Location Still Matters

Rycz v. Superior Court, No. A163741 (D1d5 July 28, 2022)

This case arises out of the pretty awful death of a college student who, while incredibly drunk, staggered out onto the 5 freeway near USD, where she was hit by two cars. All the relevant events happened in San Diego County. Almost all of the witnesses are in San Diego County. But Plaintiff sued in San Fransisco because a significant defendant—Uber—is headquartered there. 

Nobody claims that San Francisco isn’t a proper venue. It is, under Code of Civil Procedure § 395. But several of the defendants moved for transfer under § 397(c), which permits a change of venue “[w]hen the convenience of the witnesses and the ends of justice would be promoted by the change.” The trial court denied the motion, reasoning that, given the new rules that liberally allow for remote testimony, § 367.75, Cal. R. Ct. 3.672, the location of the witnesses no longer mattered. A Defendant took a writ.

As the Court of Appeal explains, the new rules for remote appearances, which, without further legislative action, expire in 2023, don’t implicitly repeal the right to transfer a case to where it is convenient for most of the witnesses. Even under the new rules, remote testimony at a jury trial isn’t a given. It’s within the discretion of the trial court. And while § 367.75 reflects a legislative determination that remote testimony can sometimes be adequate, it does not suggest that it will be adequate all the time. So the motion should have been granted.

Writ granted.

Service, Schmerice

Aquino v. Superior Court, No. A162836 (D1d5 Dec. 23, 2021)

This writ case addresses a pretty wacky venue question. Plaintiff was in three traffic accidents in three different counties but claimed not to know which accident caused her injuries so she sued all the defendants in Alameda County Superior in a single case. The Oakland defendant settled out of the case. The remaining defendants then challenged the basis for Alameda venue going forward. None of that matters, however, because the Court of Appeal finds defendants filed their writ petition four days two late.

Review of venue motions is governed by Code of Civil Procedure § 400. It permits the losing party to take a statutory writ, which must be filed “with 20 days after service of a written notice of the order.” § 400. Here, the clerk mailed the minute order to the parties, and attached a declaration of service by mail indicating that the “forgoing document” was mailed first class on May 12, 2021. So—adding five days under § 1013(a) for mail service—the § 400 period would have run on Sunday, June 6, which then shifts to June 7, the next available court day. The petition was filed on June 12, so it was too late.

Petitioners take issue with the service and argue it was inadequate to start the § 400 clock. 

First, they argue that the clerk’s declaration of service didn’t comply with § 1013a(4). But their complaints are addressed directly by the statute.
Section 1013a(4) requires a court clerk’s proof of mail service to establish that show that “the envelope was sealed and deposited in the mail with the postage thereon fully prepaid” as well as the date of deposit in the mail. Petitioners argue that the language of the declaration suggested that the clerk may not have personally deposited the envelope in the mail. But § 1013a(4) doesn’t require that. Indeed, it specifically says that this form of proof is sufficient when “the clerk or deputy clerk signing the certificate places the document for collection and mailing on the date shown thereon, so as to cause it to be mailed in an envelope so sealed and so addressed on that date following standard court practices.” § 1013a(4).

Next, they argue that the postmark was not made until the following day, suggesting the proof was invalid because declaration was false. But § 1013a(4) addresses that too. It says that if the postmark is more than a day after the attested date of deposit, the court can find service deemed to have occurred on the date of the postmark. Here, the postmark was on the following day, so the rule for later service didn’t apply.

Petitioners also expressed their belief that the clerk did not actually put the document in the mail on the date on the proof.  Mail sent from the courthouse in Hayward was taking five or more days to be delivered to Walnut Creek. But there wasn’t support for that in the record and the Petitioners don’t account for mail delays during the COVID-19 pandemic. (I would note here that mail has been taking 5-7 days to travel the 8 or so blocks between the courthouse whose address is this blog’s eponym to my office on 5th and Flower, FWIW.) The Court does remark that “it may be prudent for all lower courts to scrutinize the language they use in proofs of service from time to time.”

