Skidmore v. County of Solano

WOOD (Fred B.), J.

In this action for money allegedly due 'plaintiff for services rendered the county of Solano pursuant to a contract in writing between the parties, plaintiff has appealed from an order transferring the cause from the city and county of San Francisco to the county of Solano, based upon a finding that the Superior Court in and for the County of Solano is the “proper court for the trial” of the action. He claims that San Francisco is a proper county, it being a county other than the defendant county and other than the county of plaintiff’s residence.

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The order of transfer is correct and must be affirmed. Solano is and San Francisco is not a proper county for the trial of the action.

We start with section 396b of the Code of Civil Procedure. It provides for the transfer of an action “to the proper court” when commenced in a court having jurisdiction of the subject matter (in this ease, the superior court in and for any county of the state; hence, inclusive of San Francisco) “other than the court designated as the proper court for the trial thereof. ’ ’

We look to sections 392-395 of the code to find what is the “proper court.” We find nothing pertinent in sections 392, 393, or 395.1. Sections 394 and 395 both point to the Superior

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Court in Solano County as the proper court. Neither of them puts San Francisco in that category.

The first sentence of section 394 provides that “ [a]n action . . . against a county . . . may be tried in such county . . . unless such action ... is brought by a county ... in which case it may be tried in any county . . . not a party thereto.” That may be a designation of Solano as a proper court or it may be merely a declaration that the presence of Solano County as a party defendant does not render the Solano court unavailable for the trial of the action. We need not decide which is the correct view for section 395, which applies here if section 394 does not, provides the same answer.

The third sentence of section 395 deals with a defendant who “has contracted to perform an obligation in a particular county” and declares that the “county where such obligation is to be performed, or ... in fact was entered into, or the county in which the defendant . . . resides at the commencement of the action” is “a proper county for the trial of an action founded on such obligation.” The county in which the “obligation is' incurred” is “deemed . . . the county in which it is to be performed unless there is a special contract in writing to the contrary.” The clause last quoted narrows it to the county of defendant’s residence or the county where the obligation was incurred, in the absence (as in this case) of a special contract in writing to the contrary.