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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Mar-26-2013 12:51 pm
Case Number: CGC-12-525001
Filing Date: Mar-26-2013 12:51
Filed by: RONNIE OTERO
Juke Box: 001 Image: 03994119
REPLY
TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al
001003994119
Instructions:
Please place this sheet on top of the document to be scanned.ORIGINAL
[ID
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IL
DUMMIT, BUCHHOLZ & TRAPP
Attorneys At Law
1661 Garden Highway
Sacramento, California 95833-9706
Telephone (916) 929-9600
Fax (916) 927-5368
Daniela P. Stoutenburg- State Bar No. 183785
Kirk G. Neiberger - State Bar No. 94203
Attorneys for Defendants IRENE SONU, M.D.,
GLENN A. LUTCHMAN, M.D., ALLEN COOPER, M.D.,
EMELYN LEUNG, R.N.; STANFORD HOSPITAL & CLINICS (“SHC”)
and STANFORD MEDICINE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
TRACY SPENCER } Case No.: CGC-12-525001
Plaintiff, 2 REPLY TO PLAINTIFF'S OPPOSITION
vs. 3 TO MOTION TO CHANGE VENUE
)
IRENE SONU, M.D.; GLENN A. 2 DATE: April 3, 2013
LUTCHMAN, M.D.; ALLEN COOPER, 3 TIME: 9:30 a.m.
M.D.; EMELYN LEUNG, R.N.; IMELDA jy DEPT: 302
SANIDAD, R.N.; LAURA DEBUCK, R.N.; 4
STANFORD HOSPITAL AND CLINICS;
STANFORD MEDICINE 2 Complaint Filed: October 15, 2012
} Trial Date: None set .
Defendants. J
)
)
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REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 0I. INTRODUCTION
Plaintiff's opposition to Defendants’ Motion to Change Venue is based entirely on
speculation, conjecture and supposition which in turn is based solely on inadmissible and
incompetent evidence to which Defendants have filed written objections to. When only
competent admissible evidence is considered by this Court, there can be no question that
Defendants have established that the proper venue for this case is Santa Clara County, rather than
San Francisco County, based on the proper application of California Code of Civil Procedure
section 395(a).
I. PLAINTIFF’S CASE AUTHORITY DOES NOT SUPPORT DENIAL OF
DEFENDANTS’ MOTION FOR CHANGE OF VENUE PURSUANT TO
C.C.P. §§ 395 (a) AND 396.
Plaintiff has cited numerous cases regarding the general law pertaining to venue as it
relates to Code of Civil Procedure §395(a). However, a survey of those case decisions are either
inapplicable or actually support Defendants’ motion for change of venue. Plaintiff cites to the
case of Monogram Company of California v. Kingsley (1951) 38 Cal.2d 28 which involved a
case wherein “plaintiffs brought an action for libel, slander and unfair competition in the County
of Alameda, where one of the defendants, Lewis, admittedly resides,” Monogram 38 Cal.2d at
29 , wherein the trial court held, “the propriety of the court’s ruling stems from the general
statutory provision that in the absence of specified exceptional cases not here involved (Citation
Omitted), the “County in which the defendants , or some of, reside at the commencement of
the action, is the proper County or the trial of the action.” (Emphasis Added)
As the Monogram case demonstrates, where a defendant “admittedly resides” within the
county at the time that the lawsuit is filed , the venue is entirely proper within Code of Civil
Procedure section 395(a) which is simply not the case here. For purposes of this motion,
REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 1Plaintiff has conceded that all of the named Defendants in this case, with the sole exception of
Dr. Cooper, were not residing within the County of San Francisco at the time her lawsuit was
filed. In this case, Dr. Cooper did not “admittedly reside” within the County of San Francisco
when this lawsuit was filed. Therefore, the Monogram case does not aid Plaintiff's opposition,
but, in fact, supports Defendants’ motion for change of venue.
The next case relied upon by Plaintiff is K.R L. Partnership v. Superior Court (2004) 120
Cal.App.4th 490. In the K.R L. Partnership case, the Appellate Court was confronted with an
issue of first impression in California, i.e., “Whether a plaintiff/cross-defendant against whom a
compulsory cross-complaint has been filed can. seek a change of venue under Section 396b of the
Code of Civil Procedure based on a claim of improper venue is determined by reference to the
cross-complaint.” K.R.L. Partnership 120 Cal.App.4th at 519.
