Keep It Moving: Can Defense Attorneys Use Venue Selection to Their Benefit?

Keep It Moving: Can Defense Attorneys Use Venue Selection to Their Benefit?

Introduction

Plaintiffs in civil litigation always have a unique advantage—selection of venue for initial case filing.  And in the California state court system, broad venue-selection provisions, paired with stark differences in the jury pools as between some counties, means plaintiffs’ attorneys are well positioned to capitalize on this advantage.

But in the right case, the California Code of Civil Procedure can offer tools for the sharp-eyed defense attorney to override plaintiff’s original selection of venue to their benefit.  There are essentially three ways to effect an inter-county transfer of a case: (1) when the case was initially filed in an improper county, (2) for the convenience of non-party witnesses, and (3) when a related case is pending in another county.  All of these mechanisms present widely different procedural requirements, which are discussed below in turn.

 

When the Case Was Initially Filed in An Improper County

The details of California’s choice-of-venue framework are beyond the scope of this article.  That said, upon initial receipt of a case, counsel should take a moment to carefully analyze the allegations of the complaint as to venue, to determine whether potential grounds for transfer via this method exist.

Code of Civil Procedure section 396b provides for mandatory transfer of a case that has been filed in the wrong court. Such a motion must be made at the outset of a case, in the time to file a responsive pleading.[i]  A motion to transfer on these grounds is made in the transferor court.[ii]

No default may be taken against a party that has filed a motion to transfer while the motion is pending.[iii]  On such a motion it is the moving defendant’s burden to present declarations to establish why the filing court was improper.[iv]  The motion is granted when the defendant negates the grounds for a venue in the county of filing by the plaintiff.[v]

A situation can arise when a plaintiff selects a venue under Code of Civil Procedure section 395, subdivision (a), which allows an action to be filed in the county in which the defendant resides. Importantly, under this provision, in a multiple defendant case, the action can be filed in a county where any defendant resides.[vi]  This creates a potential for a plaintiff to name a “sham” defendant—a defendant against which the plaintiff does not intend to actually prevail, but rather was named solely to permit filing in that defendant’s county of residence.

California caselaw is thin on a defendant’s ability to overcome this tactic, but at least one older case exists, Minyard v. Superior Court.[vii]  In Minyard, the plaintiff, Holt, filed a complaint in the City & County of San Francisco, alleging she had been injured when the taxicab in which she was riding collided with a pickup truck in the City of Napa, located in Napa County.[viii]  She named as defendants Yellow Cab Company, Minyard, Titmus, and Langer.[ix]  She alleged Yellow Cab Company, Minyard, and Titmus owned and operated the taxi in which she was riding, and that Langer owned and operated the pickup truck.[x]  Langer moved to change venue to Napa County, and the trial court denied his motion.[xi]  The court of appeal then granted a writ of mandate and ultimately held the motion should have been granted.[xii]

Minyard based its decision on the uncontested evidence which was presented with the motion.  This evidence established the accident occurred in Napa County; Minyard was the owner of the taxi; his employee, Titmus, was driving it at the time of the accident; Langer was the owner and driver of the pickup truck; and Minyard, Titmus, and Langer were residents of Napa County.[xiii]  The evidence further established that, while the corporate defendant Yellow Cab Company was a resident of San Francisco, Minyard had been operating his own separate business called “Yellow Cab Co.” in the City of Napa.[xiv]  The motion was also supported by an affidavit from an officer of Yellow Cab Company, stating it did not own the taxi involved in the accident.

Thus, as Minyard explained, “[w]ithout the inclusion of Yellow Cab Company, a corporation, as a defendant there could not possibly be any question that Langer had a clear right to the requested change of venue.”[xv]  The trial court had, however, concluded because the face of the complaint alleged that Yellow Cab Company was responsible for the accident, it was bound to treat venue in San Francisco as proper.[xvi]

