & KENT, LLP
Electronically
1435 Walnut Street, Suite 700
Philadelphia, PA 19102 by Superior Court of California, County of San Mateo
Telephone: (215) 399-9255 ON 12/9/2020
Facsimile: (215) 241-8700 By. /s/ Una Finau
Deputy Clerk
10 *Additional attorneys listed in Attachment.*
11 Attorneys for Plaintiffs
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SAN MATEO, UNLIMITED CIVIL JURISDICTION
14 JANE DOES, et al. Case Nos.19CIV04095C (and all related cases
15 sub-cases, | 8CIV03706A,
Plaintiffs, 19CIV00392A,19CIV00392B,
16 19CIV00392C, 19CIV00392D,
vs. 19CIV00392E, 19CIV00392G,
17
19CIV00392J,19CIV05035A, 19CIV05035D,
MASSAGE ENVY FRANCHISING, LLC; et al.; 19CIV05035E, 19CIV05035F, 19CIV0535H,
18
19CIV04095A, 19CIV04095B) [Assigned for
19 Defendants. all purposes to Honorable Marie S. Weiner,
Department 2]
20
21 PLAINTIFFS’ OMNIBUS
OPPOSITION TO DEFENDANTS’
22 MOTIONS TO TRANSFER VENUE
23
Date: December 18, 2020
24 Time: 2:00 p.m.
Dept.: 2
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
TABLE OF CONTENTS
L. INTRODUCTION vessssessssevesssseressenessenesssssneenenesesssnesnenesesssnesnenenessssesesnesesusseseesenesessegeeneneaeeneneenee I
I. FACTUAL SUMMARY.
IH, LEGAL ARGUMENT.
A The Case Should Not Be Transferred Because Venue in San Mateo County is Proper
3
B Defendants Are Unable to Show That Third-Party Witnesses Will Be Inconvenienced
5
10
Cc The Ends of Justice Are Not Further Promoted by a Transfer
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IV. DEFENDANT SPECIFIC FACTUAL ARGUMENTS...
12
13 A Case Number: 18CIV03706A.
14 1 Defendants 10 North, Inc.’ and Redondo Clinic Development, Inc.’s Motions to Transfer
15 Venue 8
16 ii. Defendants Massage Envy Franchising, Inc., Ravello Ventures, Erik Rice, Mary Guidry,
17 JDSME, and Leocadia Salas’ Joinder to Defendants 10 North, Inc. and Redondo Clinic
18 Development, Inc.’s Motions to Transfer Venue.
19 B Case Number 19CIV00392A
20 1 Defendants ACKC, Inc., Marina Clinic Development, Inc. and 5077 Lankershim Health
21 Associates’ Motion to Transfer Venue
22 ii. Defendants WMC Clinic Development, Inc. and Marina Clinic Development, Inc.’s
23 Motion to Change Venue 10
24 iil. Defendants RME Clinics, Inc. and KRG Consulting, Inc.’s Motions to Transfer Venue
25 12
26 iv. Defendants MEF and 10 North, Inc.’s Joinder to Defendants’ WMC Clinic
27 Development, Inc., Marina Clinic Development, Inc., RME Clinic Development, Inc., KRG
28
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
Consulting, Inc., ACKC, Inc., Marina Clinic Development, Inc. and 5077 Lankershim Health
Associates’ Motions to Transfer Venue. 13
Cc Case Number 19CIV00392B 13
1 Defendants Cota, Inc., ME East Village, Inc. and New Genovation, LLC’s Motion to
Transfer Venue. 13
ii. Defendant Eastlake Village ME, LLC’s Motion to Sever Claims and Transfer Venue to
San Diego County 13
iii. Defendant MEF’s Joinder to Defendants Cota, Inc., ME East Village, Inc. and New
Genovation, LLC and Eastlake Village ME, LLC’s Motions to Transfer Venue 13
10
D. Case Number 19CIV00392C 14
11
1 Defendant Eight Hands Four Hearts, Inc.’s Motion To Change Venue. 14
12
ii. Defendant Coastal Massage Chanel Islands Harbor, LLC’s Motion to Transfer Venue....15
13
iil. Defendant Coastal Massage Ventura’s Motion to Transfer Venue 17
14
iv. Defendant MEF’s Joinder to Defendants Eight Hands Four Hearts, inc., Coastal
15
Massage Chanel Islands Harbor, LLC, and Coastal Massage Ventura’s Motions to Transfer Venue
16
18
17
18 E Case Number 19CIV00392D 18
19 1 Defendant Resfeber Group, LLC and Dontot Enterprisees, Inc.’s Motions to Transfer
20 Venue 18
21 ii. Defendant MEF’s Joinder to Defendants Resfeber Group, LLC and Dontot Enterprises,
22 Inc.’s Motions to Transfer Venue 20
23 Case Number 19CIV00392F 20
24 Defendant Galicia Enterprises, Inc.’s Motion to Transfer Venue 20
25 i Defendant MEF’s Joinder to Defendants Galicia Enterprises, Inc.’s Motion to Transfer
26 Venue 21
27
Case Number 19CIV00392G 21
28
Defendant CFR Enterprises, Inc.’s Motion to Transfer Venue 21
iii
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
ii. Defendant OC Spa Group, Inc.’s Motion to Transfer Venue 22
iil. Defendant MEF’s Joinder to Defendants CFT Enterprises, Inc. and OC Spa Group,
Inc.’s Motions to Transfer Venue 23
H. Case Number 19CIV00392J 23
1 Defendant Uber Clean, Inc.’s Motion to Transfer Venue 23
ii. Defendant MEF’s Joinder to Defendants Uber Clean, Inc.’s Motion to Transfer Venue ..24
I. Case Number 19CIV05035A. 24
1 Defendant Bold Investments, LLC’s Motion to Change Venue 24
ii. Defendant KRG Consulting, Inc.’s Motion to Transfer Venue 26
10
iil. Defendant MEF’s Joinder to Defendants Bold Investments, LLC and KRG Consulting,
11
Inc.’s Motions to Transfer Venue. 27
12
13 Case Number 19CIV05035D 27
14 Defendant OC Health Group, Inc.’s Motion to Transfer Venue 27
15 i Defendant MEF’s Joinder to Defendant OC Health Group, Inc.’s Motion to Transfer
16 Venue 27
17 Case Number 19CIV05035E 28
18 Defendant Ascension Ventures, Inc.’s Motion to Transfer Venue 28
19 i Defendant MEF’s Joinder to Defendant Ascension Ventures, Inc.’s Motion to Transfer
20 Venue 29
21
Case Number 19CIV05035F 29
22
Defendant Shrinathji’s Motion to Transfer Venue 29
23
i Defendant MEF’s Joinder to Defendant Shrinathji’s Motion to Transfer Venue 30
24
Case Number 19CIV05035H 30
25
Defendant Hau’ Oli ‘Ohana Oi LLC’S (“Hau”) Motion to Transfer Venue 30
26
i Defendant MEF’s Joinder to Defendant Hau’s Motion to Transfer Venue... 31
27
28 Case Number 19CIV04095A 31
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
Defendant New Genovation, LLC’s Motion to Transfer Venue 31
i Defendant MEF’s Joinder to Defendant New Genovation, LLC’s Motion to Transfer
Venue 33
Case Number 19CIV04095B 33
Defendant ME Cotati Inc.’s Renewed Motion to Transfer Venue 33
i Defendant MEF’s Joinder to Defendant ME Cotati, Inc.’s Motion to Transfer Venue 33
P. Case Number 19CIV04095: 33
i Defendant Desert Ventures South, LLC’s Motion to Transfer Venue 33
10 ii. Defendant MEF’s Joinder to Defendant Desert Ventures South, LLC’s Motion to Transfer
11 Venue 34
12 V. CONCLUSION 34
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
TABLE OF AUTHORITIES
Cases
Anaya v. Superior Court (1984) 160 Cal.App.3d 228
Blossom v. Waller (1916) 30 Cal.App.439
Brennan v. Superior Court (1994) 30 Cal.App.4" 454
Dennis v. Overholtzer (1956) 143 Cal.App.2d 607
Dick v. La Madrid (1947) 82 Cal.App.2d 450
Flanagan v. Flanagan (1959) 175 Cal.App.2d 641 6,7
Fontaine v. Sup. Ct. (2009) 175 Cal.App.4th 830 5,8, 10, 27
10
Hoag v. Superior Court of Los Angeles County (1962) 207 Cal.App.2d 611 3,4
11
Kraft v. Smith (1944) 24 Cal.2d 124
12
Monogram Co. ofCalif: V. Kingsley (1951) 38 Cal.2d 28
13
Pearson v. Superior Court, City and County of San Francisco (1962) 199 Cal.App.2d 69
14
Tutor-Saliba-Perini Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736..
15
Statutes
16
379(a)
17
379(b
18
C.C.P section 395(a 5,8, 9, 12, 13, 14, 15, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34
19
C.CP. §§ 378(b)
20
California Code of Civil Procedure §395 1,3
21
California Code of Civil Procedure §396b
22
Code of Civil Procedure sections 378(a)
23
24
25
26
27
28
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
I INTRODUCTION
Instead of filing multiple repetitive oppositions to the Motions to Transfer Venue filed by Defendants
in the cases of Jane Doe, et al. v. Massage Envy Franchising, Inc., et al., San Mateo Case Nos. 18CIV03706A,
19CIV00392A, 19CIV00392B, 19CIV00392C, 19CIV00392D, 19CIV00392F, 19CIV00392G,
19CIV00392J, 19CIV05035A, 19CIV05035D, 19CIV05035E, 19CIV0S5035F, 19CIV05035H,
19CIV04095A, 19CIV04095B, 19CIV04095C, Plaintiffs submit this single omnibus opposition to all!