The K.R. L. Partnership case involved a fact pattern wherein the defendant in the
underlying legal malpractice and breach of fiduciary duty case, in fact, did reside within the
County where the case was originally filed which was not in dispute. However, the issue in the
K. R. L. Partnership case was whether a cross-defendant could then change venue pursuant to
Code of Civil Procedure §396(b). The holding of this case was, “For the reasons explained
below, we conclude that once proper venue has been established based on the complaint, a cross-
defendant is not entitled to seek a change of venue under section 396b based on a compulsory
cross-complaint.” K.R.L. Partnership 120 Cal.App.4th at 522
Plaintiff next relies on De Young v. De Young (1946) 37 Cal.2d 521 in support of her
opposition to Defendants’ motion for change of venue. This case is entirely distinguishable from
the fact pattern of the case at bar. This case did not involve a motion for change of venue nor did
involve Code of Civil Procedure §§395(a) or 396(b). Therefore, its discussion regarding
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 227
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“domicile” is neither controlling nor helpful in ascertaining whether this case has been filed in
the appropriate court or not pursuant to Code of Civil Procedure §395(a).
Plaintiff also cites to Enter v. Crutcher (1958) 159 Cal.App.2d Supp. 841, which case
likewise does not support Plaintiff's contention that this action was filed in the proper County.
In fact, this case supports Defendants’ motion for change of venue . In the Enter case, a plaintiff
brought an action upon to accepted bills of exchange against a defendant asserting that both the
plaintiff and defendant resided in Los Angeles, California. Defendant made a motion to change
venue to San Diego County. Plaintiff countered with an affidavit claiming that the defendant’s
address was in Pasadena, California in that he has mail sent there. The Appellate Court, in
overturning the lower court’s denial of the motion for change of venue, reviewed the pertinent
case precedents noting,
“[I]t is said that “residence” as used in Code of Civil Procedure, section 395, does not
refer to “domicile”, but was used in the sense of live, dwell, abide, Sojourn, stay, remain
or lodge. Some of the lexicographers indicate that “residence” also requires an intention
to abide continuously, to dwell permanently, or for a length of time, to have a fixed
abode; that to be a “residence”, one must be an actual dweller in a certain place, though
there may be a legal domicile elsewhere.” (Citations Omitted) One who is merely
stopping over at a place in a hotel, motel, rooming house, or is vacationing is not a
resident. (Citations Omitted) A residence is established by personal presence in a fixed
and permanent abode, with the intent of remaining there. (Citation Omitted) The
fundamental elements necessary to create a residence in a particular place, or actual
bodily presence in the place, combined with a freely exercised intention of remaining
there permanently or for an indefinite time (Citations Omitted), without any present
intention to remove from the same.” (Emphasis Added ) Enter, 159 Cal.App.2d Supp. at
844-845.
Clearly, Dr. Cooper’s Declaration states unequivocally what his intention was and is
pertaining to permanently leaving the King Street apartment address, stating that, “On September,
21, 2012, we released our apartment to tenants. . .We do not intend to return to the King Street
Apartment in San Francisco. In fact, it is our intention to sell our King Street Apartment in the
REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 3future.” (Cooper Declaration 43; 1:27-28; 2:1-3) As pointed out in the Enter case, Dr. Cooper is
not “merely stopping over at a place in a hotel, motel, rooming house or is vacationing.” Dr.
Cooper’s Declaration also clearly states, “When we departed San Francisco bay, it was our
intention to permanently and indefinitely reside on our vessel in the country of Mexico. We have
since then resided in the country of Mexico and continue to do so.” (Cooper Declaration 44; 2:6-
9) Therefore, Dr. Cooper has stated everything that was required of him to state in support of
Defendants’ motion for change of venue. As stated in the Enter case, Dr. Cooper has
“established by personal presence in a fixed and permanent abode, with the intent of remaining
there” and has articulated in unequivocal manner his “intention of remaining there permanently
or for an indefinite time.”
What is even more telling with regard to the Enter case is that any opposition to a motion
for change of venue must be based on competent proof. In Enter, the court stated, “The affidavit
of the defendant as to his residence not having been overcome by any competent proof, it was
the duty of the trial court to grant the motion for change of venue.” Enter, 159 Cal.App.2d
Supp., at 590-591. Defendants have filed objections to the Declaration of Mr. Zinn, which
declaration contains nothing more than an amal gam of inadmissible hearsay statements and
documents lacking the necessary foundation and authenticity, as well as containing sheer
speculation and conjecture and other irrelevant matter. As such, Mr. Zinn’s declaration contains
no “competent proof” to contradict or even call into question the declaration of Dr. Cooper.