Minyard held this was error.  Rather, as Code of Civil Procedure section 395 provides, “if any person is improperly joined as a defendant, …his residence must not be considered in determining the proper place for trial of the action.”[xvii]  Minyard explained how this applies in two situations, both when a complaint fails to state a cause of action against a defendant, and “where the nonresident moving party concedes that a cause of action is formally alleged against the resident defendant but claims that the cause of action, in reality, does not exist.”[xviii]  As the uncontroverted evidence before the court established that the sole defendant creating venue in San Francisco had been improperly sued, Minyard concluded that the matter should have been transferred.[xix]  Minyard itself followed two older cases, Karst v. Seller, and Lachman Co. v. Central Cal. Berry Growers’ Assn.[xx], in reaching its conclusion.  Minyard does not appear to have ever been cited a subsequent case, and no known case appears to contradict its conclusion or approach. It thus remains mandatory, binding authority.[xxi]  Accordingly, in a “sham” defendant situation, if available at the first outset of a case, defense counsel should consider obtaining appropriate supporting declarations to argue under Minyard the “sham” defendant should not be considered for venue purposes.

Additionally, Code of Civil Procedure section 397, subdivision (a), also provides for discretionary transfer of a case filed in the wrong county.  The important difference of this mechanism—besides its discretionary instead of mandatory nature—is that it may be filed at any reasonable time, unaffected by the strict timing requirements of Code of Civil Procedure section 396b.[xxii]  Transfer under this statute may therefore be viable when later factual development establishes grounds to attack a “sham” defendant.

 

For the Convenience of Non-Party Witnesses

Code of Civil Procedure section 397, subdivision (c), together with Code of Civil Procedure section 396b, subdivision (d), also provides for discretionary transfer for “the convenience of witnesses and the ends of justice would be promoted by the change.”[xxiii]  A motion to transfer on these grounds is made in the transferor court.[xxiv]

There is a critical limitation on transfer on these grounds, however: the parties’ conveniences are not considered—even if they are to testify.[xxv]  Similarly, the convenience of counsel[xxvi], expert witnesses[xxvii], and employees of parties are not considered[xxviii].  Note, however, this limitation does not apply when the employee is being called to testify by the opposing party.[xxix]

An important procedural consideration on a motion for transfer for convenience of witnesses is it must be made within a “reasonable” time after all defendants have answered; note therefore in a multi-defendant case it is necessary to wait for all defendants to resolve any potential pre-answer law and motion and answer.[xxx]  What constitutes a “reasonable” time depends on the facts of each case.[xxxi]

Accordingly, when defense counsel believes there is a potential for transfer on these grounds, they should endeavor to identify and make contact with potentially cooperative non-party witnesses.  The goal is to obtain declarations from these witnesses to support a motion to transfer.  Please note these supporting declarations are required to show (1) the names of each witness expected to testify for both parties; (2) the substance of their expected testimony; (3) whether the witness has been deposed or has given a statement regarding the facts of the case (and if so, the date of the deposition or statement); (4) the reasons why it would be “inconvenient” for the witnesses to appear locally; and (5) the reasons why the “ends of justice” would be promoted by transfer to a different county.[xxxii]  The declarations in support of the motion to transfer must contain admissible evidence; a change of venue cannot be based on declarations consisting of hearsay and conclusions.[xxxiii]  Accordingly, a motion should not be supported by a declaration by counsel alone—rather, declarations from the witnesses themselves should be obtained.

 

When a Related Case Is Pending in Another County

On some occasions, a case will be filed when a related case is already pending in another county.  There is a critical gateway question for transfer on these grounds: whether one or both of the cases has been designated as “complex” under the criteria given by California Rules of Court rule 3.400.  The transfer of complex cases is governed by Code of Civil Procedure section 404, and the transfer of non-complex cases is governed by Code of Civil Procedure section 403.

Inter-county transfer of complex cases under Code of Civil Procedure section 404 is a cumbersome procedure, and results in the formation of a Judicial Council Coordinated Proceeding.  This procedure is initiated by a petition for coordination submitted to the Chairperson of the Judicial Council and will ultimately result in the assignment of all related cases to specific judge in a specific county, referred to as the Coordination Trial Judge.  Further discussion of the procedural intricacies of initiating a Judicial Council Coordinated Proceeding is beyond the scope of this article.

