(Note, this is a copy of the Motion for Change of Venue as created using OCR from a paper copy of the motion on public file with the San Mateo County Small Claims Court clerk. It appears to be an accurate scan, but of course there could be errors. An apparently identical motion was filed for Case No. SCS-111805.)

August 16, 2002


Superior Court of California
County of San Mateo
500 County Center
Redwood City, CA 94063

Re:	Motion for Change of Venue
	Hypertouch Inc. v. Data Exchange Corporation
	Small Claims Case No.: SCS-111806

Dear Sir or Madam:

This letter is a challenge to the change of venue in the above referenced case. The plaintiff, Hypertouch Inc., has indicated that venue is proper in San Mateo County because of Item "B" in the Venue Table, "a person was injured or personal property was damaged in this judicial district." Please be advised that Data Exchange Corporation is located in Camarillo, Ventura County, California. The Plaintiff is not alleging any personal injury or injury to personal property, but rather that Data Exchange Corporation sent them an e-mail in violation of California statutes. We do not believe this satisfies the California Code of Civil Procedure.

Section 395(a) of the California Code of Civil Procedure provides "if the action is for injury to person or personal property . . . the county where the injury occurs or the county in which the defendants, or some of them resided at the commencement of the action, is the proper county for the trial of the action."

The cases are clear that the injury referred to in Section 395 is physical injury to a person or his or her property. See for example, Cacciaguidi v. Superior Court, 226 CalApp. 3d 181. In that case a plaintiff had sought venue at the location of the receipt of offending letters reasoning that the place of receipt of the letters was the situs of the injury caused by the letters. The court noted that "the real parties seek venue in the place of their residence, rather than that of the defendants. As stated in Carrruth, '[a] construction of a 'injury to persons' permitting such a result would be in clear degradation of the right of the defendant to have an action brought against him tried in the county of his residence". Id. at 186. "The place where the personal injury occurs is not necessarily the locale of the events which ultimately caused the injury. Such personal injury, with no definite situs, should not in reason determine the place of trial." Although there are no cases that determine the venue for an action in relation to alleged improper e-mail, certainly it is analogous to ordinary mail, and if the situs of the injury in the case of offending ordinary mail is not the place of receipt of the mail, then the situs of the injury in the case of allegedly offending e-mail is not the place of receipt of the e-mail. See also Cubic Corporation v. Superior Court, 186 CalApp 622 at 625 "It is settled, however, that actions sounding in tort (severe humiliation, anguish, emotional distress and trauma) are not encompassed within the limited statutory language of Section 395 so as to justify grounding venue on them.

Data Exchange Corporation	A World Leader in High-Tech Repair Services	Data Exchange Europe, Limited
3600 Via Pescador		Clonshaugh Industrial Estate
Camarillo, CA 93012-5051		Clonshaugh, Dublin 17, Ireland
Phone: (805) 388-1711		Phone: 353-1-848-6555
Fax: (805) 482-4856		Fax: 353-1-848-6559
(end page 1, begin page 2)

Superior Court of California
County of San Mateo
August 16, 2002
Page 2





The defendant Data Exchange Corporation is located far from San Mateo County, does not do business at this time in San Mateo County, and should not be required to travel to San Mateo County to defend this action. We respectfully request that the court dismiss this claim and that the defendant be required to refile the claim in Ventura County.

Very truly yours,

DATA EXCHANGE CORPORATION



(signture not scanned in)

By Sheldon Malchicoff, President

SM:pf








(End page 2, end of scanned document)