Under that circumstance, as the Enter case noted, it is the “duty of the trial court to grant the
motion for change of venue in this case.”
Plaintiff also cites to In Re Marriage of Tucker (1991) 226 Cal.App.3d 1249. This case is
likewise distinguishable from the case at hand, as it did not involve a motion for change of venue
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 4pursuant to Code of Civil Procedure §§395(a) or 396(b), but rather, involved the application of a
federal statute known as the Federal Uniform Services Former Spouse’s Protection Act. Even
so, the Appellate Court in In Re Marriage of Tucker specifically noted that, “The trial court’s
finding Fletcher never had an intent to reside permanently in California is dispositive on the
issue of his domicile.” (Emphasis Added) In Re Marriage of Tucker (1991) 226 Cal.App.3d at
1258. This court further held that, “In order to establish a new domicile, a person must show
“(1) physical presence at the new location with (2) an intention to remain there
indefinitely.” (Emphasis Added) In Re Marriage of Tucker (1991) 226 Cal.App.3d at 1258-
1259. This is precisely what Dr. Cooper has stated within his declaration, i.c., he is residing in
Mexico with the intention to remain there indefinitely. Therefore, the In Re Marriage of Tucker
actually supports Defendants’ motion for change of venue.
Another case cited by Plaintiff is Burt v. Scarborough (1961) 56 Cal.2d 817. The
question presented in the Burt case was whether there could be dual or multiple “residence” for
venue purposes as the defendant in this case divided his time nearly equally between an
apartment in Los Angeles and his home in Orange County. The Appellate Court in Burt noted,
“Although one may abide at times in a place for pleasure or health or repose it does not become
his domicile unless it is his intention to remain there. The place of residence within the
meaning of the statute is the fixed home of a party as understood by himself and his neighbors
and friends. This construction of the “residence” provision of section 395 as referring to a single]
residence, corresponding to domicile, has since been consistently followed by our courts...”
(Emphasis Added) Burt, 56 Cal.2d at 820.
It should be abundantly clear from the Declaration of Dr. Cooper that he has, but one
singular residence, which is in Mazatlan, Mexico.
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 527
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Plaintiff also cites to Mission Imports, Inc. v. Sup. Ct. (1982) 31 Cal.3d 921. In this case,
a lawsuit seeking declaratory and injunctive relief based on a letter agreement was brought
against a corporate defendant pursuant to California Code of Civil Procedure §395.5 which
statute provides that, “‘a corporation or association may be sued in the county [1] where the
contract is made or [2] is to be performed, or [3] or the obligation or liability arises, or [4] the
breach occurs; or [5] in the county where the principal place of business of such corporation
situated, subject to the power of the court to change the place of trial as in other cases. . .”
Mission Imports, Inc., 31 Cal.3d at 927-928.
The California Supreme Court in Mission Imports, Inc. noted that, “Since the County of
San Francisco, where Bay’s complaint was filed, is presumptively the proper county for a trial of
the action, the burden for proving otherwise rests with Mission. To prevail on its motion for
change of venue, Mission must demonstrate not only that its principal place of business is not in
San Francisco- a fact conceded by Bay- but also that the alleged liability did not arise in San
Francisco.” Mission Imports, Inc., 31 Cal 3rd at 929. Given that, “Bay’s allegations and
Mission’s evidence establish that Bay may have suffered injury (e.g., lost sales” in San
Francisco), Mission, therefore, has not met its burden of showing that such injury did not occur
in San Francisco. Accordingly, venue of the tort claims is proper as laid.” Mission Imports, Inc.,
