San Jose Ice & Cold Storage Co. v. City of San Jose

NOURSE, P. J. The plaintiff commenced this action in the city and county of San Francisco to recover damages alleged to have been done to certain real property located in the City of San Jose, Santa Clara County. The City of San Jose, Southern Pacific Railroad Company, and Southern Pacific Company were joined as defendants in a complaint alleging that, due to a relocation of the main railroad line through the City of San Jose in accordance with the directions and orders of the state railroad commission, certain grade separations and crossings were made which impaired plaintiff’s access to its real property which is located upon one of the streets involved in the order.

In due time the two railroad corporations joined in a motion for a change of venue to the county of Santa Clara upon the grounds that, since the action involved “injuries to real property” situated in the county of Santa Clara, the latter county was the proper county for the trial of the action in accordance with the provisions of section 392 of the Code of Civil Procedure. The plaintiff answered the motion, asserting that it was entitled to choose its own forum because of the provisions of section 394.

The latter section has no application to the case, but the place of trial is fixed by section 392. In the early case of O’Neil v. O’Neil, 54 Cal. 187, 188, it was said that this right to have the trial in the county where the real property is situated: “Is a right which belongs to each defendant; and although it is not a vested right—because the regulations upon the subject relate only to the remedy—yet it is one which every defendant can exercise for himself so long as the remedy exists, and until he loses it by his own voluntary act.”

Section 392 was amended in 1933 to read in part, “ (1) Subject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the real property, which is the subject of the action, or some part thereof, is situated, is the proper county for the trial of the following actions: (a) ... for injuries to real property.” Subdivision 2 provides that the method for determining the proper “court” for the trial of such actions is the one in [64]the county “hereinabove designated as the proper county” having jurisdiction of the subject-matter. When section 392 stood in its old form, section 396 provided that when an action is commenced in an improper county it may nevertheless be tried there unless the defendant should demand a transfer to the proper county. With the amendment to section 392, section 396 was repealed and a new section adopted which was amended in 1935 to provide that: “If an action or proceeding is commenced in a court which lacks jurisdiction of the subject matter thereof ... it shall, on the application of either party, or on the court’s own motion, be transferred to a court having jurisdiction.” Though the Constitution, in section 5 of article YI, declares that the process of superior courts shall extend to all parts of the state, and such courts have general jurisdiction to try the character of action involved here, it is left to the legislature to designate the forum or proper county for the commencement and trial of 'particular classes of actions, except, of course, those actions which are specially covered by the Constitution. (25 Cal. Jur., p. 853; Perkins v. Winder, 123 Cal. App. 467 [11 Pac. (2d) 394].) Hence, when the legislature, by section 392, declares that “any court in such county having jurisdiction of the subject matter of the action, is a proper court for the trial thereof”, it in effect has declared that any other court is an “improper” court and has emphasized this by changing the word “county” to “court” in section 397 so that a change of the “place of trial” is now authorized on motion when it appears that the “court” designated in the complaint is not the “proper court”. At the same time the legislature adopted section 396b declaring that a cause commenced in a court “other than the court designated as the proper court for the trial thereof” may nevertheless be tried there unless the defendant demands a transfer to the proper court. The early cases have held that section 396 conferred jurisdiction upon the court of the “improper” county, except where such jurisdiction was expressly limited by other provisions of the code or by the Constitution.