Motions to Transfer currently pending before the Court.
San Mateo County Superior Court is the proper court for this action, and Defendants have not, and
cannot, prove otherwise. The law is clear that the superior court in the county where any of the defendants
10 reside, have their principal place of business or does business at the commencement of the action is a proper
11 court. The Court previously denied all of Defendants’ Motions to Sever and/or Transfer. Though the Court
12 did order Plaintiffs file Amended Complaints under new “sub-case” numbers, the Court did not sever or
13 transfer the actions. Therefore, in each case, at least one properly joined Defendant resides in San Mateo
14 County. A common sense understanding of the prefix “sub” implies such is connected to a “lead” or “main”
15 case. The lead cases in all of these matters include at least one Defendant whose principal place of business
16 is in San Mateo County (In 18CIV03706, 19CIV05035, and 19CIV04095: ME Time, Inc. In 19CIV00392:
17 ME Time, Inc. and SF Peninsula GME, LLC. In 19CIV00392D: Dontot Enterprises, Inc.). California law is
18 clear: in an action against several properly joined defendants residing in different counties, the plaintiff may
19 pick whichever county she prefers, and the defendants have no right to compel transfer to their residence.
20 Yet this is exactly what Defendant is attempting to do.
21 Defendants’ Motions attempt to convince the Court that it “shall” transfer venue pursuant to
22 California Code of Civil Procedure §396b. However, this action was commenced in the proper venue
23 pursuant to California Code of Civil Procedure §395, whereby “the county where the defendants, or some of
24 them reside at the commencement of the action, is a proper court for the trial of the action.” [Emphasis
25
26
27
' Plaintiffs submit a separate opposition to Defendant Eastlake Village ME, LLC’s Motion to Sever and Transfer Venue
28 in the 19CIV00392B case, as Defendant combined their refiled Motion to Sever with its Motion to Transfer Venue. This is
despite the fact that Defendant’s Motion to Sever was already denied by the Court in September 2020, as detailed in CMO #15.
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
added]. ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc.’s principal places of business
are in San Mateo County. Declaration of Kristen A. Vierhaus (“Vierhaus Decl.”) {ff 2-5.
Additionally, Defendants have failed to prepare and file affidavits detailing the inconveniences of
third-party witnesses or how transferring venue would promote the ends of justice. Instead, Defendants only
provided the Court with scant, unsubstantiated statements to support their Motions. Such are not adequate to
support a Motion to Transfer Venue when Plaintiffs’ chosen venue is proper.
Because all Defendants are properly joined and because Defendants ME Time, Inc., SF Peninsula
GME, LLC, and Dontot Enterprises, Inc.’s principal places of business are in San Mateo County, this is the
proper venue for this action. Additionally, Defendants have utterly failed to show that specific third-party
10 witnesses would be inconvenienced and that a transfer would promote the ends of justice. Defendants have
11 not met their evidentiary burden so as to transfer the cases to their counties of residence. Accordingly,
12 Plaintiffs respectfully request that this Court deny Defendants’ Motions to Transfer Venue.
13 IL. FACTUAL SUMMARY
14 For the sake of brevity, Plaintiff will only detail the relevant factual summary starting from
15 Defendants’ last Motions to Transfer Venue. On July 31, 2020, August 6, 2020, and August 20, 2020,
16 hearings were held on various motions to dismiss, motions to sever, transfer venue, compel arbitration and/or
17 demurrers filed by numerous Defendants. On September 15, 2020, the Court issued Case Management Order
18 #15 (“CMO #15”) detailing the Court’s decision on all the above motions (other than those to compel
19 arbitration). Vierhaus Decl. { 6.
20 Paragraphs 2 and 3 of the Court’s CMO #15 read in part: “The motion(s) to sever and dismiss the
21 claims of Jane Doe #11 in 19CIV00392 is GRANTED, and her claims are DISMISSED WITHOUT
22 PREJUDICE. ..Otherwise, all motions to dismiss (other than as an alternative to a motion to compel
23 arbitration) are DENIED. All motions to transfer venue are DENIED. In each of the cases 18C1V03706,
24 19CIV00392, 19CIV04095 and 19CIV05035, there is at least one Plaintiff in San Mateo County and at
25 least one Defendant in San Mateo County.” (Emphasis added). Vierhaus Decl. § 6. After Defendants
26 claimed CMO #15 was ambiguous, Plaintiffs’ counsel emailed the Court requesting clarity, to which the
27 Court stated CMO #15 was unambiguous and further clarified that all motions to transfer were denied.
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
Vierhaus Decl. 7. Ignoring the Court, numerous Defendants re-filed almost identical Motions without any
additional factual or evidentiary support in November of 2020.
Ti. LEGAL ARGUMENT
A. The Case Should Not Be Transferred Because Venue in San Mateo County is Proper
“Tf the action is for injury to person or personal property..., the superior court in...the county where
the defendants, or some of them resident at the commencement of the action, is a proper court for the trial of
the action.” California Code of Civil Procedure §395. As Defendant ME Time, Inc., Defendant SF Peninsula
GME, LLC, and Defendant Dontot Enterprises, Inc. all reside in San Mateo County, San Mateo County is
the proper venue. Vierhaus Decl. $j 2-5. “Where venue is proper in the county in which one of the defendants
10 resides, as to one cause of action, venue is proper in that county as to all properly joined causes of action and
11 defendants. Plaintiff's selection of venue may not be defeated even if all the defendants concur in a motion
12 to change venue to a county in which another defendant resides.” Tutor-Saliba-Perini Joint Venture v.
13 Superior Court (1991) 233 Cal.App.3d 736, 742. “‘And it is the well-settled rule that “[a] defendant is not
14 entitled to have a suit removed to the county of his residence unless it appears that none of the other
15 defendants who are proper parties is a resident ofthe county in which the action [is] filed.”’” Hoag v. Superior
16 Court of Los Angeles County (1962) 207 Cal.App.2d 611, 616.
17 Indeed, “where a defendant is properly named in one cause of action and he is a resident of the county
18 where the action is brought, the venue for the entire action is in that county.” Dennis v. Overholtzer (1956)
19 143 Cal.App.2d 607. Defendant ME TIME, Inc., SF Peninsula GME, LLC, Dontot Enterprises, Inc. are the
20 locations where nine (9) ofthe Plaintiffs were assaulted (Jane Doe #3 (D.B.), Jane Does #6 (A.F.), Jane Doe
21 #16 (JS.), Jane Doe #31 (J.M.), Jane Doe #34 (L.P.), Jane Doe #6 (B.R.) #39 (G.M.), #2 (Z.B.), and #32
22 (R.M.)). ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are named in numerous
23 causes of action by nine different Plaintiffs, are properly joined Defendants, and are residents of San Mateo
24 County. Vierhaus Decl. {| 2-5. Thus, these actions may be brought and tried in this Court. Furthermore, the
25 Court already ordered, “All motions to transfer venue are DENIED. In each of the cases_18CIV03706.
26 19CIV00392, 19CIV04095 and 19CIV05035, there is at least one Plaintiff in San Mateo County and at least
27 one Defendant in San Mateo County.” Vierhaus Decl. { 6.
28
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PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
“[IJn an action against several properly-joined defendants, residing in different counties, plaintiff
may pick whichever of the counties he or she prefers, and the other defendants have no right to compel
transfer to their residence.” Monogram Co. of Calif: V. Kingsley (1951) 38 Cal.2d 28, 34. The “joinder
provisions must be correlated with the venue provisions the former prescribing what causes and parties a
single action may include and the latter prescribing where such action as an entirety may be tried.” Jd. at 31-
32. The Court has already denied all of Defendants’ Motions to Dismiss/Demurrers on the ground of
misjoinder of Defendants. Specifically, the Court ordered, “All Demurrers on the grounds of misjoinder of
Defendants are OVERRULED.” Vierhaus Decl. { 6. Thus, all Defendants named in the lead cases and sub-
cases are still joined and connected. In all of the amended sub-case complaints, Plaintiffs specifically plead
10 “Pursuant to the Court’s Case Management Order #15, Plaintiffs submit their...Amended Complaint under
11 the sub-case number..., which is related and connected to the lead case...The lead case includes numerous
12 Plaintiffs and Defendants domiciled in San Mateo County, of which were properly joined.”
13 Pursuant to Code of Civil Procedure sections 378(a) and 379(a), permissive joinder allows all persons
14 to be joined in one action as plaintiffs, if they assert, or as defendants, if there is asserted against them: “(1)
15 ... any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction,
16 occurrence, or series of transactions or occurrences and if any question of law or fact common to all these
17 persons will arise in the action; or (2) ... a claim, right, or interest adverse to the defendant in the property
18 or controversy which is the subject of the action.”
19 The objective of permissive joinder is convenience: saving the effort and expense of separate actions
20 where the pleadings and evidence cover much of the same ground and can be combined into one action.
21 Kraft v. Smith (1944) 24 Cal.2d 124, 129. There must be some factual nexus connecting the plaintiffs’ claims
22 against the defendants. Hoag v. Superior Court of Los Angeles County (1962) 207 Cal.App.2d 611, 618.
