Opinion
Rehearing Denied June 20, 1968.
For Opinion on Hearing, see 73 Cal.Rptr. 386, 447 P.2d 626. Ray T. Sullivan, Jr., County Counsel, Riverside County, and Tilden L. Brooks, Deputy County Counsel, for petitioner.
Swing, Scharnikow, Lewis & Kroll, San Diego, for real parties in interest.
OPINION
WHELAN, Associate Justice.
The County of Riverside (petitioner) seeks writs of prohibition and of mandate directed to the Superior Court of San Diego County (respondent) compelling respondent to set aside a temporary restraining order and order to show cause made February 7, 1968, in action #304646 brought in respondent court by Desert Outdoor Advertising, Inc. (Desert), the real party in interest, against petitioner, compelling respondent to set aside a minute order of February 19, 1968 ordering the transfer of the action to the Superior Court of San Mateo County; and compelling respondent to make its order transferring said cause to Riverside County. All references hereafter are to action #304646 unless otherwise specified.
The action was commenced by filing the complaint on January 9, 1968. In addition to petitioner, defendants were numerous officers of the County of Riverside and several municipal and justice courts of judicial districts situated within Riverside County. The purpose of the action was to enjoin the execution of a certain ordinance of the County of Riverside regulating the use of display advertising signs in the construction and maintenance of which Desert is engaged.
On January 9, a temporary restraining order against enforcement of the ordinance was obtained with an order to show cause why a preliminary injunction should not issue, returnable on January 22. Service of summons and of the order to show cause was effected on January 10.
On January 19, a memorandum was filed by defendants in opposition to the granting of a preliminary injunction. It contained a statement of much factual matter and of points of law and was supported by a declaration of the assistant director of the Riverside County Planning Commission made under penalty of perjury and by copies of numerous orders and other papers in earlier actions filed by Desert in other courts.
The hearing on the order to show cause was held on January 22 and the application for preliminary injunction denied without prejudice. The petitioner here and the other defendants were represented by petitioner's present counsel.
The memorandum filed by defendants in opposition to the application for temporary injunction contained this language:
'The individual defendants named in the complaint are alleged to be, and are in fact admitted to be, officers of the County of Riverside or persons especially appointed to execute official duties and the complaint is against their official acts. In accordance with Section 393 of the Code of Civil Procedure the action must be tried in Riverside County. On January 26, 1968, the defendants filed a demurrer and a notice of motion for an order that the action be transferred to the Superior Court of Riverside County.
The notice of motion recited:
'Should the motion be denied on the primary ground of defendants residence and venue as provided in C.C.P. 393 hereinafter set forth, the County of Riverside will, pursuant to C.C.P. 394, for itself, move the court at that time for an order transferring the venue of said action as to the County of Riverside to the Superior Court of the State of California for the County of San Bernardino. 'Said motion will be made upon the grounds that the proper place for trial for an action against public officers or persons especially appointed to execute their duties for an act done by them in virtue of their office or against a person who by his command or in his aid does anything touching the duties of such officers is the county in which the cause or some part thereof arose, which is Riverside County as provided in Section 393 of the California Code of Civil Procedure, and on the further ground that all defendants are residents of Riverside County * * *.'
The motion was set for hearing on February 14 at 1:45 p. m.
A written dismissal without prejudice as to all defendants other than petitioner was filed on February 14 or 10:55 a. m. On the same date Desert obtained the order to show cause and temporary restraining order, the vacation of which is one of the objectives of the present proceeding.
Petitioner's motion for an order transferring the action from San Diego County was heard on February 19. The minute order made on that date reads:
'Def'ts motion for change of venue is granted. This matter to be transferred to San Mateo County pursuant to C.C.P. § 394. * * * to be continued in effect until such time as * * * San Mateo court considers the application for preliminary injunction.'
There had been filed in opposition to the motion for an order transferring the action a declaration containing statements from which the trial court might have found that Desert was doing business in Riverside, San Bernardino, Imperial, Orange, San Diego and Los Angeles counties.