31 Cal.3d at 930.
Here, California Code of Civil Procedure §395(a) states in pertinent part:
“If the action is for injury to person or personal property or for death from wrongful act
or negligence, the Superior Court in either the county where the injury occurs or the
injury causing death occurs or the county where the defendants, or some of them
reside at the commencement of the action, is a proper court for the trial of the action
‘11
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 6The declaration of Dr. Cooper has more than met the requirement of demonstrating that
none of the Defendants in this case, including Dr. Cooper, resided in the county of San Francisco
“at the commencement of the action.” The reason that the court in Mission Imports, Inc. found
that the County of San Francisco was the proper County for filing the action was, in part, due to
the fact that it believed that Bay had "lost sales" in San Francisco which would equate to an
injury occurring in San Francisco making that County the appropriate venue under such
circumstances. In this case, according to California Code of Civil Procedure §395(a), this statute
allows an action for personal injury or wrongful death to be brought in the county where the
injury or injury causing death occurs which in this case is Santa Clara County or in the county
where the defendants or some of them reside at the commencement of the action. None of the
Defendants named in this case, save Dr. Cooper, are claimed by Plaintiff to have resided in the
County of San Francisco at the time this lawsuit was commenced. Therefore, Plaintiffs entire
opposition hinges on the unsupported claim and speculation that Dr. Cooper was, in fact, a
resident of the County of San Francisco at the time this action was commenced. As Plaintiff has
done nothing to disprove any of the facts submitted to the court through Dr. Cooper’s
Declaration, California Code of Civil Procedure § 395(a) mandates that this case be transferred
to the County of Santa Clara wherein the personal injury and/or death of decedent occurred.
Plaintiff next cites to Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, in support
of their opposition. In the Fontaine case, the plaintiff asserted causes of action for violation of
the Rosenthal Fair Debt Collection Practices Act, invasion of privacy, and negligent infliction of
emotional distress against a defendant, Vargas, who resided in Orange County. The trial court
granted a motion for change of venue from Santa Clara County to Orange County. Plaintiff
REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 7argued that there were two exceptions that would allow the case to remain in Santa Clara County
which included: 1) the injury occurred in Santa Clara County and 2) the action arose from a loan.
In the Fontaine case, the court noted, "In opposing the motion to change venue, "[t]he plaintiff
may bolster his or her choice of venue with counter affidavits consistent with the complaint's
theory of the type of action but amplifying the allegations relied upon for venue." Fontaine, 175
Cal.App.4", at 836. In this case, Plaintiff's counter affidavit and documents submitted have not
done anything to amplify the allegations of the complaint upon which they rely upon for venue.
Additionally, as previously stated, the vast majority of Mr. Zinn’s Declaration, as well as
documents attached thereto, are incompetent and inadmissible as evidence to oppose Defendants’
motion for change of venue.
In Karson Industries, Inc. v. Court of Contra Costa County (1969) 273 Cal.App.2d 7,
which Plaintiff also cites in her opposition, a defendant Corporation sought to change venue
from the Superior Court of Contra Costa County to its principal place of business, San
Bernardino County. In the Karson case, the Appellate Court noted that, "defendants affidavit
effectively negated four of the five possible choices of venue, and defendant relies upon the
allegation of the verified complaint in support of its contention that the breach occurred in San
Bernardino County. Plaintiff's counter affidavit and authorities are limited to the last possibility,
that the breach of the contract occurred in Contra Costa County.” (Emphasis Added) Karson,
273 Cal.App.2d at 9. The court found that venue was appropriate in Contra Costa County
stating, "We are of the opinion that the weight of authority and the better reasoned cases support
that repudiation by letter is a breach at the time in and the place where the letter is dispatched.
The only theory under which venue is in Contra Costa County could be had is, therefore,
eliminated and defendant is entitled to change of venue to the County of its principal place of
REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 827
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business." (Emphasis Added.) Karson, 273 Cal.App.2d at 10. Utilizing the Karson analysis, a
similar result should occur in this case. As Plaintiff has been unable to provide any admissible
evidence in opposition to Defendants’ motion for change of venue, Defendants have established
that Dr. Cooper was not a resident of the County of San Francisco at the time this case was
commenced, pursuant to Code of Civil Procedure section 395(a). Therefore, Defendants have
negated the only basis for Plaintiff's claim to venue within the County of San Francisco. Just as
the Appellate Court in Karson found that the defendant had negated any basis for the case to be
venued in Contra Costa County, this Court should find that Defendants have negated the only
basis (i.e., Dr. Cooper's residence) as being within the County of San Francisco when this action
was commenced.
