Cubic Corp. v. Superior Court

California Court of Appeal Oct 21, 1986 No. No. A034359Published

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Holding. The court held that causes of action for emotional distress do not constitute an 'injury to person' under Code of Civil Procedure section 395 for venue purposes, and that the trial court must transfer the action to the county designated by the defendant when venue is improper.

Issues

Whether causes of action for emotional distress constitute an 'injury to person' for the purpose of establishing venue under Code of Civil Procedure section 395.
Whether a trial court must transfer an action to the county designated by the defendant when venue is improper and no stipulation exists.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is settled, however, that actions sounding in tort (severe humiliation, anguish, emotional distress and trauma) are not encompassed within the limited statutory language of section 395 so as to justify grounding venue on them.”

“Section 398 expressly provides that when an action commenced in the wrong court is ordered transferred for that reason, it must be transferred to the proper court as stipulated by the parties.”

Opinion

NEWSOM, J. This timely (Code Civ. Proc., § 400)1 petition seeks review of an order denying petitioners’ motion for change of venue from Alameda [624]County to San Diego County. As will be seen, we agree that venue in Alameda is improper, and issue our writ accordingly. The background relevant to our discussion follows.

Real party in interest, Steven A. Warren, had been employed by United States Elevator since 1972. In April of 1985, however, he was terminated— wrongfully, according to the allegations of his complaint. Petitioners, Cubic Corporation, United States Elevator Corporation, Edward F. Helsley and D. Gary Ryans, are the defendants in Warren’s action below, which seeks damages in causes of action alleging breach of contract, wrongful termination, intentional infliction of emotional distress, and conspiracy.

Helsley is joined as an individual defendant with the corporate defendants in the third and fourth causes of action for emotional distress and conspiracy; Ryans is joined only in the conspiracy cause of action. Notably, the individual defendants are not joined in the contract causes of action against the corporate defendants. Helsley moved below to change venue to San Diego County, relying on section 395. As relevant here, that section provides: “(a) Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the county in which the defendants or some of them reside at the commencement of the action is the proper county for the trial of the action. If the action is for injury to person or personal property . . . either the county where the injury occurs ... or the county in which the defendants, or some of them reside at the commencement of the action, shall be a proper county for the trial of the action.”

The other defendants, including Ryans, did not object to the motion— indeed, they joined in it.2 The motion for change of venue was denied; this petition followed.

Petitioners do not dispute that venue is proper in Alameda County as to all causes of action involving the corporate defendants (§ 395.5). They argue here, as they did below, that because individual defendants are not parties to the contract causes of action, venue as to the entire proceeding is governed by section 395. (J.C. Millett Co. v. Latchford-Marble Glass (1956) 144 Cal.App.2d 838, 840 [301 P.2d 914]; Mosby v. Superior Court (1974) 43 Cal.App.3d 219, 226 [117 Cal.Rptr. 588].) And, when applied to the causes of action here, that section mandates venue in San Diego

Cubic Corp. v. Superior Court

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