The theory on which petitioner seeks a writ ordering a transfer of the action to Riverside County is that petitioner is a resident of Riverside County; that as such it is entitled, under sections 395 and 396b, to have the venue changed to the county of its residence, that being the proper county for trial of the action under section 395; that under section 393(b) also Riverside was the proper county for trial of the action; that section 394 was inapplicable because Desert arbitrarily chose an improper forum in which to commence the action.
Leaving aside the questions whether petitioner's motion for change of venue was based exclusively upon section 394, and whether petitioner waived its right to a change of place of trial, there are two questions to be answered:
1. Does section 395, Code of Civil Procedure, impose a venue of residence rule in cases governed by the removal provisions of section 394 and in cases where section 394 prescribes the county in which an action shall be tried?
2. Is action #304646 governed by the removal provisions of section 394? Secondary to that question, is the action of a type that is required to be commenced within a certain county?
DOES SECTION 395 IMPOSE A VENUE OF RESIDENCE RULE IN CASES THAT COMES WITHIN THE In dealing with the problem, it is necessary to determine the meaning of the first sentence of section 395, which is as follows:
'(1) In all other cases, except as in this section otherwise provided, 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.'
To what does 'all other cases' refer? What cases are excluded by use of the words 'all other cases?'
The 'all other cases' is not intended to be limited by the following words, 'except as in this section otherwise provided.' Rather, it is meant to exclude cases to which the provisions of the preceding code sections apply.
If the cases to which the provisions of section 394 apply are among those excluded by the opening sentence of section 395, then section 395 does not declare a residence venue rule for commencement of actions against a city or county in such cases.
Both sections 394 and 395 were enacted as code sections in 1872. As originally enacted, section 394 provided in part:
'Actions against counties may be commenced and tried in any county in the Judicial District in which such county is situated, unless such actions are between counties, in which case they may be commenced and tried in any county not a party thereto.'
As originally enacted, section 395 started off as it does now with the words: 'In all other cases * * *.'
The question whether the residence venue provisions of section 395 impose a rule as to the proper county in which to commence an action against a county or city is linked with the question whether section 395, where its provisions conflict with those of section 394, is controlling over the latter.
Section 395 is at variance with section 394 as to the proper county for trial in an action for damages resulting from negligence if the negligence is charged against a city or county. In Channell v. Superior Court, 226 Cal.App.2d 246, 38 Cal.Rptr. 13, section 395 was held to govern where an individual as well as a county is charged with negligence. We think it clear, however, that if only a city or county were defendant, section 394 would dictate the place for trial of such an action; nor can it be said that that inevitably would be the county in which the injury occurs, thus making it consistent with section 395, since either a city or a county may perform negligent acts outside the county of its situs.
The first sentence of section 394 also would exclude, in an action on contract against a city or county brought by another city or county, the county of situs of both plaintiff and defendant even though the contract may have been entered into and was to be performed in the county of the defendant's theoretical residence.
We conclude that section 395 does not impose a venue of residence rule in those circumstances enumerated in section 394 requiring removal where only a county is a defendant.
IS THE ACTION GOVERNED BY THE REMOVAL PROVISIONS OF SECTION 394?
In answering that question, it is necessary to consider whether section 394 prescribes a rule as to the proper county for commencing an action against a city or county; and whether any of the antecedent code sections prescribe a certain county for the commencement of an action of the kind with which we are dealing.
Neither section 394 nor any of the antecedent sections specifically declares the proper or necessary county for the commencement of any kind of action. Section 394 declares specifically the proper county for trial only of an action against a city or The cause of action alleged against petitioner is not one of a specific class for which by reason of its nature the venue is expressly declared by the provisions of Title 4 of Part 2 of the Code of Civil Procedure.
It is petitioner's contention that the removal provisions of section 394 no not apply to action #304646 because the action was not commenced in the proper county.
It is said in Fitzpatrick v. Sonoma County, 97 Cal.App. 588, 594, 276 P. 113, that section 394 of the Code of Civil Procedure affects only those cases properly brought in other counties.
Fitzpatrick v. Sonoma was an action to recover damages for injury to real property commenced in a county other than that in which the real property was situated, which, under section 392, Code of Civil Procedure, was the proper county for the trial of such an action, subject to the provisions of section 394.
The proper county for commencement of an action as the county in which an action is required to be tried, subject to the power of the court to change the place of trial under sections 392, 393, 394 and 395 of the Code of Civil Procedure. (Cook v. Pendergast, 61 Cal. 72, 78.)
