Delgado v. Superior Ct. of Sacramento Cty.

California Court of Appeal Oct 31, 1977 No. Civ. 16920Published

Before: Paras

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Holding. The court held that in a mixed venue case involving a county defendant, Code of Civil Procedure section 394 mandates the transfer of the action to the defendant county, as the 1970 amendment to section 395 subordinates residence-based venue to other venue provisions.

Issues

Whether a trial court has a mandatory duty under Code of Civil Procedure section 394 to transfer an action to a defendant county when other defendants reside in a different county.
Whether the 1970 amendment to Code of Civil Procedure section 395 subordinates residence-based venue to the local venue provisions of section 394.

Disposition. denied

Quotations verified verbatim against the opinion

“The phrase, “Except as otherwise provided by law” means that section 395 is to be applied only when there is no other applicable venue provision.”

“In the present case section 394 applies, and the trial court correctly concluded that it had a mandatory duty under that section to transfer the action to Yolo County.”

Opinion

PARAS, J.

—Petitioners seek a writ of mandate after the Sacramento Superior Court ordered this action transferred to Yolo County for trial.

On or about December 28, 1976, on Highway 16 in Yolo County, Robert and Mary Delgado’s 1972 Chevrolet collided with a Yolo County sheriff’s car occupied by Sheriff’s Officers Louis Delgatto and Dennis Oliver. Mary was killed and Robert suffered serious injuries. On April 22, 1977, Robert, Mary’s three minor children, and Mary’s other heirs filed this action in Sacramento County for property damage, personal injuries and wrongful death against the seller of the Chevrolet (they bought it used in 1974 from a Sacramento dealership. Lew Williams Chevrolet Center), the manufacturer, General Motors Corporation and the County of Yolo.

On May 11, 1977, prior to any responsive pleadings, Yolo County filed a notice of motion to transfer venue to Yolo County under Code of Civil Procedure section 394. A hearing was set for June 2, 1977. Petitioners filed written opposition to the motion on May 25, 1977. The next day. May 26, 1977, seven days before the June 2. 1977 hearing, Yolo County served by mail and filed a supplemental memorandum of points and authorities and declaration, for the first time seeking a change of venue based upon convenience of witnesses and promotion of the ends of justice under Code of Civil Procedure section 397, subdivision 3. Petitioners filed and personally served their opposition thereto on June 1, 1977.

On June 2, 1977, without stating whether its action was based upon section 394 or section 397, subdivision 3, the Sacramento Superior Court ordered the case transferred to Yolo County.

Petitioners correctly argue that the order cannot be upheld as an exercise of the court’s power to transfer for the convenience of witnesses

[563]

under Code of Civil Procedure section 397, subdivision 3, because no answer was filed (see

Pearson

Superior Court

Delgado v. Superior Ct. of Sacramento Cty.

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PARAS, J.

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