23 While permissive joinder contemplates an action single in form, each case retains its distinctive identity as
24 though pleaded in an independent action. Brennan v. Superior Court (1994) 30 Cal.App.4" 454. It is not
25 necessary for each plaintiff or defendant to be interested in all causes of action, all relief prayed for, or the
26 entire complaint, rather judgment is given according to each plaintiff's respective right to relief. Id.; C.C.P.
27 §§ 378(b), 379(b). The permissive joinder statute is liberally construed to permit joinder whenever possible
28 in furtherance of its purpose. Anaya v. Superior Court (1984) 160 Cal.App.3d 228.
4
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
Defendants are properly joined in this because Plaintiffs’ injuries arose from the same series of
transactions, there are common questions of law and fact, and joinder does not prejudice Defendants.
Defendants are properly joined because Defendants engaged in a common scheme to defraud Plaintiffs by
using the same misrepresentations about the safety of their massage therapists, zero tolerance policy, and
history of sexual assaults at Massage Envy locations. These misrepresentations led to a series of transactions
similar in kind and manner, where Plaintiffs were encouraged to be alone, vulnerable, and exposed to the
known sexual misconduct of Defendants’ massage therapists. Defendants not only engaged in this common
scheme with each other, ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc., but also with
MEF who perpetuated and required the franchisees to adhere to this scheme.
10 As such, Plaintiffs filed these actions in a county where some of the Defendants and Plaintiffs reside
11 pursuant to C.C.P section 395(a). Vierhaus Decl. {§ 2-5. Thus, Plaintiffs’ chosen venue is proper. As required
12 by Fontaine v. Sup. Ct. (2009) 175 Cal.App.4th 830, 836, Defendants have failed “to demonstrate that the
13 plaintiff's venue selection is not proper under any of the statutory grounds,” and so, Defendants Motions
14 should be denied.
15 B. Defendants Are Unable to Show That Third-Party Witnesses Will Be Inconvenienced
16 Defendants further move the Court to transfer venue based upon unsupported assertions that
17 “potential third-party witnesses” will be inconvenienced if the case remains in San Mateo County. First, the
18 cases against all Defendants are in their infancy. “A motion for change of venue on the ground of convenience
19 of witnesses will not be entertained when the defendant has not filed an answer for the obvious reason that
20 until the issues are joined the court cannot determine what testimony will be material.” Pearson v. Superior
21 Court, City and County of San Francisco (1962) 199 Cal.App.2d 69, 75. Defendants have not filed an Answer
22 to Plaintiffs amended complaints. Instead, they filed Motions to Transfer Venue as their responsive pleading.
23 Thus, the Court may not consider these Motions on the grounds of convenience ofwitnesses.
24 Additionally, “[a] motion for a change of venue, grounded upon the convenience of witnesses, rests
25 in the discretion of the trial court, the exercise of which will not be disturbed in the absence of a showing of
26 its abuse; and it is settled that a mere preponderance in the number of the witnesses claimed to be necessary
27 to the moving party does not entirely control the exercise of the court's discretion. Regard may be given to
28 the character of the proposed testimony; and the court may therefore determine for itself from the showing
5
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
made whether or not there be any necessity for the testimony of any or all of the desired witnesses.”
(Emphasis added.) Blossom v. Waller (1916) 30 Cal.App.439, 441. To prevail on a Motion to Transfer venue
based on convenience of witnesses, Defense counsel is required to support the Motion with an affidavit that
“must set forth three elements — ‘the names of the witnesses the nature of testimony expected form each, and
the reasons why the attendance of each would be inconvenient.” Flanagan v. Flanagan (1959) 175
Cal.App.2d 641, 644. “‘Before the convenience of witnesses may be considered as a grounds for order
granting a change of venue it must _be shown that their proposed testimony is admissible, relevant and
material to some issue in the case as shown by the record before the court.”” Jd.
Numerous Defendants failed to even file a supporting affidavit or declaration with the required
10 information regarding specific, inconvenienced witnesses and those Defendants that did file an affidavit still
11 failed to provide the specific information required by Flanagan v. Flanagan (1959) 175 Cal.App.2d 641,
12 644. This alone is a sufficient basis to deny these motions.
13 And as explained in detail below, all Defendants have failed to provide any true and accurate
14 information whatsoever in their Motions as to how many third-party witnesses will be brought to trial, which
15 of these third-party witnesses will be so inconvenienced as to require venue transfer, why such witnesses will
16 be inconvenienced, and what proposed testimony such inconvenienced third-party witnesses will be
17 providing. After citing a vast amount of case law that requires Defendants actually provide the Court with
18 evidence that identifies the third-party witnesses at issue and adequately show how each witness would be
19 inconvenienced, Defendants simply state that transferring the case will inconvenience “all” third-party
20 witnesses and that Plaintiff will not be prejudiced, both without any factual or evidentiary justification. Such
21 are unsubstantiated statements. Defendants have provided no factual basis to support a Motion to Transfer
22 Venue on the grounds of convenience and promotion of the ends of justice. Defendants, baselessly and
23 without any corroboration, claim that all third-party witnesses that may be called to trial in this matter live
24 in each Defendant’s resident county and/or many miles away from San Mateo County.
25 Speculation and conjecture are insufficient to support a Motion to Transfer Venue based on
26 convenience of witnesses, especially when Plaintiffs’ chosen venue is in fact proper. This case is in its
27 infancy. Plaintiffs and Defendants have only recently began responding to written discovery, and thus neither
28 have had an opportunity to even identify the potential third-party witnesses all parties intend to bring to trial.
6
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
Therefore, Defendants have no grounds to pursue a Motion to Transfer Venue on the basis of convenience
of witnesses at this time.
It should also be noted that this action is being litigated in the middle of a global pandemic. As a
result of COVID-19, residents of State of California have been under some version of a stay-at-home/shelter-
in-place order since March 2020. Given the rapid increase in positive COVID-19 cases in the State of
California in the recent months, it is clear that no County in the State will be completely reopened soon.
However, one positive stemming from the pandemic is the ease and availability of conducting remote
depositions. In the event a third-party witness does live in a different county, a remote deposition is not only
possible, but will be required for the foreseeable future. Therefore, any potential witnesses will not be
10 inconvenienced or require expensive travel/lodging.
11 As Defendants have failed to show with specificity how any witness would be inconvenienced to the
12 extent that such requires the Court to transfer venue, Defendants’ Motion should be denied.
13 C. The Ends of Justice Are Not Further Promoted by a Transfer
14 There is ee no doubt that before a [Motion to Transfer Venue] can be granted there must be some
15 showing of both convenience of witnesses and that the ends of justice will be served by the change.’ The
16 affidavit supporting the motion must aver the facts from which such a conclusion may be reached: ‘It is also
17 apparent that, aside from the bare averment that the ends of justice would served by the change, there was
18 no specific averment as to the facts that are relied upon to support such averment. a Flanagan v. Flanagan
19 at 421-422.
20 First, the affidavits, if any, that Defense Counsel submitted along with their Motions fail to meet the
21 standard required by Flanagan v. Flanagan. As detailed further below, Defense Counsel fails to provide any
22 information whatsoever about inconvenienced witnesses or what ends of justice would be promoted by a
23 transfer of venue. Additionally, Defendants’ Motions fail to provide any specific facts as to how the ends of
24 justice would be promoted if venue is transferred to the desired counties. Defendants only make
25 uncorroborated conclusions that Defendants will expend substantial resources if required to remain in San
26 Mateo County. This case was filed because all Plaintiffs involved were sexually assaulted at a Massage Envy
27 franchise by Defendants’ massage therapists as a direct result of Defendants’ collective, negligent, deceitful,
28 and fraudulent business practices. “While inferences may be drawn from facts presented, there must be some
7
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
evidentiary showing in or to justify the drawing of such inferences.” Dick v. La Madrid (1947) 82 Cal.App.2d
450, 453. Defendants have presented absolutely no facts. Without any actual facts or evidence to support its
claim that the ends of justice would be promoted in another County, as opposed to Plaintiffs’ chosen venue,
San Mateo County, Defendants’ Motion should be denied.
Iv. DEFENDANT SPECIFIC FACTUAL ARGUMENTS
Plaintiff hereby addresses each of Defendants specific factual arguments below.
A. Case Number: 18CIV03706A
i. Defendants 10 North, Inc.’ and Redondo Clinic Development, Inc.’s Motions
to Transfer Venue
Defendants 10 North, Inc. and Redondo Clinic Development, Inc.’s Motions to Transfer Venue and
10 supporting paperwork are nearly identical. Plaintiffs will thus respond to both so as to prevent repetitive
11 arguments. Defendants argue that Los Angeles Superior Court is the proper court for this action. This is
12 incorrect. As outlined above, ME Time, Inc. is a Defendant in the lead case (18CIV03706). ME Time, Inc.’s
13 principal place of business is in San Mateo County. As Plaintiffs filed this action in a county where some of
14 the Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’ chosen venue is proper. As
15 required by Fontaine v. Sup. Ct. (Cashcall, Inc.) ((2009) 175 Cal.App.4th 830, 836), Defendant has failed
16 “to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.”
