Transamerica Homefirst, Inc. v. Superior Court

Opinion

JONES, P. J.

The question we are asked to resolve is whether an action brought on behalf of a conservatee by the county’s public guardian against a nonresident defendant must be transferred to a neutral county in accordance with section 394 of the Code of Civil Procedure, subdivision (a).

1

We conclude that such an action is not one “brought by” a county agency within the meaning of section 394. Accordingly, we deny the petition for a writ of mandate to compel the trial court to transfer venue.

Background

Transamerica Homefirst, Inc. (Homefirst), is a real estate lender that made a reverse mortgage to Berta Gray in 1994 on her Burlingame home. In 1997 the Public Guardian of San Mateo County was appointed conservator of the person and estate of Berta Gray. In July 1998 the probate court granted permission to the public guardian to proceed with a lawsuit. The public guardian, as conservator for Berta Gray, thereupon filed the present class action lawsuit against Homefirst to challenge the validity of Homefirst’s reverse mortgage program. The action was filed in San Mateo County; Homefirst is headquartered in San Francisco.

Homefirst moved to transfer the action to a neutral county in accordance with section 394, but the trial court denied the motion. Homefirst now petitions for a writ of mandate to compel the trial court to transfer venue. (§ 400.) The public guardian submitted opposition to the petition, and we issued an order to show cause why a peremptory writ of mandate should not issue.

Discussion

There is no dispute that Homefirst is a nonresident of San Mateo County, nor is there any question that the public guardian is a county

[580]

agency, part of the aging and adult services division of the county’s health services agency. Homefirst argues that those two circumstances are all that is required by section 394 to mandate a transfer to a neutral county. We cannot agree.

The statute, applies when the lawsuit is “brought by” a public entity, and the determination of whether an action is brought by a county agency depends upon the role of that county agency within the lawsuit.