A significantly more streamlined procedure, however, exists for the transfer of related non-complex cases under Code of Civil Procedure 403.  A motion for transfer under this statute is made before the transferee judge. The standard for transfer and coordination pursuant to Section 403 is given by Code of Civil Procedure section 404.1, which provides:

Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.[xxxiv]

Procedurally, before bringing a motion to transfer on these grounds, a party is required to make a “good-faith effort” to obtain the agreement of all parties to the proposed transfer and coordination and notify all parties of an obligation to disclose to the court any information they have concerning any other motions requesting transfer of any case that would be affected by the motion.[xxxv]  When filing such a motion, in addition to being filed to be ruled upon by the transferee court, must be served on all parties to each action, and on the transferor court.[xxxvi]  Additionally, the motion must be supported by a declaration establishing (1) the cases involved meet the criteria for coordination set forth in the statute, (2) the cases are non-complex, (3) the moving party complied with the meet-and-confer requirement discussed above, and (4) the moving party provided the notification regarding other potentially related cases discussed above.

There is a third scenario, not clearly contemplated by the Code of Civil Procedure—whether a non-complex case be transferred for coordination with a complex case.  Tyson & Mendes attorneys have successfully argued this is indeed possible.

The relevant portion of Code of Civil Procedure section 403 reads:

A judge may, on motion, transfer an action or actions from another court to that judge’s court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action.[xxxvii]

Most notably, the word “actions” is pluralized in Code of Civil Procedure section 403.  On a plain reading, therefore, Section 403 could potentially permit the transfer of a non-complex case for coordination with a complex case.  There appears to be no published decision by any California court addressing the construction of Code of Civil Procedure section 403.

Arguing from general rules of statutory construction, Tyson & Mendes attorneys have successfully argued the choice of the legislature to pluralize the word “actions” in Code of Civil Procedure section 403 means the statute can be to be used to transfer a non-complex case for coordination with a complex case. Thus, a defendant may be able to transfer a non-complex case for coordination with a complex case while avoiding the cumbersome procedures involving the Judicial Council under Code of Civil Procedure section 404.  With careful analysis of the specific factual and procedural circumstances of a case, defense counsel may be able to neutralize plaintiff’s inherent advantage of initial choice of venue, and effect transfer of case to a more favorable county.

 

 

 

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[i] Code Civ. Proc., § 396b.

[ii] Ibid.

[iii] Code Civ. Proc., § 585.

[iv] Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.

[v] Karson Indus., Inc. v. Superior Court (1969) 273 Cal.App.2d 7, 8–9.

[vi] Ibid.

[vii] Minyard v. Superior Court (1967) 248 Cal.App.2d 633.

[viii] Id. at p. 634.

[ix] Ibid.

[x] Ibid.

[xi] Id. at p. 634.

[xii] Id. at pp. 633–634.

[xiii] Id. at p. 634.

[xiv] Ibid.

[xv] Ibid.

[xvi] Ibid.

[xvii] Ibid.

[xviii] Id. at pp. 635–636.

[xix] Id. at pp. 637–638.

[xx] Karst v. Seller (1920) 45 Cal.App. 623, and Lachman Co. v. Central Cal. Berry Growers’ Assn. (1922) 58 Cal.App. 748.

[xxi] Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.

[xxii] Walt Disney Parks & Resorts U.S., Inc. v. Superior Court (2018) 21 Cal.App.5th 872, 879–880.

[xxiii] Code Civ. Proc., §§ 396b, 397.

[xxiv] Id.

[xxv] Wrin v. Ohlandt (1931) 213 Cal. 158, 160.

[xxvi] Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 920.

[xxvii] Wrin v. Ohlandt, supra, 213 Cal. at p. 160.

[xxviii] Stute v. Burinda (1981) 123 CA3d Supp. 11, 17.

[xxix] See J.C. Millett Co. v. Latchford-Marble Glass Co. (1959) 167 Cal.App.2d 218, 227.

[xxx] See Cholakian & Assocs. v. Superior Court (McDonold) (2015) 236 Cal.App.4th 361, 372.

[xxxi] See Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295.

[xxxii] Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16.

[xxxiii] Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919.

[xxxiv] Code Civ. Proc., §404.

[xxxv] Cal. Rules of Court, rule 3.500(b), (c).

[xxxvi] Code Civ. Proc., § 403.

[xxxvii] Code Civ. Proc., § 403, emphasis added.