17 Defendants failed to provide the required facts regarding the convenience of witness or how transfers
18 will further the interest of justice. Instead, Counsel’s declarations baselessly state that “the employees of this
19 franchise all reside in or near Los Angeles County,” without identifying which employees, where they live,
20 and whether or not they are going to be witnesses at trial. Defense Counsel also generally declares without
21 personal knowledge that “Plaintiff's friends, family, employer and treating providers also reside in or near
22 Los Angeles County.” Defense Counsel again fails to identify which friend, family member, employer or
23 treating provider of Plaintiff they intend to have as a witness at trial and fails to explain how that person
24 would be inconvenienced. Defense Counsel then exaggerates the distance between Los Angeles County
25 Superior Court and San Mateo County Superior Court to make a baseless declaration that “the witnesses”
26 (without identifying them) will be required to drive a long distance, incur expenses, and miss work. Lastly,
27 Defense Counsel declares that Defendants “will need to expend substantial resources if it is required to
28 transport the witnesses and evidence to San Mateo County.” This statement is again unsubstantiated by facts
8
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
and/or evidence. Thus, Defendants’ declarations fail to set forth (1) the names of the allegedly
inconvenienced witnesses, (2) the nature of testimony expected from the witnesses, nor (3) the reasons why
the attendance of each would be inconvenient, as is required.
Defendants have not met their evidentiary burden to file a Motion to Transfer on the grounds of
convenience of witnesses, nor have Defendants shown that San Mateo County is the wrong Court. Therefore,
Defendants’ Motions must be denied.
ii. Defendants Massage Envy Franchising, Inc., Ravello Ventures, Erik Rice,
Mary Guidry, JDSME, and Leocadia Salas’ Joinder to Defendants 10 North,
Inc. and Redondo Clinic Development, Inc.’s Motions to Transfer Venue
10 For the same reasons set forth above, Defendants Massage Envy Franchising, Inc. (“MEF”) Ravello
11 Ventures, Erik Rice, Mary Guidry, JDSME, and Leocadia Salas’ Joinder to Defendant 10 North, Inc. and
12 Redondo Clinic Development, Inc.’s Motions to Transfer Venue should be denied. Defendant MEF argues
13 that the cases against it were severed. This is not accurate. The Court affirmed that all Defendants in these
14 actions were properly joined. Plaintiff filed this action in a county where some of the Defendants and
15 Plaintiffs reside pursuant to C.C.P section 395(a). Thus, Plaintiffs’ chosen venue is proper.
16
B. Case Number 19CIV00392A
17
i. Defendants ACKC, Inc., Marina Clinic Development, Inc. and 5077
18 Lankershim Health Associates’ Motion to Transfer Venue
19 Defendants ACKC, Inc., Marina Clinic Development, Inc. and 5077 Lankershim Health Associates
20 argue that Los Angeles Superior Court is the proper court for this action. This is incorrect. As outlined above,
21 ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are Defendants in the lead case and
22 sub-case (19CIV00392 and 19CIV00392D). ME Time, Inc., SF Peninsula GME, LLC, and Dontot
23 Enterprises, Inc.’s principal places of business are in San Mateo County. The Court denied Defendants’
24 previous motions on the grounds of misjoinder. The sub-cases are still joined to the lead case, which include
25 Plaintiffs and Defendants that reside in San Mateo County. As Plaintiffs filed this action in a county where
26 some of the Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’ chosen venue is
27 proper. As required by Fontaine v. Sup. Ct. (Cashcall, Inc.) ((2009) 175 Cal.App.4th 830, 836), Defendant
28 has failed “to demonstrate that the plaintiff's venue selection is not proper under any of the statutory
9
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
grounds.” Defendants have not met their burden of proving the action was not commenced in a proper Court.
Thus, their Motion should be denied.
ii. Defendants WMC Clinic Development, Inc. and Marina Clinic Development,
Inc.’s Motion to Change Venue
Defendants WMC Clinic Development, Inc. and Marina Clinic Development, Inc. argue that Los
Angeles Superior Court is the proper court for this action. This is incorrect. As outlined above, ME Time,
Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are Defendants in the lead case and sub-case
(19CIV00392 and 19CIV00392D). ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc.’s
principal places of business are in San Mateo County. The Court denied Defendants’ previous motions on
the grounds of misjoinder. The sub-cases are still joined to the lead case, which include Plaintiffs and
10 Defendants that reside in San Mateo County. As Plaintiffs filed this action in a county where some of the
11 Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’ chosen venue is proper. As
12 required by Fontaine v. Sup. Ct. (Cashcall, Inc.) ((2009) 175 Cal.App.4th 830, 836), Defendant has failed
13 “to demonstrate that the plaintiffs venue selection is not proper under any of the statutory grounds.”
14 Defendants failed to provide the required facts regarding the convenience of witness or how transfers
15 will further the interest of justice. Instead, Defense Counsel’s declaration only cites to a “true and correct
16 copy of Plaintiff's Third Amended Complaint” — nothing further. The Court already questioned Defense
17 Counsel’s failure to submit a proper and thorough declaration to supports its Motions to Transfer Venue in
18 July and August. Yet, Defense Counsel submitted the same insufficient declaration again.
19 Not only did Defense Counsel fail to file a supporting affidavit or declaration with the required
20 information regarding specific, inconvenienced witnesses, Defendant has failed to provide any information
21 whatsoever in its Motion as to how many third-party witnesses will be needed, which of these third-party
22 witnesses will be so inconvenienced as to require venue transfer, why such witnesses will be inconvenienced,
23 and what proposed testimony such inconvenienced third-party witnesses will be providing. After citing a
24 vast amount of case law that requires Defendant actually identify the third-party witnesses at issue and
25 adequately show how each witness would be inconvenienced, Defendant only writes: “As it pertains to this
26 case, not only will Plaintiff not suffer any material prejudice by a transfer, in fact it will be more convenient
27 for her, the ends of justice and convenience of any actual and potential relevant third-party witnesses will
28 undoubted by be burdened by having this case tried in San Mateo County.” Defendants’ Motion to Transfer
10
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
Venue, 9:1-4. “[A]ny actual and potential material third-party witnesses who are from Los Angeles County
or live hundreds of miles closer than San Mateo County, would be highly inconvenienced by being required
to attend trial in San Mateo County for this matter.” Defendants’ Motion to Transfer Venue, 9:7-10.
These are unsubstantiated statements. Defendants have provided no factual basis to support a Motion
to Transfer Venue on the grounds of convenience and promotion of the ends of justice. Defendants, baselessly
and without any corroboration, claim that all third-party witnesses that may be called to trial in this matter
live in Los Angeles County or “hundreds of miles” away from San Mateo County. Again, speculation and
conjecture are insufficient to support a Motion to Transfer Venue based on convenience of witnesses,
especially when Plaintiff's chosen venue is in fact proper. Additionally, Defendants have not shown that the
10 ends of justice are further promoted by a transfer to Los Angeles County. The affidavit Defense Counsel
11 submitted along with this Motion only declares an attachment as a true and correct copy of Plaintiffs’
12 amended complaint. Defense counsel failed to provide any information whatsoever about inconvenienced
13 witnesses or what ends of justice would be promoted by a transfer of venue.
14 Furthermore, Defendants’ Motion fails to provide any specific facts as to how the ends of justice
15 would be promoted if venue is transferred to Los Angeles County. Defendants only makes another
16 uncorroborated conclusion that transfer would give “a jury in Los Angeles County the helpful opportunity to
17 visit the location of the incident and better understand any testimony given at trial in determining the facts
18 of the incident.” Simply put, this argument is nonsensical, and certainly inadequate support for a Motion to
19 Transfer Venue based on the promotion of the ends of justice. This case was filed because all Plaintiffs
20 involved were sexually assaulted at a Massage Envy franchise by Defendants’ massage therapists as a direct
21 result of Defendants’ collective, negligent, deceitful, and fraudulent business practices. Yet, Defendants fail
22 to explain in what way the interests of justice are promoted by dragging a jury into a Massage Envy franchise
23 (especially in the age of COVID-19) and in what way such would allow them to “better understand”
24 testimony at trial.
25 Defendants have not met its evidentiary burden to file a Motion to Transfer on the grounds of
26 convenience of witnesses or promotion of the ends of justice, nor have Defendants shown that San Mateo
27 County is the wrong Court. Therefore, Defendants’ Motion must be denied.
28
ll
PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
iii. Defendants RME Clinics, Inc. and KRG Consulting, Inc.’s Motions to
Transfer Venue
Defendants RME Clinics, Inc. and KRG Consulting, Inc.’s Motions to Transfer Venue and supporting
paperwork are nearly identical. Plaintiff will thus respond to both so as to prevent repetitive arguments.
Defendants argue that Los Angeles Superior Court is the proper court for this action. This is incorrect. As
outlined above, ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are Defendants in the
lead case and sub-case (19CIV00392 and 19CIV00392D). ME Time, Inc., SF Peninsula GME, LLC, and
Dontot Enterprises, Inc.’s principal places of business are in San Mateo County. The Court denied
Defendants’ previous motions on the grounds of misjoinder. The sub-cases are still joined to the lead case,
which include Plaintiffs and Defendants that reside in San Mateo County. As Plaintiffs filed this action in a
10 county where some of the Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’
11 chosen venue is proper.
