Perceptive Tax Advisory Group, LLC vs. Zero Effort Nutrition, L.P.

“c. Plaintiff resides in Orange County and performed the contract in Orange County; “d. The defendants did business with Plaintiff in Orange County, and recently did and/or currently do business in Orange County in the ordinary course of their business; and “e. The defendants’ performance obligations under the contract alleged herein were to be completed in Orange County, and, therefore, the defendants’ breaches and violations took place in Orange County.”

Generally, except as otherwise provided by law and subject to the power of the court to transfer ... the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” [CCP § 395(a) (emphasis added); see Brown v. Sup.Ct. (C.C. Myers, Inc.) (1984) 37 Cal.3d 477, 483.]

The defendant has the right to have a transitory action against the defendant tried in the county where the defendant resides. Defendant’s right to have the action tried at defendant’s residence is subject to the qualification “Except as otherwise provided by law”.

The “general rule” of venue has effect only when no other venue provision applies. Wherever there is a more specific venue statute, the “general rule” is subordinated. [Brown v. Sup.Ct. (C.C. Myers, Inc.) (1984) 37 Cal.3d 477.]

As to breach of contract actions, such actions are triable in the county where defendant resides OR where the contract was entered into OR where it was to be performed (if specified in writing). [CCP § 395(a).]

This means the place where the acceptance occurred (e.g., where it was mailed, or where words of acceptance spoken). [See Wilson v. Scannavino (1958) 159 Cal.App.2d 369, 370- 371, 324 P2d 350, 351—contract negotiated by telephone “entered into” where acceptor spoke]

The place of making is deemed to be the place of performance unless a different place is specified in a “special contract in writing.” [CCP § 395(a)]

Here, Cherry Kiely, Managing Member of Plaintiff Perceptive Tax Advisory Group, LLC, declares that she signed the contract at issue from Plaintiff’s office in Orange County. (Decl. Kiely¶4.) She also declares that, “PTAG fully performed its services under the Agreement, and every service was performed by PTAG personnel working from PTAG’s Orange County offices.” (Id.¶9.)

Finally, she declares, “PTAG issued its invoices for the engagement from its Orange County offices, and the invoices

directed that payment be remitted to PTAG by wire or ACH pursuant to the instructions stated on the invoices. Payment was therefore to be made to PTAG in Orange County.” (Id.¶10.)

However, in the reply, Defendant submits evidence Mariana Rossano, (Defendant’s General Partner) that:

“4. On or about May 23, 2022, I executed the Agreement on behalf of ZENLP by DocuSign, signing in the capacity of “CEO” of Zero Effort Nutrition. I executed the Agreement from ZENLP’s Sun Valley, Los Angeles County offices. I have never conducted business on behalf of ZENLP from any location in Orange County, and I did not do so in connection with the execution of the Agreement.

“5. ZENLP’s operating bank accounts, financial records, and bookkeeping are maintained exclusively in Los Angeles County. All authorizations for ZENLP’s disbursements— including any payment that would have been due under the Agreement—are made from ZENLP’s Sun Valley offices. No ZENLP account, record, or disbursement authority is, or has ever been, located or exercised in Orange County.”

Per the prior declaration of Ms. Kiely, Ms. Rossano signed after her. Therefore, it appears Ms. Rossano was the last act. “The last act necessary to the validity of a contract, usually the act constituting acceptance, is the place of its making.” [Jhirmack Enterprises, Inc. v. Superior Court (1979) 96 Cal.App.3d 715, 723.]

Also, it would appear that the breach occurred in LA as well because this case is about Defendant’s alleged failure to pay, and Ms. Rossano declares, “All authorizations for ZENLP’s disbursements— including any payment that would have been due under the Agreement—are made from ZENLP’s Sun Valley offices”.

As such, venue is proper in LA because Defendant is a resident of LA, the contract was entered into in LA, and breached in LA.

Therefore, the Motion for Change of Venue is GRANTED.

Defendant to give notice. 105 Am-Kore Fire Protection Co. Inc. vs. Phoebecat Investments, LLC, 24-01398810 Plaintiff Am Kor Fire Protection Co., Inc. (“Am-Kor”) moves the Court for an order consolidating the following actions pursuant to Cal. Civ. Proc. Code § 1048(a):

- Am-Kor Fire Protection Co., Inc. v. Phoebecat Investments, LLC, et al., Orange County Superior Court Case No. 30-2024-01398810-CU-BC-WJC (the

“Breach of Lease Action”)

- Am-Kor Fire Protection Co., Inc. v. Phoebecat Investments, LLC, et al., Los Angeles County Superior Court Case No. 24PSCV03747 (the “Fraudulent Conveyance Action”)

Initially, when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (CCP §1048(a).)

A complete consolidation may be ordered where the parties are identical and the causes of action could have been joined. The pleadings are regarded as merged, one set of findings is made, and one judgment is rendered. Because the actions are effectively merged, parties who appeared in either action are subject to the court’s jurisdiction in the merged action. [See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147-1148.]

Consolidation is limited to cases pending in the same court. Where cases having “common questions” are pending in different courts, as here, either court may order “noncomplex” cases transferred to and consolidated with cases pending before the court; “complex” cases must be “coordinated” with each other. [CCP §§ 403, 404.]

To that end, Code Civ. Proc., § 403 provides:

“A judge may, on motion, transfer an action or actions from another court to that judge’s court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action. Notice of the motion shall be served on all parties to each action and on each court in which an action is pending. Any party to that action may file papers opposing the motion within the time permitted by rule of the Judicial Council. The court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing.”

Here, the motion was served on Wendy Hong Trinh, Billy Ha, and PLC Home Design, LLC.