Bechtel Corp. v. Superior Court

• Decision Date: 12 July 1973
• Docket Number: No. 1951,1951
• Citation: 109 Cal.Rptr. 138,33 Cal.App.3d 405
• Court: California Court of Appeals Court of Appeals
• Parties: BECHTEL CORPORATION, etc., Petitioners, v. SUPERIOR COURTS OF TUOLUMNE and Stanislaus Counties, Respondents; Gil Story, etc., Real Parties in Interest.

Page 138

109 Cal.Rptr. 138

33 Cal.App.3d 405

BECHTEL CORPORATION, etc., Petitioners, v. SUPERIOR COURTS OF TUOLUMNE and Stanislaus Counties, Respondents Gil Story, etc., Real Parties in Interest.

No. 1951.

Court of Appeal, Fifth District, California.

July 12, 1973.

Hearing Denied Sept. 19, 1973.

Neumiller, Beardslee, Siegert, Glahn, Shepard & Greene and Darrel Glahn, Stockton, for petitioner Bechtel Corp.

Mayall, Hurley, Knutsen, Smith & Green and Alan E. Smith, Stockton, for petitioner Soule Steel Corp.

No appearance for respondents.

Panattoni & Farrell and Leonard C. Panattoni, Sacramento, for real parties in interest.

OPINION

FRANSON, Associate Justice.

BACKGROUND

On May 7, 1969, a complaint for damages for personal injuries was filed in Stanislaus County Superior Court by Gil Story, real party in interest (hereinafter 'Story'), naming petitioners and various does as defendants. The complaint in essence alleged that Story had been injured while working on a construction site located at the Don Pedro Dam Project in Stanislaus county and that the injury was due to the negligence of the defendants. The named defendants answered the complaint denying that they were negligent and alleging affirmative defenses of contributory negligence and assumption of the risk.

A pretrial conference was held on February 5, 1971, following which a pretrial order was entered by the Stanislaus Superior Court on February 10, 1971. The pretrial order provided that on motion of the plaintiff the action was dismissed as to the fictitious defendants. Under 'AGREED FACTS' it was stated, among other things, that on May 21, 1968, Story was working as a welder in a tunnel construction on the Don Pedro Dam site when he fell from a ladder and was injured.

The pretrial order contained the following:

'VENUE: During this hearing question has arisen as to proper venue. The Don Pedro tunnel job was in Tuolumne county. Counsel will check their facts and if it is determined that the injury occurred in Tuolumne county, And there is no other basis for venue in Stanislaus county, an order and stipulation will be presented to the court for transfer to Tuolumne county.' (Emphasis added.) ¹

On April 12, 1971, a 'stipulation for change of place of trial and order thereon' was filed with the Superior Court. The stipulation was signed by the attorneys for all of the parties and provided '. . . that the place of trial of this action be changed to the Superior Court of the County of Tuolumne.'

On April 12, 1971, the court signed and filed the order attached to the stipulation, which provided as follows:

'The parties hereto having so stipulated, IT IS HEREBY ORDERED that the place of trial of the cause herein be changed from the Superior Court of the County of Stanislaus to the Superior Court of the County of Tuolumne and On payment by plaintiff of the costs and fees of such transfer . . . the clerk of this court is ordered to transfer to the clerk of the court to which this action is ordered transferred all the pleadings and papers on file herein relating to this action, . . ..' (Emphasis added.)

On October 10, 1972, petitioners noticed a motion to dismiss the action under Code of Civil Procedure section 581b ² for failure On October 26, 1972, respondent Superior Court for Stanislaus County denied petitioners' motion to dismiss. On November 8, 1972, upon late payment of the costs and transfer fees by Story, the Stanislaus County Clerk transferred the file to the Tuolumne County Clerk. On November 13, 1972, the Tuolumne County Clerk notified all parties in writing that the action had been filed in his office and given Superior Court number 13880.

of Story to pay the costs and transfer fees within one year after the entry of the order transferring the place of trial.

DISCUSSION

When an action is brought in an improper court and it is ordered transferred to a proper court, the costs and fees shall be paid by the plaintiff before the transfer is made. (Code of Civ.Proc. § 399.) If the plaintiff fails to pay the costs and fees By one year after entry of the order for transfer, the action 'must be dismissed.' (Code of Civ.Proc. § 581b) In Davis v. Superior Court, 184 Cal. 691 at 695--696, 195 P. 390 at 392 it is stated: '(T)he only duty resting upon the court and the only power it had . . . was to enter a judgment of dismissal.' (See also London v. Morrison, 99 Cal.App.2d 876, 880, 222 P.2d 941; Marshall v. Benedict, 161 Cal.App.2d 284, 326 P.2d 516; Western Greyhound v. Superior Court, 165 Cal.App.2d 216, 331 P.2d 793; South v. Wishard, 165 Cal.App.2d 8, 331 P.2d 227.)