Plaintiff also cites to Briggs v. Superior Court (1947) 81 Cal.App.2d 240, in her
opposition. However, this was not a venue case, but rather involved an issue of whether the
driver of vehicle was a "non-resident" pursuant to Vehicle Code §404. This case involved a man
who was enlisted in the Navy and ordered to report to Alameda by the Navy and whether that
made him a resident or nonresident of Alameda County. The court in Briggs, stated,
"While practically all of the decisions say intention is the controlling factor in
determining residence, this court said, (Citation Omitted), it may be more
satisfactorily shown by what is done not by what is said. (Citation Omitted) There
were no counter affidavits filed. However, the substance of the affidavits are
contradictory." (Emphasis Added) Briggs 81 Cal.2d, at 244.
In this case, "the substance of the affidavit" provided by Dr. Cooper is not contradictory
and clearly sets forth his intention supported by his actions having retired and leasing his San
Francisco apartment to someone else, as well as, physically leaving the San Francisco area to
permanently reside in Mazatlan, Mexico. Therefore, it is clear that Defendants’ motion for
Mt
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 927
28
change of venue based on the affidavit of Dr. Cooper is entirely consistent with the Briggs
decision as it sets forth Dr. Cooper's clear intent followed by his unequivocal actions on his part.
Defendants have established that Santa Clara County is the proper County for this case to
be venued. Dr. Cooper has testified that he had retired and leased his San Francisco apartment
on 9/21/12 departing San Francisco Bay on 9/22/12 for Mazatlan, Mexico, well before this action
was commenced on 10/5/12. He is also testified that it is his intention to sell the San Francisco
apartment, and that he has absolutely no intention of returning there to live. Dr. Cooper has also
testified that it is his intention to permanently and indefinitely reside in Mazatlan, Mexico where
he currently resides. Nothing submitted in opposition to Defendants' motion to change venue by
Plaintiff contradicts these key facts. Since Dr. Cooper was not a resident of San Francisco at the
time this case was commenced, then this case should properly be transferred to Santa Clara
County.
DATED: March 26, 2013 DUMMIT, BUCHHOLZ & TRAPP
w» Ltt Heda —
Daniela PY Stoutenburg
Kirk G. Neiberger
Attorneys for Defendants IRENE SONU, M_D.,
GLENN A. LUTCHMAN, M.D., ALLEN
COOPER, M.D.,EMELYN LEUNG, RN;
STANFORD HOSPITAL & CLINICS (“SHC”) and|
STANFORD MEDICINE
REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 10DECLARATION OF SERVICE
Spencer v. Sonu, et al.
San Francisco County Case No. CGC-12-525001
I am employed in Sacramento County; I am over the age of eighteen years and not a part:
to the within action; my business address is 1661 Garden Highway, Suite 100, Sacramento,
California 95833-9706.
On March 26, 2013, I served the foregoing documents described as REPLY TO
PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE on the interested parties|
in this action as follows:
Attorneys for Plaintiffs:
Carter M. Zinn
T. Andrew Davies
Law Offices of Carter M. Zinn
55 Francisco Street
San Francisco, CA 94133
Phone: (415) 292-4100
Fax: (415) 292-4106
By United States Postal Service. I enclosed the documents in a sealed envelope or
package with postage fully prepaid, addressed to each party at their address of record (listed
herein) and placed the envelope for collection and depositing with the United States Postal
Service on this same date in accordance with ordinary business practices. The envelope or
package was placed in the mail in Sacramento, California.
v By Overnight Delivery Service. I enclosed the documents in an envelope or package
provided by an overnight carrier and addressed to each party at their address of record (listed
herein). I caused the envelope or package to be placed for collection and overnight delivery at a
regularly utilized pick-up location of the overnight delivery carrier.
By E-Mail or Electronic Transmission. Based on a court order or an agreement of the
parties to accept service by e-mail or electronic transmission, I caused the documents to be sent
to each party at their e-mail addresses of record (listed herein), I did not receive, within a
reasonable time after the transmission, any clectronic message or other indication that the
transmission was unsuccessful.
Via Facsimile. By sending a true copy thereof by facsimile machine to the numbers
listed herein, and then depositing for collection and mailing, following ordinary business
practices, a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid.
‘Th
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 11By Messenger Service. I served the documents by placing them in an envelope or
package addressed to each party at their address of record (listed herein) and providing them to a
professional messenger service for service. (See Declaration of Messenger, attached).
Tam aware that on motion of a party served, service is presumed invalid if the postal
cancellation date or postage meter date is more than one day after date of deposit for mailing as
stated on this declaration.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on March 26, 2013 at Sacramento, California.
Fen A Rha
Sheryl A. R&dacker
REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 12