When, therefore, in San Jose I. & C. Storage Co. v. City of San Jose, 19 Cal.App.2d 62, 64 P.2d 1099, 65 P.2d 1324, it is said that sections 392, 393, 395 and 396 'cover the matter of the place where the causes mentioned therein may be commenced' [italics added], it means that the proper county for trial of an action is also the proper county for commencement of the action.
When the same opinion suggests that section 394 does not declare the proper county for trial of an action, and consequently for commencement of an action, it goes counter to something stated elsewhere in the same opinion, the fact that section 394 declares what is the proper county for trial of an action claiming damages for injury to person or property allegedly resulting from negligence of a city or county.
The opinion in San Jose I. & C. Storage Co. v. City of San Jose, supra, 19 Cal.App.2d 62, 64 P.2d 1099, 65 P.2d 1324, also overlooked subdivision (2) of section 394, added in 1933, as follows:
'(2) Any court in a county hereinabove designated as a proper county, which has juridiction of the subject matter of the action or proceeding, is a proper court for the trial thereof.'
The exact meaning and full scope of that language may be difficult to ascertain. Indeed, the structure of section 394 has been the subject of judicial stricture before now. (See Fitzpatrick v. Sonoma County, supra, 97 Cal.App. 588, 276 P. 113.)
The ambiguity consists in this: It has been said that the words 'proper county' for the trial of an action, as used in the sections other than section 394, mean also 'proper county' for the commencement of the action. (Cook v. Pendergast [1882], supra, 61 Cal. 72.)
Although the paragraph speaks of 'the county 'hereinabove designated as a proper county,'' the words 'proper county' do not appear elsewhere in the section. The question arises as to what counties thereinabove mentioned the words 'proper county' are intended to apply.
It is hardly to be believed that the enacting Legislature intended by paragraph (2) to say in effect a proper county for the trial of an action is a proper county for the trial of such action.
The paragraph may mean no more than that an action commenced in the superior court, because there is in the county no municipal court, may be ordered transferred to such a lower court in the county to which the action is removed if there is The words 'proper county' in the quoted paragraph may refer to any county as a proper county for trial to which an action might be removed under the provisions of section 394 because of the existence of any of the conditions that under said section make removal mandatory.
But if it was meant to say that the county to which an action might be removed under section 394 was a proper county for the trial of the action, it cannot mean that any such county would have been a proper county for commencement of the action, for that would make any neutral county a proper one for commencement of an action. That such is not the law was held in Fitzpatrick v. Sonoma County, supra, 97 Cal.App. 588, 276 P. 113.
It is Desert's contention that under Code of Civil Procedure, section 394, an action is properly brought in a county other than defendant county if the plaintiff does business in that county. In support thereof, they quote from Skidmore v. County of Solano, 128 Cal.App.2d 391, 395, 275 P.2d 613, 616, the following language:
'In Mono Power Co. v. City of Los Angeles, 33 Cal.App. 675, 166 P. 387, and in Finance & Construction Co. [of California] v. City of Sacramento, 204 Cal. 491, 269 P. 167, removal to a neutral county was had upon motion of the defendant, pursuant to the third sentence of section 394, in an action which had been brought and was pending in a proper county which was the county in which the plaintiff was doing business.'
We cannot to the quoted language the interpretation ascribed by Desert. Whether any county in which a corporation is doing business is a proper county for the commencement of an action by the corporation was not involved in either Mono Power Co. v. City of Los Angeles, 33 Cal.App. 675, 166 P. 387, or Finance & Construction Co. of California v. City of Sacramento, 204 Cal. 491, 269 P. 167. In each of those cases the action was commenced in the county where the real property involved was situated, which incidentally was a county where the plaintiff corporation was doing business.
If the words 'proper county' in subdivision (2) of section 394 are interpreted to refer to the county from which the action is transferred, then the words can be given the same meaning as in the other sections in which they are used in declaring what is the proper county for trial subject to the removal provision: such county is the proper county also for commencement of the action.
