A Post-Answer Motion to Change Venue Can Still Be Timely

Walt Disney Parks & Resorts, U.S., Inc. v. Superior Court, No. B284261 (D2d7 Mar. 26, 2018)

Plaintiffs sued the Mouse for some ticketing practices at Disneyland. But they sued in LA, not OC. So after a failed attempt at removal, Disney moved to transfer venue to OC Superior because the LA venue was improper. The trial court denied the motion as untimely, and Disney took a writ.

California procedure being what it is, there are two different statutes that appear to authorize a motion to transfer when there isn’t proper venue in the country which plaintiff filed―Code of Civil Procedure §§ 396b and 397. 

Section 396b gives superior courts the power to try a case, even if that court is an improper venue, so long as it has subject matter jurisdiction. But that authority arises only if the defendant has not filed a motion to transfer by the time an answer is due. If, however, a motion is filed, the court is required to order the case transferred to an appropriate court.

Section 397, on the other hand, just lists various grounds for which superior courts have discretion to grant a motion to transfer the venue of an action. One of those grounds―in § 397(a)―is that the filing court is not a proper venue. Section 397 does not set out any a time limit to bring a motion, although the cases have imposed a reasonableness rule.

Here, Disney brought its motion under the auspices of both statutes after it answered. The trial court held that by failing to move within the time limit in § 396b, Disney affirmatively waived any right to contest venue, including though a motion under § 397(a). But as the Court of Appeal explains, that’s not right, in two respects.

First, failing to file a pre-answer motion under § 396b is not a waiver of any challenge to venue. No doubt, when Disney answered, the court obtained the authority to try the case, notwithstanding its alleged lack of venue. But nothing in the structure of the statute treats the vesting of that authority as an automatic waiver of the defendant’s ability to argue that venue is improper. An old Supreme Court case―Lyons v. Brunswick-Balke-Collender Co. 20 Cal. 2d 579, 582 (1945)―essentially says so much. (Also, although not referenced in the opinion, § 396b(d) gives the court the discretion to keep the case “if an answer is filed” if it is in the interest of justice and convenient to the witnesses. Logically, that doesn’t square with the time limit being a categorical bar to transfer if the time to answer has run.)

Second, and similarly, there’s no reason why the timing provisions of § 396b need to apply to a § 397(a) motion. Since § 396b doesn’t create a strict waiver rule anyway, there’s nothing inconsistent about § 397(a)’s lack of a hard and fast time limit.

So based on these rules, Plaintiff would need to show a true waiver as a matter of fact. Or that Disney unreasonably delayed in bringing its motion. But neither of those theories had any support in the record. 

Writ granted.