Finally, Petitioners also argue that service from the clerk can never start the § 400 clock. Their argument is based on § 1019.5, which requires the prevailing party on a motion to give and file notice of the ruling unless notice is waived on the record. Since Plaintiff never gave notice, say Petitioners, the clock never started. The Court doesn’t buy it, however. Under § 400, the 20 days starts on “service of a written notice of the order[.]” Plaintiff’s arguable violation of § 1019.5 does not negate the fact that Petitioners were provided with “service of a written notice of the order,” when they received the mailing from the clerk. The Court notes that the purpose of § 400 and related time limits on other statutory writs is best served if the period runs from written notice by either the clerk or the parties and that cases decided under other statutes have so held.

Petition dismissed.

Jury Trial Waiver Kills Contractual Forum Selection

Handoush v. Lease Finance Group, LLC, No. A150863 (D1d3 Oct. 31, 2019)

The right to civil jury trial in California is kind of a big deal. In this case, the Court of Appeal holds that California courts won’t enforce a venue selection provision in a contract that also contains a jury trial waiver that the selected venue would uphold. 

Read about it in full in the piece I wrote for Kirkland with my partner David Klein.

Say Hello to Indiana

Ryze Claim Solutions LLC v. Superior Court, No. A155842 (D1d3 Apr. 3, 2019)

Plaintiff’s employment agreement has a forum selection for various state and federal courts in Indiana, where Employer is located. Plaintiff nonetheless sued—for violations of FEHA—in Contra Costa County Superior. The trial court denied Employer’s motion to stay in favor of the Indiana forum, finding that FEHA’s venue provision and Labor Code § 925—which renders certain selections of non-California for a unenforceable in certain employment disputes—made the clause unenforceable.

After issuing a Palma notice, the Court here grants a writ. The FEHA venue provisions address venue, not forum. They just say where within California a plaintiff needs to bring his or her claims. As to § 925, it facially applies only to contracts entered after January 1, 2017. Plaintiff’s contract was entered in 2014, so § 925 doesn’t apply. 

Writ granted.

The State Has No Home Court

Gamestop v. Superior Court, No. E068701 (D4d2 Aug. 22, 2018)

The Riverside and Shasta County DAs sued a secondhand video game Store in Riverside Superior Court for violating the Unfair Competition Law. They claim that the Store’s conduct was “unlawful” under the UCL because the Store violated the Secondhand Dealers’ Law, which regulates pawn shops and other resellers of personal property to prevent them from being used to fence stolen goods. 

Store moved to change venue under Code of Civil Procedure § 394(a), which permits a foreign corporate defendant to transfer an action to a neutral county when sued by a city, county, or local agency. But according to the Court of Appeal, the problem with that argument is that the UCL permits a DA to bring a UCL action on behalf of “the People of the State of California.” Thus, even if the DA’s authority is limited to prosecuting UCL violations in his or her home county—a question that is currently pending before the California Supreme Court—the State of California is nonetheless the plaintiff, so § 394(a) doesn’t facially apply.

Writ denied.

Procedural Perfection Is a Lot to Expect

Laboratory Specialists Int'l, Inc. v. Shimadzu Sci. Indus., No. G054056 (D4d3 Nov. 21, 2017)
 
The contract in this commercial dispute selected Maryland law and a county in Maryland for venue. Defendant first demurred on forum nonconveniens, and after the court noted that was improper, it filed a proper motion to dismiss or stay under Code of Civil Procedure § 410.30. The court granted the motion, and Plaintiff appeals.

Plaintiff mostly lays its appeal on a technical argument that Defendant forfeited its chance to raise forum non by raising the issue in a demurrer. It points to § 418.10(e)(3), which says you forfeit the right to raise FNC if you don’t make a motion “at the time of filing a demurrer.” But Defendant did, in fact, raise the convenience of the forum at the time it filed a demurrer, so there’s no forfeiture. The fact that it did so in the demurrer—instead of a separate motion filed at the same time—is sufficiently substantial compliance to avoid a forfeiture. That’s the case even though forum non is not an appropriate grounds to demur. It was well within the trial court’s discretion to treat the request in the demurrer as a separate request to stay or dismiss under § 410.30.