However, unless that meaning be given to subdivision (2) of section 394, there is no code section preceding section 395 that declares the proper county for trial of a transitory action against a city or county so as to fix the proper county for commencement of the action, except for the negligence actions mentioned in section 394 and actions for the recovery of a fine or forfeiture under section 393(1)(a), Code of Civil Procedure.
In that even, unless section 395 declares the proper county for place of trial, there is no definition anywhere as to the proper county for commencement of such an action.
It is, however, unreasonable to say that the cases to which section 394 applies lie outside the field of action of section 395, and then to say that one looks to section 395 to determine to what cases section 394 properly applies.
The result is that in commencing an action in a county from which it is removable under the provisions of section 394, the only restraints as to choice of county are those imposed by section 394 itself and its preceding sections.
There is language in Fitzpatrick v. Sonoma County, supra, 97 Cal.App. 588, 596, 276 P. 113, 117, to suggest that the sections pertaining to venue other than section 394 'Concluding that the provisions of section 394, Code of Civil Procedure, do not apply as we find the record in this case, it is necessary to consider the other sections pertaining to venue * * *'
Section 394 applies to an action brought in a non-neutral county, not to an action brought in a neutral county. (City of Oakland v. Darbee, 102 Cal.App.2d 493, 497, 227 P.2d 909.)
Section 394 does not apply in every case in which the action is one brought in a county that would have been the proper county for the trial except for the provisions of section 394. Thus in City of Stockton v. Wilson, 79 Cal.App. 422, 249 P. 835, an action in eminent domain was brought in the county in which the real property was situated, which was neither the county in which the plaintiff city had its situs nor that of the defendants' residence. Under the literal language of the second sentence of the section, the plaintiff city would have been entitled to a removal to another neutral county; that right was denied since the action already was pending in a neutral county that was a proper place for trial.
On the other hand, an action brought in a county that, because of the location therein of real property with which the action was concerned, would have been a proper county for trial except for the provisions of section 394, should be removed from that county if a plaintiff corporation is doing business in that county. (Finance & Construction Co. of California v. City of Sacramento, supra, 204 Cal. 491, 269 P. 167; Mono Power Co. v. City of Los Angeles, supra, 33 Cal.App. 675, 166 P. 387.)
In claiming that the Superior Court of San Diego County was an improper forum arbitrarily chosen by Desert, petitioner cites Channell v. Superior Court, supra, 226 Cal.App.2d 246, 38 Cal.Rptr. 13; Skidmore v. County of Solano, supra, 128 Cal.App.2d 391, 275 P.2d 613; Fitzpatrick v. Sonoma County, supra, 97 Cal.App. 588, 276 P. 113.
Skidmore v. County of Solano, supra, 128 Cal.App.2d 391, 275 P.2d 613, and Fitzpatrick v. Sonoma County, supra, 97 Cal.App. 588, 276 P. 113, both deal with a claim by a plaintiff that the action should not be removed to a court in the defendant county. In neither case was the plaintiff a corporation doing business in the county in which the action was brought or a resident therein; accordingly in neither case did facts exist requiring that the change of place of trial be to a neutral county under section 394; in neither case did it appear that the action had been brought in a proper county for trial under any of the provisions of the code; in each case facts as to residence of the defendants and as to the nature of the cause of action made the court in the defendant county the proper one for trial of the action in view of the non-applicability of section 394; in each case the county in which the action was brought was a neutral county.
Channell v. Superior Court, supra, 226 Cal.App.2d 246, 38 Cal.Rptr. 13, seems little apropos. It held that notwithstanding the provisions of section 394, Code of Civil Procedure, Sacramento County was a proper county for trial of an action brought in Sacramento County against the County of Placer and an individual resident in Sacramento County based upon alleged negligence of the defendants as the cause of an automobile accident that occurred in Placer County. The holding was based upon the fact of the individual defendant's residence in Sacramento County. Here, there was no defendant other than petitioner when its motion was heard.
No case has been brought to our attention or found by us in which removal to a neutral county under section 394 was denied in an action against a city or county commenced in a county other than the situs of the defendant by a corporation doing business in the county where the action was commenced. We conclude that if the facts exist that make it mandatory under section 394 to order removal of an action from the county in which it was commenced to a neutral county, the court does not look to section 395 to ascertain whether the action was commenced in the proper county.
