Sutter Union High School District v. Superior Court

[797]

Opinion

PUGLIA, P. J.

Petitioner Sutter Union High School District (district) seeks a writ of mandate to compel the trial court to grant its motion to change venue. Real party in interest, Dortha Hollingshead, a permanent certificated teacher of the district, was dismissed as such employee by determination of a Commission on Professional Competence. (Ed. Code, § 44944, subd. (c)(1).) On December 22,1981, Hollingshead filed a petition for writ of mandamus in the Sacramento Superior Court naming the district both as a respondent and a real party in interest. (Code Civ. Proc., § 1094.5.) The petition seeks to compel the Commission on Professional Competence (Commission) to set aside its decision. (Ed. Code, § 44945.) On March 8, 1982, the district moved to transfer the case to Sutter County. The court denied the motion, holding that the district failed to show both that Sacramento County was not and that Sutter County was a proper county for trial of the action. The court concluded that Code of Civil Procedure section 394 was applicable and that the Commission, not a nominal party, resided in Sacramento County. We disagree with both conclusions.

The court found that the district is a “local agency” within the meaning of the third sentence of subdivision (1) of section 394 of the Code of Civil Procedure, which states in pertinent part: “Whenever an action or proceeding is brought against a . . . local agency, in any county, . . . other than that in which defendant is situated, the action or proceeding must be, on motion of said defendant . . . [transferred to a neutral county] . . . .” (See

Marin Community College Dist.

v.

Superior Court

(1977) 72 Cal.App.3d 719, 722 [140 Cal.Rptr. 310].) The court concluded that venue in Sacramento as a “neutral county” was proper under the removal provisions of the aforementioned statute and it was therefore a proper county for commencement of the action.

The court misconstrued the statute. The above quoted portion of Code of Civil Procedure section 394 is a removal or change of venue provision. It has no application unless and until an action is commenced under applicable venue rules.