12 Defendants failed to provide the required facts regarding the convenience of witness or how transfers
13 will further the interest of justice. Instead, Counsel’s declarations baselessly state that “the employees of this
14 franchise all reside in or near Los Angeles County,” without identifying which employees, where they live,
15 and whether or not they are going to be witnesses at trial. Defense Counsel also generally declares that “the
16 majority of witnesses and evidence resides in Los Angeles County.” Defense Counsel again fails to identify
17 which witnesses and/or evidence Defendant intends to bring at trial an
Preview
Robert W. Thompson, Esq. (SBN: 250038) Kristen A. Vierhaus, Esq. (SBN: 322778) THOMPSON LAW OFFICES, P.C. 700 Airport Boulevard, Suite 160 Burlingame, CA 94010 Telephone: (650) 513-6111 Facsimile: (650) 513-6071 Brian D. Kent (Admitted Pro Hac Vice) LAFFEY, BUCCI & KENT, LLP Electronically 1435 Walnut Street, Suite 700 Philadelphia, PA 19102 by Superior Court of California, County of San Mateo Telephone: (215) 399-9255 ON 12/9/2020 Facsimile: (215) 241-8700 By. /s/ Una Finau Deputy Clerk 10 *Additional attorneys listed in Attachment.* 11 Attorneys for Plaintiffs 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SAN MATEO, UNLIMITED CIVIL JURISDICTION 14 JANE DOES, et al. Case Nos.19CIV04095C (and all related cases 15 sub-cases, | 8CIV03706A, Plaintiffs, 19CIV00392A,19CIV00392B, 16 19CIV00392C, 19CIV00392D, vs. 19CIV00392E, 19CIV00392G, 17 19CIV00392J,19CIV05035A, 19CIV05035D, MASSAGE ENVY FRANCHISING, LLC; et al.; 19CIV05035E, 19CIV05035F, 19CIV0535H, 18 19CIV04095A, 19CIV04095B) [Assigned for 19 Defendants. all purposes to Honorable Marie S. Weiner, Department 2] 20 21 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ 22 MOTIONS TO TRANSFER VENUE 23 Date: December 18, 2020 24 Time: 2:00 p.m. Dept.: 2 25 26 27 28 i PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE TABLE OF CONTENTS L. INTRODUCTION vessssessssevesssseressenessenesssssneenenesesssnesnenesesssnesnenenessssesesnesesusseseesenesessegeeneneaeeneneenee I I. FACTUAL SUMMARY. IH, LEGAL ARGUMENT. A The Case Should Not Be Transferred Because Venue in San Mateo County is Proper 3 B Defendants Are Unable to Show That Third-Party Witnesses Will Be Inconvenienced 5 10 Cc The Ends of Justice Are Not Further Promoted by a Transfer 11 IV. DEFENDANT SPECIFIC FACTUAL ARGUMENTS... 12 13 A Case Number: 18CIV03706A. 14 1 Defendants 10 North, Inc.’ and Redondo Clinic Development, Inc.’s Motions to Transfer 15 Venue 8 16 ii. Defendants Massage Envy Franchising, Inc., Ravello Ventures, Erik Rice, Mary Guidry, 17 JDSME, and Leocadia Salas’ Joinder to Defendants 10 North, Inc. and Redondo Clinic 18 Development, Inc.’s Motions to Transfer Venue. 19 B Case Number 19CIV00392A 20 1 Defendants ACKC, Inc., Marina Clinic Development, Inc. and 5077 Lankershim Health 21 Associates’ Motion to Transfer Venue 22 ii. Defendants WMC Clinic Development, Inc. and Marina Clinic Development, Inc.’s 23 Motion to Change Venue 10 24 iil. Defendants RME Clinics, Inc. and KRG Consulting, Inc.’s Motions to Transfer Venue 25 12 26 iv. Defendants MEF and 10 North, Inc.’s Joinder to Defendants’ WMC Clinic 27 Development, Inc., Marina Clinic Development, Inc., RME Clinic Development, Inc., KRG 28 ii PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE Consulting, Inc., ACKC, Inc., Marina Clinic Development, Inc. and 5077 Lankershim Health Associates’ Motions to Transfer Venue. 13 Cc Case Number 19CIV00392B 13 1 Defendants Cota, Inc., ME East Village, Inc. and New Genovation, LLC’s Motion to Transfer Venue. 13 ii. Defendant Eastlake Village ME, LLC’s Motion to Sever Claims and Transfer Venue to San Diego County 13 iii. Defendant MEF’s Joinder to Defendants Cota, Inc., ME East Village, Inc. and New Genovation, LLC and Eastlake Village ME, LLC’s Motions to Transfer Venue 13 10 D. Case Number 19CIV00392C 14 11 1 Defendant Eight Hands Four Hearts, Inc.’s Motion To Change Venue. 14 12 ii. Defendant Coastal Massage Chanel Islands Harbor, LLC’s Motion to Transfer Venue....15 13 iil. Defendant Coastal Massage Ventura’s Motion to Transfer Venue 17 14 iv. Defendant MEF’s Joinder to Defendants Eight Hands Four Hearts, inc., Coastal 15 Massage Chanel Islands Harbor, LLC, and Coastal Massage Ventura’s Motions to Transfer Venue 16 18 17 18 E Case Number 19CIV00392D 18 19 1 Defendant Resfeber Group, LLC and Dontot Enterprisees, Inc.’s Motions to Transfer 20 Venue 18 21 ii. Defendant MEF’s Joinder to Defendants Resfeber Group, LLC and Dontot Enterprises, 22 Inc.’s Motions to Transfer Venue 20 23 Case Number 19CIV00392F 20 24 Defendant Galicia Enterprises, Inc.’s Motion to Transfer Venue 20 25 i Defendant MEF’s Joinder to Defendants Galicia Enterprises, Inc.’s Motion to Transfer 26 Venue 21 27 Case Number 19CIV00392G 21 28 Defendant CFR Enterprises, Inc.’s Motion to Transfer Venue 21 iii PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE ii. Defendant OC Spa Group, Inc.’s Motion to Transfer Venue 22 iil. Defendant MEF’s Joinder to Defendants CFT Enterprises, Inc. and OC Spa Group, Inc.’s Motions to Transfer Venue 23 H. Case Number 19CIV00392J 23 1 Defendant Uber Clean, Inc.’s Motion to Transfer Venue 23 ii. Defendant MEF’s Joinder to Defendants Uber Clean, Inc.’s Motion to Transfer Venue ..24 I. Case Number 19CIV05035A. 24 1 Defendant Bold Investments, LLC’s Motion to Change Venue 24 ii. Defendant KRG Consulting, Inc.’s Motion to Transfer Venue 26 10 iil. Defendant MEF’s Joinder to Defendants Bold Investments, LLC and KRG Consulting, 11 Inc.’s Motions to Transfer Venue. 27 12 13 Case Number 19CIV05035D 27 14 Defendant OC Health Group, Inc.’s Motion to Transfer Venue 27 15 i Defendant MEF’s Joinder to Defendant OC Health Group, Inc.’s Motion to Transfer 16 Venue 27 17 Case Number 19CIV05035E 28 18 Defendant Ascension Ventures, Inc.’s Motion to Transfer Venue 28 19 i Defendant MEF’s Joinder to Defendant Ascension Ventures, Inc.’s Motion to Transfer 20 Venue 29 21 Case Number 19CIV05035F 29 22 Defendant Shrinathji’s Motion to Transfer Venue 29 23 i Defendant MEF’s Joinder to Defendant Shrinathji’s Motion to Transfer Venue 30 24 Case Number 19CIV05035H 30 25 Defendant Hau’ Oli ‘Ohana Oi LLC’S (“Hau”) Motion to Transfer Venue 30 26 i Defendant MEF’s Joinder to Defendant Hau’s Motion to Transfer Venue... 31 27 28 Case Number 19CIV04095A 31 iv PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE Defendant New Genovation, LLC’s Motion to Transfer Venue 31 i Defendant MEF’s Joinder to Defendant New Genovation, LLC’s Motion to Transfer Venue 33 Case Number 19CIV04095B 33 Defendant ME Cotati Inc.’s Renewed Motion to Transfer Venue 33 i Defendant MEF’s Joinder to Defendant ME Cotati, Inc.’s Motion to Transfer Venue 33 P. Case Number 19CIV04095: 33 i Defendant Desert Ventures South, LLC’s Motion to Transfer Venue 33 10 ii. Defendant MEF’s Joinder to Defendant Desert Ventures South, LLC’s Motion to Transfer 11 Venue 34 12 V. CONCLUSION 34 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vv PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE TABLE OF AUTHORITIES Cases Anaya v. Superior Court (1984) 160 Cal.App.3d 228 Blossom v. Waller (1916) 30 Cal.App.439 Brennan v. Superior Court (1994) 30 Cal.App.4" 454 Dennis v. Overholtzer (1956) 143 Cal.App.2d 607 Dick v. La Madrid (1947) 82 Cal.App.2d 450 Flanagan v. Flanagan (1959) 175 Cal.App.2d 641 6,7 Fontaine v. Sup. Ct. (2009) 175 Cal.App.4th 830 5,8, 10, 27 10 Hoag v. Superior Court of Los Angeles County (1962) 207 Cal.App.2d 611 3,4 11 Kraft v. Smith (1944) 24 Cal.2d 124 12 Monogram Co. ofCalif: V. Kingsley (1951) 38 Cal.2d 28 13 Pearson v. Superior Court, City and County of San Francisco (1962) 199 Cal.App.2d 69 14 Tutor-Saliba-Perini Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736.. 15 Statutes 16 379(a) 17 379(b 18 C.C.P section 395(a 5,8, 9, 12, 13, 14, 15, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34 19 C.CP. §§ 378(b) 20 California Code of Civil Procedure §395 1,3 21 California Code of Civil Procedure §396b 22 Code of Civil Procedure sections 378(a) 23 24 25 26 27 28 vi PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE I INTRODUCTION Instead of filing multiple repetitive oppositions to the Motions to Transfer Venue filed by Defendants in the cases of Jane Doe, et al. v. Massage Envy Franchising, Inc., et al., San Mateo Case Nos. 18CIV03706A, 19CIV00392A, 19CIV00392B, 19CIV00392C, 19CIV00392D, 19CIV00392F, 19CIV00392G, 19CIV00392J, 19CIV05035A, 19CIV05035D, 19CIV05035E, 19CIV0S5035F, 19CIV05035H, 19CIV04095A, 19CIV04095B, 19CIV04095C, Plaintiffs submit this single omnibus opposition to all! Motions to Transfer currently pending before the Court. San Mateo County Superior Court is the proper court for this action, and Defendants have not, and cannot, prove otherwise. The law is clear that the superior court in the county where any of the defendants 10 reside, have their principal place of business or does business at the commencement of the action is a proper 11 court. The Court previously denied all of Defendants’ Motions to Sever and/or Transfer. Though the Court 12 did order Plaintiffs file Amended Complaints under new “sub-case” numbers, the Court did not sever or 13 transfer the actions. Therefore, in each case, at least one properly joined Defendant resides in San Mateo 14 County. A common sense understanding of the prefix “sub” implies such is connected to a “lead” or “main” 15 case. The lead cases in all of these matters include at least one Defendant whose principal place of business 16 is in San Mateo County (In 18CIV03706, 19CIV05035, and 19CIV04095: ME Time, Inc. In 19CIV00392: 17 ME Time, Inc. and SF Peninsula GME, LLC. In 19CIV00392D: Dontot Enterprises, Inc.). California law is 18 clear: in an action against several properly joined defendants residing in different counties, the plaintiff may 19 pick whichever county she prefers, and the defendants have no right to compel transfer to their residence. 