Newman v. County of Sonoma

GIBSON, C. J. This is an appeal by Sonoma County from an order denying its motion for a change of venue.

The action was commenced in San Francisco against the Northwestern Pacific Railroad Company and Sonoma County to recover damages for personal injuries and wrongful death. The railroad company is a corporation having its principal place of business in San Francisco, and the accident occurred at a railroad crossing in Sonoma County.

The complaint was filed on April 28, 1958; the county answered in July 1958 and demanded a jury trial. In the latter part of June 1959 plaintiffs made a settlement agreement with the railroad company and gave it a covenant not to sue. The trial court approved the settlement agreement, and the county was notified. A pretrial conference was had on October 5, 1959, and December 14 was set as the date for trial. Briefs were prepared by the county as well as by plaintiffs, and the complaint was amended on December 8, 1959. For reasons that do not appear in the record, the trial was not commenced on the date set. On May 17,1960, Sonoma County made a motion for a change of venue to that countjq and, after plaintiffs filed a memorandum of points and authorities in opposition, the court denied the motion.

It is clear that insofar as concerns the railroad company the action was properly commenced in San Francisco. Section 16 of article XII of the Constitution provides, “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases. ’'

Section 394 of the Code of Civil Procedure, upon which the motion for a change of venue was based, contains several provisions relating to the place of trial of actions by or against counties and cities and provides in part that any negligence action against a county for an injury occurring therein to person or property “shall be tried in such county.”

The first question presented is whether section 394 affects jurisdiction in the fundamental sense, that is, whether only [627]the Superior Court of Sonoma County and no other court has the power to try the action. Except in a few cases in which the Constitution makes the place of trial jurisdictional (see art. VI, § 5) or a statute makes a local place of trial part of the grant of subject matter jurisdiction, venue is not jurisdictional. (See 1 Witkin, California Procedure, pp. 699, 719.) Section 394 is not the statute granting subject matter jurisdiction in this type of case and does not purport to specify the place of trial as part of such a grant. The authority to sue counties is set forth in the Government Code, without any limitation as to the place of the suit. (Gov. Code, § 23004, subd. (a).) The Legislature, instead of including the provision before us as part of the authorization in the Government Code, placed it in the Code of Civil Procedure among several venue provisions which are clearly not jurisdictional. (See Herd v. Tuohy, 133 Cal. 55, 59-60 [65 P. 139].) It should also be noted that section 394 provides that upon stipulation of the parties actions referred to in the section may be tried in any county.