So far as the merits of the motion go, the court finds that the forum clause was mandatory and that it covered the claims filed by Plaintiff. Which means the only question is whether enforcing the clause is unfair or unreasonable. Which it wasn’t. Finally, Plaintiff claims that the trial court erred by dismissing the action instead of just staying it. But Plaintiff didn’t make that complaint to the trial court, so the Court of Appeal declines to reach it.

Affirmed.

No Presumptions of Convenience for Foreign Plaintiffs

Fox Factory, Inc. v. Superior Court, No. H043648 (D6 Apr. 27, 2017)

Plaintiff is a Canadian who was hurt in a mountain biking accident in British Columbia. He filed two lawsuits over his accident. In one, filed in Santa Clara County, he sued a bunch of U.S. manufacturers if the components of his bike, including Fox, a California company that made the forks. The other case was filed in Canada and brought against a Canadian bike shop and a bunch of John Does, who appear to be the companies sued in the California action. 

Transferred Venue Resets Anti-SLAPP Clock

Karnazes v. Ares, No. B246308 (D2d2 Jan. 27, 2016)

The relevant part of this case action involves a pro per suing her opponent’s attorney for acting on behalf of her client. As to those claims, an anti-SLAPP motion was brought and granted. Plaintiff now appeals. She raises five grounds, which the court dispenses with in a short opinion.

Too Clever a Joinder

David v. Medtronic, No. B254914 (D2d8, as modified Jun. 26, 2015)
 
It’s my practice not to comment on cases where Kirkland & Ellis represents a party. So I’ll just note that this is an interesting opinion regarding what happens when a nominal defendant is joined for the purpose of keeping forum stuck in California state court. And say congrats to my colleagues . . . .

Employer: Texas Venue Same as Calfironia (Yeah, that's the Ticket ...)

Verdugo v. Alliantgroup, L.P. No. G049139 (D4d3 as modified June 25, 2015)

Plaintiff, a Californian, is suing her Texas-headquartered employer. Plaintiff’s employment contract has a Texas choice of law and lays venue in Austin. But Plaintiff’s wage-and-hour claims arise from California statutes that can’t be waived. Under the circumstances, the usual presumption—that a court will enforce a contractual choice of venue—gets reversed. The venue provision will only be enforced if the moving party can show that the contractual venue will not diminish Plaintiff’s unwaivable statutory rights in any way.

In assessing whether Defendant met its burden, the court of appeal here pauses to part company with Hall, v. Superior Court, 150 Cal. App. 3d 411, 416 (1983) and America Online, Inc. v. Superior Court, 90 Cal. App. 4th 1, 11 (2001), which hold that the analysis does not entail a comparison between California law and the substantive law of the contractual state. Even given, however, that a moving party can meet its burden by showing that the contractual forum would definitely apply California law or identical standards under its own state law, Defendant didn’t satisfy that burden here. The most it would say was that a Texas court would probably apply California law. But Defendant also “carefully preserved its ability to argue to a Texas court that it should apply Texas law,” and even “hinted at its intention to do so by seeking to downplay the significance of the statutory rights [plaintiff] seeks to enforce through this action.” Moreover, Defendant did not establish that substantive Texas law affords statutory rights identical to the California Labor Code provisions on which plaintiff’s suit is based.

Reversed.

Redwood City Express...

Cholakian & Assocs. v. Superior Court, No. C076759 (D3 Apr. 29, 2015) 
 
This is a bad faith denial of insurance and legal malpractice case against the former defendant’s insurer and two law firms, stemming from a big liability verdict in an auto accident case. It was filed in Sacto Superior—the same venue as the underlying trial. The insurers demurred, one firm answered, and the other moved to transfer venue to San Mateo County under Code of Civil Procedure § 396b(a). On the venue motion, the trial court found that venue was generally improper in the Sac, because no defendant resided there. But because some defendants had answered, it found that, under § 396b(d), the convenience of witness was an overriding factor and thus denied the motion. The law firm took a writ.