Paesano v. Superior Court

California Court of Appeal Aug 29, 1988 No. C004428Published

Before: Puglia

AI Brief

AI-generated · verify before citing

Holding. The court held that the mandatory venue provisions of Code of Civil Procedure section 394 do not preclude a trial court from exercising its discretion to change venue under section 397, subdivision 2, when there is reason to believe an impartial trial cannot be had.

Issues

Does section 394 take precedence over section 397, subdivision 2, regarding a motion for change of venue?
Must a trial court rule on the merits of a motion for change of venue based on the inability to have an impartial trial even if section 394 otherwise mandates venue in that county?

Disposition. remanded

Quotations verified verbatim against the opinion

“The issue in this proceeding is whether section 394, a mandatory removal provision, takes precedence over section 397, a discretionary removal provision. We shall hold that it does not.”

“Section 397 unambiguously applies without limitation to any action or proceeding within its terms.”

“The law is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction”

Opinion

PUGLIA, P. J.

Petitioners are plaintiffs in a civil action pending in respondent superior court in which the real party in interest, County of Mono (county), is a defendant. That court denied petitioners’ motion for change of venue and they now seek a writ of mandate directing the court to vacate its order of denial and grant the motion. (Code Civ. Proc., § 400; all subsequent statutory references to sections of an undesignated code are to the Code of Civil Procedure.) The issue in this proceeding is whether section 394, a mandatory removal provision, takes precedence over section 397, a discretionary removal provision. We shall hold that it does not. We shall therefore order a writ of mandate to issue directing respondent court to consider and rule on petitioners’ motion to change venue on grounds there is “reason to believe that an impartial trial cannot be had” in Mono County. (§ 397, subd. 2.)

On November 23, 1982, petitioners commenced an action in Mono Superior Court for wrongful death and premises liability against the county, the State of California and fictitious defendants. In a form complaint petitioners allege their son died in an automobile accident which occurred in Mono County and was proximately caused by county’s negligence.

On March 30, 1988, petitioners moved for change of venue on the ground “there is reason to believe that an impartial trial cannot be had in [Mono County].” The motion was supported by affidavit and points and authorities. The county opposed the motion, arguing that section 394 mandates trial of the action in Mono County.

[20]

Section 394 provides in pertinent part: “ . . . any action or proceeding against the . . . county ... for injury occurring within the . . . county . . . caused by the negligence or the alleged negligence of such . . . county ... or its agents or employees, shall be tried in such county . . . .”

The court denied petitioners’ motion, entering the following order in the minutes: “The ruling of the court denying [petitioners’] motion for Change of Venue is based upon the courts

[sic]

finding that CCP Section 394 mandates venue of this case in Mono County. Therefore the issues under CCP 397 need not now be addressed.”

Paesano v. Superior Court

AI Brief

PUGLIA, P. J.

More from California Court of Appeal

Related research

AI Brief