20 Yet this is exactly what Defendant is attempting to do. 21 Defendants’ Motions attempt to convince the Court that it “shall” transfer venue pursuant to 22 California Code of Civil Procedure §396b. However, this action was commenced in the proper venue 23 pursuant to California Code of Civil Procedure §395, whereby “the county where the defendants, or some of 24 them reside at the commencement of the action, is a proper court for the trial of the action.” [Emphasis 25 26 27 ' Plaintiffs submit a separate opposition to Defendant Eastlake Village ME, LLC’s Motion to Sever and Transfer Venue 28 in the 19CIV00392B case, as Defendant combined their refiled Motion to Sever with its Motion to Transfer Venue. This is despite the fact that Defendant’s Motion to Sever was already denied by the Court in September 2020, as detailed in CMO #15. 1 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE added]. ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc.’s principal places of business are in San Mateo County. Declaration of Kristen A. Vierhaus (“Vierhaus Decl.”) {ff 2-5. Additionally, Defendants have failed to prepare and file affidavits detailing the inconveniences of third-party witnesses or how transferring venue would promote the ends of justice. Instead, Defendants only provided the Court with scant, unsubstantiated statements to support their Motions. Such are not adequate to support a Motion to Transfer Venue when Plaintiffs’ chosen venue is proper. Because all Defendants are properly joined and because Defendants ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc.’s principal places of business are in San Mateo County, this is the proper venue for this action. Additionally, Defendants have utterly failed to show that specific third-party 10 witnesses would be inconvenienced and that a transfer would promote the ends of justice. Defendants have 11 not met their evidentiary burden so as to transfer the cases to their counties of residence. Accordingly, 12 Plaintiffs respectfully request that this Court deny Defendants’ Motions to Transfer Venue. 13 IL. FACTUAL SUMMARY 14 For the sake of brevity, Plaintiff will only detail the relevant factual summary starting from 15 Defendants’ last Motions to Transfer Venue. On July 31, 2020, August 6, 2020, and August 20, 2020, 16 hearings were held on various motions to dismiss, motions to sever, transfer venue, compel arbitration and/or 17 demurrers filed by numerous Defendants. On September 15, 2020, the Court issued Case Management Order 18 #15 (“CMO #15”) detailing the Court’s decision on all the above motions (other than those to compel 19 arbitration). Vierhaus Decl. { 6. 20 Paragraphs 2 and 3 of the Court’s CMO #15 read in part: “The motion(s) to sever and dismiss the 21 claims of Jane Doe #11 in 19CIV00392 is GRANTED, and her claims are DISMISSED WITHOUT 22 PREJUDICE. ..Otherwise, all motions to dismiss (other than as an alternative to a motion to compel 23 arbitration) are DENIED. All motions to transfer venue are DENIED. In each of the cases 18C1V03706, 24 19CIV00392, 19CIV04095 and 19CIV05035, there is at least one Plaintiff in San Mateo County and at 25 least one Defendant in San Mateo County.” (Emphasis added). Vierhaus Decl. § 6. After Defendants 26 claimed CMO #15 was ambiguous, Plaintiffs’ counsel emailed the Court requesting clarity, to which the 27 Court stated CMO #15 was unambiguous and further clarified that all motions to transfer were denied. 28 2 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE Vierhaus Decl. 7. Ignoring the Court, numerous Defendants re-filed almost identical Motions without any additional factual or evidentiary support in November of 2020. Ti. LEGAL ARGUMENT A. The Case Should Not Be Transferred Because Venue in San Mateo County is Proper “Tf the action is for injury to person or personal property..., the superior court in...the county where the defendants, or some of them resident at the commencement of the action, is a proper court for the trial of the action.” California Code of Civil Procedure §395. As Defendant ME Time, Inc., Defendant SF Peninsula GME, LLC, and Defendant Dontot Enterprises, Inc. all reside in San Mateo County, San Mateo County is the proper venue. Vierhaus Decl. $j 2-5. “Where venue is proper in the county in which one of the defendants 10 resides, as to one cause of action, venue is proper in that county as to all properly joined causes of action and 11 defendants. Plaintiff's selection of venue may not be defeated even if all the defendants concur in a motion 12 to change venue to a county in which another defendant resides.” Tutor-Saliba-Perini Joint Venture v. 13 Superior Court (1991) 233 Cal.App.3d 736, 742. “‘And it is the well-settled rule that “[a] defendant is not 14 entitled to have a suit removed to the county of his residence unless it appears that none of the other 15 defendants who are proper parties is a resident ofthe county in which the action [is] filed.”’” Hoag v. Superior 16 Court of Los Angeles County (1962) 207 Cal.App.2d 611, 616. 17 Indeed, “where a defendant is properly named in one cause of action and he is a resident of the county 18 where the action is brought, the venue for the entire action is in that county.” Dennis v. Overholtzer (1956) 19 143 Cal.App.2d 607. Defendant ME TIME, Inc., SF Peninsula GME, LLC, Dontot Enterprises, Inc. are the 20 locations where nine (9) ofthe Plaintiffs were assaulted (Jane Doe #3 (D.B.), Jane Does #6 (A.F.), Jane Doe 21 #16 (JS.), Jane Doe #31 (J.M.), Jane Doe #34 (L.P.), Jane Doe #6 (B.R.) #39 (G.M.), #2 (Z.B.), and #32 22 (R.M.)). ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are named in numerous 23 causes of action by nine different Plaintiffs, are properly joined Defendants, and are residents of San Mateo 24 County. Vierhaus Decl. {| 2-5. Thus, these actions may be brought and tried in this Court. Furthermore, the 25 Court already ordered, “All motions to transfer venue are DENIED. In each of the cases_18CIV03706. 26 19CIV00392, 19CIV04095 and 19CIV05035, there is at least one Plaintiff in San Mateo County and at least 27 one Defendant in San Mateo County.” Vierhaus Decl. { 6. 28 3 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE “[IJn an action against several properly-joined defendants, residing in different counties, plaintiff may pick whichever of the counties he or she prefers, and the other defendants have no right to compel transfer to their residence.” Monogram Co. of Calif: V. Kingsley (1951) 38 Cal.2d 28, 34. The “joinder provisions must be correlated with the venue provisions the former prescribing what causes and parties a single action may include and the latter prescribing where such action as an entirety may be tried.” Jd. at 31- 32. The Court has already denied all of Defendants’ Motions to Dismiss/Demurrers on the ground of misjoinder of Defendants. Specifically, the Court ordered, “All Demurrers on the grounds of misjoinder of Defendants are OVERRULED.” Vierhaus Decl. { 6. Thus, all Defendants named in the lead cases and sub- cases are still joined and connected. In all of the amended sub-case complaints, Plaintiffs specifically plead 10 “Pursuant to the Court’s Case Management Order #15, Plaintiffs submit their...Amended Complaint under 11 the sub-case number..., which is related and connected to the lead case...The lead case includes numerous 12 Plaintiffs and Defendants domiciled in San Mateo County, of which were properly joined.” 13 Pursuant to Code of Civil Procedure sections 378(a) and 379(a), permissive joinder allows all persons 14 to be joined in one action as plaintiffs, if they assert, or as defendants, if there is asserted against them: “(1) 15 ... any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, 16 occurrence, or series of transactions or occurrences and if any question of law or fact common to all these 17 persons will arise in the action; or (2) ... a claim, right, or interest adverse to the defendant in the property 18 or controversy which is the subject of the action.” 19 The objective of permissive joinder is convenience: saving the effort and expense of separate actions 20 where the pleadings and evidence cover much of the same ground and can be combined into one action. 21 Kraft v. Smith (1944) 24 Cal.2d 124, 129. There must be some factual nexus connecting the plaintiffs’ claims 22 against the defendants. Hoag v. Superior Court of Los Angeles County (1962) 207 Cal.App.2d 611, 618. 23 While permissive joinder contemplates an action single in form, each case retains its distinctive identity as 24 though pleaded in an independent action. Brennan v. Superior Court (1994) 30 Cal.App.4" 454. It is not 25 necessary for each plaintiff or defendant to be interested in all causes of action, all relief prayed for, or the 26 entire complaint, rather judgment is given according to each plaintiff's respective right to relief. Id.; C.C.P. 27 §§ 378(b), 379(b). The permissive joinder statute is liberally construed to permit joinder whenever possible 28 in furtherance of its purpose. Anaya v. Superior Court (1984) 160 Cal.App.3d 228. 4 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE Defendants are properly joined in this because Plaintiffs’ injuries arose from the same series of transactions, there are common questions of law and fact, and joinder does not prejudice Defendants. Defendants are properly joined because Defendants engaged in a common scheme to defraud Plaintiffs by using the same misrepresentations about the safety of their massage therapists, zero tolerance policy, and history of sexual assaults at Massage Envy locations. These misrepresentations led to a series of transactions similar in kind and manner, where Plaintiffs were encouraged to be alone, vulnerable, and exposed to the known sexual misconduct of Defendants’ massage therapists. Defendants not only engaged in this common scheme with each other, ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc., but also with MEF who perpetuated and required the franchisees to adhere to this scheme. 