Conceding, therefore, that petitioner might obtain a change of venue to Riverside County under sections 395 and 396b upon the ground that it resides within its own physical boundaries, it could do so only if none of the conditions for removal declared by section 394 were found to exist.
There was evidence from which the respondent court could find that Desert is doing business in San Diego County. We are required to accept the trial court's determination in that regard. (Braunstein v. Superior Court, 225 Cal.App.2d 691, 696, 37 Cal.Rptr. 666; Wathen v. Superior Court, 212 Cal.App.2d 125, 130, 27 Cal.Rptr. 840.)
Since, therefore, section 394 furnishes the rule for the removal of the cause from San Diego County, removal should not be to the County of Riverside, not only because that is the county of respondent's residence, but also because it is a county in which Desert is doing business, and because the action is not one based upon a claim of damage caused by negligence; nor should removal be to any of the other counties, including San Bernardino, in which Desert is doing business.
THE APPLICABILITY OF SECTION 393(1)(b) NO LONGER AN ISSUE
It has not been questioned that the dismissal of the action as to the individual defendants eliminated the objection that under section 393(1)(b), Code of Civil Procedure, San Diego County was not the proper county for commencement and trial of the action.
Prendergast v. Mitchell-Silliman Co., 65 Cal.App. 456, 224 P. 243, supports that view; where the action of dismissing is done by the court, as in Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209, the rule is different. (Cf. Remington S. M. Co. v. Cole, 62 Cal. 311.)
THERE IS NO STIPULATION IN THE RECORD THAT VENUE BE CHANGED TO SAN MATEO COUNTY
Desert filed a written verified statement of facts accompanied by its memorandum of points and authorities in opposition to the petition for writ of mandate and prohibition. The verified statement contains the following:
'On February 19, 1968, at said hearing, the County of Riverside failed to make any objection whatsoever to the transfer of the action to San Mateo County. After granting said County's request for transfer under C.C.P. 394, said Court asked of Defendant County if it had any objection to San Mateo County, and said Defendant stated by and through its attorney, Tilden Brooks, that it had no objection to said transfer.'
The minute order does not, however, reflect a formal stipulation to that effect.
QUESTION OF WAIVER
If petitioner were entitled to a change of venue on the ground of its residence in Riverside County, a question might arise whether it had waived the right to such change, since it submitted for determination by the San Diego court questions of law and fact in opposing the application for preliminary injunction, even though, in doing so, it also asserted the rights of the individual defendants to change of venue under section 393(1)(b), Code of Civil Procedure.
There is no waiver, of course, in the mere filing of a motion for affirmative relief at the time of making application for change of venue, if the latter is granted without action upon the other motion. (Bloom v. Oroville-Wyandotte Irr. Dist., 34 Cal.App.2d 102, 93 P.2d 164.) Nor does the arguing of a demurrer after Estep v. Budger Mfg. Co.,
The action of contesting the application for preliminary injunction would not have amounted to a waiver of the right to removal under section 394. The motion for removal under section 394 need be made only within a reasonable time. (Adams v. Superior Court, 226 Cal.App.2d 365, 38 Cal.Rptr. 164; City of Oakland v. Darbee, supra, 102 Cal.App.2d 493, 227 P.2d 909.) The question of waiver, therefore, is not an issue.
RIGHT OF THE COURT TO ISSUE A TEMPORARY RESTRAINING ORDER
It is urged that in making a temporary restraining order the court performed no judicial function. We do not agree that the making of such an order is perfunctor; it calls for the exercise of discretion.
The respondent court lacked authority to issue, pending the hearing of petitioner's motion for removal from San Diego County, a temporary restraining order made a part of an order to show cause for the issuance of a preliminary injunction. (Beard v. Superior Court, 39 Cal.App.2d 284, 102 P.2d 1087.) The order to show cause without the restraining feature was no more than a notice of motion and involved no exercise of judicial discretion; to set it aside would be an idle act. The portion of it purporing to restrain petitioner pending the hearing should be vacated.
The petition to prohibit execution of the order transferring action #304646 to San Mateo County and to command that the action be transferred to Riverside County is denied; the temporary restraining order is ordered to be vacated.
GERALD BROWN, P. J., and COUGHLIN, J., concur.