Scribner v. Superior Court

Opinion

DEVINE, P. J. Petitioner John Scribner, defendant in a paternity suit, seeks mandate to compel respondent, Superior Court of Sonoma County, to transfer venue to Fresno County, where he resides.

The suit was filed in Sonoma County by the district attorney for that county on behalf of Eva K. Schmidt, a resident. The complaint alleges that petitioner is the father of Miss Schmidt’s son and asks that petitioner be required to support the child. Before filing an answer, petitioner moved for change of venue to Fresno County, the county of his residence. The district attorney filed a counteraffidavit requesting that the action be retained in Sonoma County for “the convenience of the Plaintiff and wit[766]nesses and in the interests of justice.” The trial court denied petitioner’s motion for a change of venue.

The petitioner’s motion should have been granted. The general principle of transferring to the county of the defendant’s residence is stated in Code of Civil Procedure section 395, subdivision (a). Code of Civil Procedure section 396b provides that the court may retain the action in the county where it was commenced if it appears that the convenience of witnesses or the ends of justice will be promoted, if an answer be filed. In the case before us, no answer was filed. Transfer, therefore, became mandatory. (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 557, p. 1372; Johnson v. Superior Court, 232 Cal.App.2d 212, 214 [42 Cal.Rptr. 645].) After the answer is filed, plaintiff may move for retransfer to the original court for the convenience of witnesses and the ends of justice. (2 Witkin, supra, § 557, p. 1372.)

The Attorney General contends that there is an exception to the rule stated above for paternity suits in which the district attorney is authorized to proceed under the provisions of Civil Code section 231 and Welfare and Institutions Code section 11479. In the counteraffidavit which was filed by the district attorney in opposition to the motion for change of venue, it is declared that the child’s mother, a minor, is a resident of Sonoma County, is on welfare therein, and does not have financial assets to allow her to go to and from Fresno County. It is represented that the District Attorney of Sonoma County cannot act as her counsel in Fresno County, and that representation of the mother would have to be by the District Attorney of Fresno County and if it were declined the mother would be without benefit of counsel. It is argued by the People that if the Legislature had intended the defendant’s residence to be the place of trial, it would not have placed the burden of bringing suit on a district attorney, but would have chosen a statewide agency such as the Attorney General. It is argued that the result of transfer to the county of the defendant’s residence would “deter the prosecution of paternity suits thereby burdening the child with the stigma of bastardy and the county of its residence with the sole responsibility for the child’s welfare.” (We observe in passing that a successful paternity suit has no effect on the subject of legitimacy of the child. It simply establishes the fact that the true father declined to support the unfortunate child and it compels him to carry his proper burden.)