10 As such, Plaintiffs filed these actions in a county where some of the Defendants and Plaintiffs reside 11 pursuant to C.C.P section 395(a). Vierhaus Decl. {§ 2-5. Thus, Plaintiffs’ chosen venue is proper. As required 12 by Fontaine v. Sup. Ct. (2009) 175 Cal.App.4th 830, 836, Defendants have failed “to demonstrate that the 13 plaintiff's venue selection is not proper under any of the statutory grounds,” and so, Defendants Motions 14 should be denied. 15 B. Defendants Are Unable to Show That Third-Party Witnesses Will Be Inconvenienced 16 Defendants further move the Court to transfer venue based upon unsupported assertions that 17 “potential third-party witnesses” will be inconvenienced if the case remains in San Mateo County. First, the 18 cases against all Defendants are in their infancy. “A motion for change of venue on the ground of convenience 19 of witnesses will not be entertained when the defendant has not filed an answer for the obvious reason that 20 until the issues are joined the court cannot determine what testimony will be material.” Pearson v. Superior 21 Court, City and County of San Francisco (1962) 199 Cal.App.2d 69, 75. Defendants have not filed an Answer 22 to Plaintiffs amended complaints. Instead, they filed Motions to Transfer Venue as their responsive pleading. 23 Thus, the Court may not consider these Motions on the grounds of convenience ofwitnesses. 24 Additionally, “[a] motion for a change of venue, grounded upon the convenience of witnesses, rests 25 in the discretion of the trial court, the exercise of which will not be disturbed in the absence of a showing of 26 its abuse; and it is settled that a mere preponderance in the number of the witnesses claimed to be necessary 27 to the moving party does not entirely control the exercise of the court's discretion. Regard may be given to 28 the character of the proposed testimony; and the court may therefore determine for itself from the showing 5 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE made whether or not there be any necessity for the testimony of any or all of the desired witnesses.” (Emphasis added.) Blossom v. Waller (1916) 30 Cal.App.439, 441. To prevail on a Motion to Transfer venue based on convenience of witnesses, Defense counsel is required to support the Motion with an affidavit that “must set forth three elements — ‘the names of the witnesses the nature of testimony expected form each, and the reasons why the attendance of each would be inconvenient.” Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 644. “‘Before the convenience of witnesses may be considered as a grounds for order granting a change of venue it must _be shown that their proposed testimony is admissible, relevant and material to some issue in the case as shown by the record before the court.”” Jd. Numerous Defendants failed to even file a supporting affidavit or declaration with the required 10 information regarding specific, inconvenienced witnesses and those Defendants that did file an affidavit still 11 failed to provide the specific information required by Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 12 644. This alone is a sufficient basis to deny these motions. 13 And as explained in detail below, all Defendants have failed to provide any true and accurate 14 information whatsoever in their Motions as to how many third-party witnesses will be brought to trial, which 15 of these third-party witnesses will be so inconvenienced as to require venue transfer, why such witnesses will 16 be inconvenienced, and what proposed testimony such inconvenienced third-party witnesses will be 17 providing. After citing a vast amount of case law that requires Defendants actually provide the Court with 18 evidence that identifies the third-party witnesses at issue and adequately show how each witness would be 19 inconvenienced, Defendants simply state that transferring the case will inconvenience “all” third-party 20 witnesses and that Plaintiff will not be prejudiced, both without any factual or evidentiary justification. Such 21 are unsubstantiated statements. Defendants have provided no factual basis to support a Motion to Transfer 22 Venue on the grounds of convenience and promotion of the ends of justice. Defendants, baselessly and 23 without any corroboration, claim that all third-party witnesses that may be called to trial in this matter live 24 in each Defendant’s resident county and/or many miles away from San Mateo County. 25 Speculation and conjecture are insufficient to support a Motion to Transfer Venue based on 26 convenience of witnesses, especially when Plaintiffs’ chosen venue is in fact proper. This case is in its 27 infancy. Plaintiffs and Defendants have only recently began responding to written discovery, and thus neither 28 have had an opportunity to even identify the potential third-party witnesses all parties intend to bring to trial. 6 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE Therefore, Defendants have no grounds to pursue a Motion to Transfer Venue on the basis of convenience of witnesses at this time. It should also be noted that this action is being litigated in the middle of a global pandemic. As a result of COVID-19, residents of State of California have been under some version of a stay-at-home/shelter- in-place order since March 2020. Given the rapid increase in positive COVID-19 cases in the State of California in the recent months, it is clear that no County in the State will be completely reopened soon. However, one positive stemming from the pandemic is the ease and availability of conducting remote depositions. In the event a third-party witness does live in a different county, a remote deposition is not only possible, but will be required for the foreseeable future. Therefore, any potential witnesses will not be 10 inconvenienced or require expensive travel/lodging. 11 As Defendants have failed to show with specificity how any witness would be inconvenienced to the 12 extent that such requires the Court to transfer venue, Defendants’ Motion should be denied. 13 C. The Ends of Justice Are Not Further Promoted by a Transfer 14 There is ee no doubt that before a [Motion to Transfer Venue] can be granted there must be some 15 showing of both convenience of witnesses and that the ends of justice will be served by the change.’ The 16 affidavit supporting the motion must aver the facts from which such a conclusion may be reached: ‘It is also 17 apparent that, aside from the bare averment that the ends of justice would served by the change, there was 18 no specific averment as to the facts that are relied upon to support such averment. a Flanagan v. Flanagan 19 at 421-422. 20 First, the affidavits, if any, that Defense Counsel submitted along with their Motions fail to meet the 21 standard required by Flanagan v. Flanagan. As detailed further below, Defense Counsel fails to provide any 22 information whatsoever about inconvenienced witnesses or what ends of justice would be promoted by a 23 transfer of venue. Additionally, Defendants’ Motions fail to provide any specific facts as to how the ends of 24 justice would be promoted if venue is transferred to the desired counties. Defendants only make 25 uncorroborated conclusions that Defendants will expend substantial resources if required to remain in San 26 Mateo County. This case was filed because all Plaintiffs involved were sexually assaulted at a Massage Envy 27 franchise by Defendants’ massage therapists as a direct result of Defendants’ collective, negligent, deceitful, 28 and fraudulent business practices. “While inferences may be drawn from facts presented, there must be some 7 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE evidentiary showing in or to justify the drawing of such inferences.” Dick v. La Madrid (1947) 82 Cal.App.2d 450, 453. Defendants have presented absolutely no facts. Without any actual facts or evidence to support its claim that the ends of justice would be promoted in another County, as opposed to Plaintiffs’ chosen venue, San Mateo County, Defendants’ Motion should be denied. Iv. DEFENDANT SPECIFIC FACTUAL ARGUMENTS Plaintiff hereby addresses each of Defendants specific factual arguments below. A. Case Number: 18CIV03706A i. Defendants 10 North, Inc.’ and Redondo Clinic Development, Inc.’s Motions to Transfer Venue Defendants 10 North, Inc. and Redondo Clinic Development, Inc.’s Motions to Transfer Venue and 10 supporting paperwork are nearly identical. Plaintiffs will thus respond to both so as to prevent repetitive 11 arguments. Defendants argue that Los Angeles Superior Court is the proper court for this action. This is 12 incorrect. As outlined above, ME Time, Inc. is a Defendant in the lead case (18CIV03706). ME Time, Inc.’s 13 principal place of business is in San Mateo County. As Plaintiffs filed this action in a county where some of 14 the Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’ chosen venue is proper. As 15 required by Fontaine v. Sup. Ct. (Cashcall, Inc.) ((2009) 175 Cal.App.4th 830, 836), Defendant has failed 16 “to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.” 