The order for transfer was entered by the Stanislaus Superior Court on April 12, 1971. Story failed to pay the costs and fees by one year after entry of the order. Under the mandatory provisions of section 581b the Stanislaus Superior Court had no alternative but to order a dismissal of the action.

Story contends that because the order of transfer was based on the stipulation section 581b is inapplicable.

He cites in support of his contention the case of La Mirada Community Hospital v. Superior Court, 249 Cal.App.2d 39, 57 Cal.Rptr. 42. In La Mirada, plaintiff filed suit in Orange County for breach of contract against a corporation, a copartnership doing business under the same name, and individual defendants comprising the copartnership. The corporation and the individual defendants demurred and moved for change of venue to Los Angeles county. The grounds for the motion were that the copartnership and one individual defendant were residents of Los Angeles county; that the defendant corporation and defendant copartnership had their principal place of business in Los Angeles county and the contract referred to in the complaint was executed and was to be performed in Los Angeles county. After the motion for change of venue was filed, the parties stipulated that the case could be transferred to Los Angeles county. Pursuant to the stipulation, the Orange County Superior Court transferred the action to the Los Angeles Superior Court '. . . upon the payment of the proper transfer fee.' After the plaintiff failed to pay the transfer fees within one year, the defendants moved the Orange County Superior Court to dismiss the action under section 581b. The trial court denied the motion to dismiss on the basis of new affidavits filed at the hearing which showed that some of the individual defendants had resided in Orange county when the suit was filed.

Defendants sought a writ of mandate in the court of appeal and that court denied relief holding by a 2--1 decision that the order of transfer was based on the stipulation rather than the motion for change of venue because the affidavits in support of the motion failed to show that None of the individual defendants resided in Orange county at the commencement of the action. Because the order of transfer was based on the stipulation it was held not to be within the ambit of 581b. ³

To the extent that La Mirada stands for the proposition that as a matter of law an order of transfer based on a stipulation of the parties is not within the intendment of section 399 so as to bring 581b into play, we respectfully disagree with the holding. As the dissent in La Mirada points out, the fact that the order of transfer was based upon a stipulation that the action be transferred, does not eliminate the ground upon which the change of venue was sought or granted. (249 Cal.App.2d at p. 47, 57 Cal.Rptr. 42.) The motion for change of venue clearly indicated the ground upon which the parties stipulated to the transfer, i, e., that the action had been commenced in a wrong court; the majority opinion simply ignored the motion in concluding that the order of transfer was based only on the stipulation. ⁴

The holding of La Mirada unquestionably would be correct where, absent a motion for change of venue, the parties stipulate to a transfer with nothing in the record to indicate the reason for the transfer. In such a situation it cannot be said that the transfer was ordered because the action was commenced in an improper court. Conversely, if the stipulation expressly provides that the action is being transferred because it was filed in an improper court, the order of transfer, based on the stipulation, demonstrably is for the same reason and the La Mirada rationale does not apply. To hold otherwise would be to draw an untenable distinction between the order and the stipulation.

The pivotal issue in the case at hand is whether the transfer was ordered because the action was commenced in an improper court. (Code of Civ.Proc. sec. 399.) In ascertaining the reason for the transfer we must look to the record underlying the stipulation upon which the order was made. The venue provisions of the pretrial order and the reasonable inferences to be drawn therefrom ineluctably lead to the conclusion that the parties agreed to the transfer because there was no basis for venue in Stanislaus county, i.e., that Story's injury did not occur there and neither corporate defendant had its principal place of business there. ⁵ Manifestly, the order for transfer was grounded on the fact that the action had been filed in an improper court.

We also point out that the order for transfer provided 'on payment By plaintiff of the costs and fees of such transfer, . . . the clerk . . . is ordered to transfer. . . .' This language suggests the ground upon which the order was made for it is only when the action is filed in an improper court that the statute expressly mandates The plaintiff to pay the costs of transfer before the transfer can be made. (See Code of Civ.Proc. sec. 399.)

Story asserts that the order of transfer came about solely by the agreement of the parties and not by reason of the action having been filed in a wrong court because if petitioners had timely moved for a change of venue, he would have been entitled to a hearing under section 396b ⁶ as to whether...