Grime v. Superior Court

Opinion

KAUS, P. J. Petitioner and defendant David Grime seeks a writ of mandate to compel respondent superior court to dismiss an action brought by real party in interest and plaintiff Charles J. Spake. We granted an alternative writ on order of our Supreme Court.1

Facts

The facts are undisputed. Plaintiff filed a personal injury action against defendant in the Los Angeles superior court. On November 17, 1972, the Los Angeles Superior Court granted defendant’s motion for a change of venue to- the Orange County Superior Court, the only proper court for trial. (Code Civ. Proc., § 396b.)

Plaintiff did not appear on the hearing of the motion. The court’s minute order provides: “Motion is granted. The action is transferred to the County of Orange Superior Court. Plaintiff to pay transfer fees. Defendant to serve Notice.”

[48]On November 20, defendant mailed plaintiff notice of the court’s ruling: “Please take notice that on November 17, 1972, the above-entitled Court granted the Motion of defendant ... for Change of Venue to Orange County Superior Court.” Plaintiff received this notice.

Plaintiff did not pay the transfer fees. One year later, on November 20, 1973, defendant noticed a motion to dismiss the action, based on plaintiff’s failure to pay the transfer costs within the statutory one-year period. On December 26, 1973, the court denied defendant’s motion to dismiss “upon the condition that plaintiff deposit the requested fee within ten . . . days . . . .”

This writ proceeding followed.

Discussion

This case involves the application of Code of Civil Procedure section 581b, one of various dismissal statutes intended to force litigants to follow up on the sometimes reflexive filing of complaints.

Section 581b provides: “No action . . . where the same was not originally commenced in the proper court, and which has been ordered transferred to the proper court, shall be further prosecuted, and no further proceedings shall be had therein, until the fees and costs of the transfer . . . have been paid, as provided in Section 399 . . . .”

Code of Civil Procedure section 399 provides that when “the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper . . . such costs and fees shall be paid by the plaintiff before such transfer is made; ...”