17 Defendants failed to provide the required facts regarding the convenience of witness or how transfers 18 will further the interest of justice. Instead, Counsel’s declarations baselessly state that “the employees of this 19 franchise all reside in or near Los Angeles County,” without identifying which employees, where they live, 20 and whether or not they are going to be witnesses at trial. Defense Counsel also generally declares without 21 personal knowledge that “Plaintiff's friends, family, employer and treating providers also reside in or near 22 Los Angeles County.” Defense Counsel again fails to identify which friend, family member, employer or 23 treating provider of Plaintiff they intend to have as a witness at trial and fails to explain how that person 24 would be inconvenienced. Defense Counsel then exaggerates the distance between Los Angeles County 25 Superior Court and San Mateo County Superior Court to make a baseless declaration that “the witnesses” 26 (without identifying them) will be required to drive a long distance, incur expenses, and miss work. Lastly, 27 Defense Counsel declares that Defendants “will need to expend substantial resources if it is required to 28 transport the witnesses and evidence to San Mateo County.” This statement is again unsubstantiated by facts 8 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE and/or evidence. Thus, Defendants’ declarations fail to set forth (1) the names of the allegedly inconvenienced witnesses, (2) the nature of testimony expected from the witnesses, nor (3) the reasons why the attendance of each would be inconvenient, as is required. Defendants have not met their evidentiary burden to file a Motion to Transfer on the grounds of convenience of witnesses, nor have Defendants shown that San Mateo County is the wrong Court. Therefore, Defendants’ Motions must be denied. ii. Defendants Massage Envy Franchising, Inc., Ravello Ventures, Erik Rice, Mary Guidry, JDSME, and Leocadia Salas’ Joinder to Defendants 10 North, Inc. and Redondo Clinic Development, Inc.’s Motions to Transfer Venue 10 For the same reasons set forth above, Defendants Massage Envy Franchising, Inc. (“MEF”) Ravello 11 Ventures, Erik Rice, Mary Guidry, JDSME, and Leocadia Salas’ Joinder to Defendant 10 North, Inc. and 12 Redondo Clinic Development, Inc.’s Motions to Transfer Venue should be denied. Defendant MEF argues 13 that the cases against it were severed. This is not accurate. The Court affirmed that all Defendants in these 14 actions were properly joined. Plaintiff filed this action in a county where some of the Defendants and 15 Plaintiffs reside pursuant to C.C.P section 395(a). Thus, Plaintiffs’ chosen venue is proper. 16 B. Case Number 19CIV00392A 17 i. Defendants ACKC, Inc., Marina Clinic Development, Inc. and 5077 18 Lankershim Health Associates’ Motion to Transfer Venue 19 Defendants ACKC, Inc., Marina Clinic Development, Inc. and 5077 Lankershim Health Associates 20 argue that Los Angeles Superior Court is the proper court for this action. This is incorrect. As outlined above, 21 ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are Defendants in the lead case and 22 sub-case (19CIV00392 and 19CIV00392D). ME Time, Inc., SF Peninsula GME, LLC, and Dontot 23 Enterprises, Inc.’s principal places of business are in San Mateo County. The Court denied Defendants’ 24 previous motions on the grounds of misjoinder. The sub-cases are still joined to the lead case, which include 25 Plaintiffs and Defendants that reside in San Mateo County. As Plaintiffs filed this action in a county where 26 some of the Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’ chosen venue is 27 proper. As required by Fontaine v. Sup. Ct. (Cashcall, Inc.) ((2009) 175 Cal.App.4th 830, 836), Defendant 28 has failed “to demonstrate that the plaintiff's venue selection is not proper under any of the statutory 9 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE grounds.” Defendants have not met their burden of proving the action was not commenced in a proper Court. Thus, their Motion should be denied. ii. Defendants WMC Clinic Development, Inc. and Marina Clinic Development, Inc.’s Motion to Change Venue Defendants WMC Clinic Development, Inc. and Marina Clinic Development, Inc. argue that Los Angeles Superior Court is the proper court for this action. This is incorrect. As outlined above, ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are Defendants in the lead case and sub-case (19CIV00392 and 19CIV00392D). ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc.’s principal places of business are in San Mateo County. The Court denied Defendants’ previous motions on the grounds of misjoinder. The sub-cases are still joined to the lead case, which include Plaintiffs and 10 Defendants that reside in San Mateo County. As Plaintiffs filed this action in a county where some of the 11 Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’ chosen venue is proper. As 12 required by Fontaine v. Sup. Ct. (Cashcall, Inc.) ((2009) 175 Cal.App.4th 830, 836), Defendant has failed 13 “to demonstrate that the plaintiffs venue selection is not proper under any of the statutory grounds.” 14 Defendants failed to provide the required facts regarding the convenience of witness or how transfers 15 will further the interest of justice. Instead, Defense Counsel’s declaration only cites to a “true and correct 16 copy of Plaintiff's Third Amended Complaint” — nothing further. The Court already questioned Defense 17 Counsel’s failure to submit a proper and thorough declaration to supports its Motions to Transfer Venue in 18 July and August. Yet, Defense Counsel submitted the same insufficient declaration again. 19 Not only did Defense Counsel fail to file a supporting affidavit or declaration with the required 20 information regarding specific, inconvenienced witnesses, Defendant has failed to provide any information 21 whatsoever in its Motion as to how many third-party witnesses will be needed, which of these third-party 22 witnesses will be so inconvenienced as to require venue transfer, why such witnesses will be inconvenienced, 23 and what proposed testimony such inconvenienced third-party witnesses will be providing. After citing a 24 vast amount of case law that requires Defendant actually identify the third-party witnesses at issue and 25 adequately show how each witness would be inconvenienced, Defendant only writes: “As it pertains to this 26 case, not only will Plaintiff not suffer any material prejudice by a transfer, in fact it will be more convenient 27 for her, the ends of justice and convenience of any actual and potential relevant third-party witnesses will 28 undoubted by be burdened by having this case tried in San Mateo County.” Defendants’ Motion to Transfer 10 PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE Venue, 9:1-4. “[A]ny actual and potential material third-party witnesses who are from Los Angeles County or live hundreds of miles closer than San Mateo County, would be highly inconvenienced by being required to attend trial in San Mateo County for this matter.” Defendants’ Motion to Transfer Venue, 9:7-10. These are unsubstantiated statements. Defendants have provided no factual basis to support a Motion to Transfer Venue on the grounds of convenience and promotion of the ends of justice. Defendants, baselessly and without any corroboration, claim that all third-party witnesses that may be called to trial in this matter live in Los Angeles County or “hundreds of miles” away from San Mateo County. Again, speculation and conjecture are insufficient to support a Motion to Transfer Venue based on convenience of witnesses, especially when Plaintiff's chosen venue is in fact proper. Additionally, Defendants have not shown that the 10 ends of justice are further promoted by a transfer to Los Angeles County. The affidavit Defense Counsel 11 submitted along with this Motion only declares an attachment as a true and correct copy of Plaintiffs’ 12 amended complaint. Defense counsel failed to provide any information whatsoever about inconvenienced 13 witnesses or what ends of justice would be promoted by a transfer of venue. 14 Furthermore, Defendants’ Motion fails to provide any specific facts as to how the ends of justice 15 would be promoted if venue is transferred to Los Angeles County. Defendants only makes another 16 uncorroborated conclusion that transfer would give “a jury in Los Angeles County the helpful opportunity to 17 visit the location of the incident and better understand any testimony given at trial in determining the facts 18 of the incident.” Simply put, this argument is nonsensical, and certainly inadequate support for a Motion to 19 Transfer Venue based on the promotion of the ends of justice. This case was filed because all Plaintiffs 20 involved were sexually assaulted at a Massage Envy franchise by Defendants’ massage therapists as a direct 21 result of Defendants’ collective, negligent, deceitful, and fraudulent business practices. Yet, Defendants fail 22 to explain in what way the interests of justice are promoted by dragging a jury into a Massage Envy franchise 23 (especially in the age of COVID-19) and in what way such would allow them to “better understand” 24 testimony at trial. 25 Defendants have not met its evidentiary burden to file a Motion to Transfer on the grounds of 26 convenience of witnesses or promotion of the ends of justice, nor have Defendants shown that San Mateo 27 County is the wrong Court. Therefore, Defendants’ Motion must be denied. 28 ll PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE iii. Defendants RME Clinics, Inc. and KRG Consulting, Inc.’s Motions to Transfer Venue Defendants RME Clinics, Inc. and KRG Consulting, Inc.’s Motions to Transfer Venue and supporting paperwork are nearly identical. Plaintiff will thus respond to both so as to prevent repetitive arguments. Defendants argue that Los Angeles Superior Court is the proper court for this action. This is incorrect. As outlined above, ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc. are Defendants in the lead case and sub-case (19CIV00392 and 19CIV00392D). ME Time, Inc., SF Peninsula GME, LLC, and Dontot Enterprises, Inc.’s principal places of business are in San Mateo County. The Court denied Defendants’ previous motions on the grounds of misjoinder. The sub-cases are still joined to the lead case, which include Plaintiffs and Defendants that reside in San Mateo County. As Plaintiffs filed this action in a 10 county where some of the Defendants and Plaintiffs reside pursuant to C.C.P section 395(a), Plaintiffs’ 11 chosen venue is proper. 12 Defendants failed to provide the required facts regarding the convenience of witness or how transfers 13 will further the interest of justice. Instead, Counsel’s declarations baselessly state that “the employees of this 14 franchise all reside in or near Los Angeles County,” without identifying which employees, where they live, 15 and whether or not they are going to be witnesses at trial. Defense Counsel also generally declares that “the 16 majority of witnesses and evidence resides in Los Angeles County.” Defense Counsel again fails to identify 17 which witnesses and/or evidence Defendant intends to bring at trial an