Channell v. Superior Court of Sacramento County

• Citation: 38 Cal.Rptr. 13,226 Cal.App.2d 246
• Court: California Court of Appeals
• Decision Date: 09 April 1964
• Parties: Douglas F. CHANNELL and Fred A. Klock, Petitioners, v. SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Patrick A. MILLER and County of Placer, Real Parties in Interest. Civ. 10813.

Page 13

38 Cal.Rptr. 13

226 Cal.App.2d 246

Douglas F. CHANNELL and Fred A. Klock, Petitioners, v. SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent Patrick A. MILLER and County of Placer, Real Parties in Interest.

Civ. 10813.

District Court of Appeal, Third District, California.

April 9, 1964.

Allan B. O'Connor, Sacramento, for petitioners.

Edward T. McCarty, John J. Hannegan, Sacramento, for real parties in interest.

SCHOTTKY, Justice.

This is a petition for a writ of mandate ordering the Superior Court of Sacramento County to try the action brought by petitioners, Channell and Klock, against Patrick A. Miller and the County of Placer to recover damages for personal injuries and property damage suffered in an automobile accident.

While driving together on March 17, 1963, in Placer County, petitioners were involved in an automobile accident with Miller, a resident of Sacramento County. Petitioners filed suit in the Superior Court of Sacramento County to recover for personal injuries and property damage. The suit against the County of Placer was based on negligent maintenance of a stop sign. Counts one and three of petitioners' complaint stated causes of action against Miller and the County of Placer combined.

The County of Placer filed a timely notice of motion to change venue from the County of Sacramento to the County of Placer. The County of Placer was relying on section 394 of the Code of Civil Procedure, which provides in part: '[A]ny action or proceeding against a * * * county * * * for injury occurring therein, to person or property or person and property caused by the negligence or alleged negligence of such * * * county * * * or its agents or employees, shall be tried in such county * * *.' Petitioners filed a memorandum in opposition to the motion. Petitioners relied on section 395 of the Code of Civil Procedure which provides for venue in the county of residence of any defendant when two or more defendants are joined in one action. The court ordered the action transferred to Placer County for trial.

Petitioners contend that venue is proper in Sacramento County and that the trial court erred in ordering the action transferred to Placer County.

Because of the joinder of Miller and Placer County there is an apparent conflict in venue provisions. This problem is pointed out in 1 Chadbourn, Grossman &amp Van Alstyne, California Pleading, section 375, page 324, wherein it is said: '* * * In view of the modern liberal rules governing joinder of causes and parties, it frequently is possible for a plaintiff to join together in a single complaint two or more causes of action, each of which is governed by a different venue rule, or to name as defendants two or more parties each of whom is susceptible to a different venue standard. Cases of this type are here classed generically as 'mixed actions.' The identifying characteristic of mixed actions is that two or more inconsistent venue provisions of the Code of Civil Procedure or of the Constitution appear to be concurrently applicable in the same case.' And in Monogram Co. v. Kingsley, 38 Cal.2d 28, at page 31, 237 P.2d 265, at page 267, the court said: 'By reason of the liberal statutory joinder rules, a number of causes of action may properly be joined in the same complaint, Code Civ.Proc. sec. 427, and it is not necessary that each defendant be included in every cause of action. Code Civ.Proc. sec. 379b. As so noted, these joinder provisions must be correlated with the venue provisions--the former prescribing what causes and parties a single action may include and the latter prescribing where such action as an entirety may be tried.'

As stated in Monogram Co. v. Kingsley, supra, 38 Cal.2d at pages 29 and 30, 237 P.2d at page 266:

'[I]n the absence of specified exceptional cases not here involved (Code Civ.Proc. secs. 392, 393, 394), 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.' (Code Civ.Proc. sec. 395.) Consistent therewith, the basic principles governing the determination of the venue issue were recently stated in the case of Independent Iron Works v. American President Lines [Ltd.], 35 Cal.2d 858, at page 860, 221 P.2d 939, at page 941: 'A defendant is not entitled to have an action removed to the county of his residence unless it appears that none of the other defendants are residents of the county where the action is brought. Donohoe v. Wooster, 163 Cal. 114, 124 P. 730. Even when all of the defendants join in a demand for or consent to a change of venue the cause will be retained if the complaint attempts in apparent good faith to state a cause of action against a defendant who resides in the county where the action was commenced. McClung v. Watt, 190 Cal. 155, 211 P. 17. When a defendant who resides in the county in which an action is brought is a necessary and proper party defendant it is immaterial that another and the principal defendant resides in another county. Hellman v. Logan, 148 Cal. 58, 82 P. 848.' * * *'

The question that we must decide in the case at bench is whether or not the general rule that the venue of a mixed action is in the county of any defendant's residence is altered by the exceptional venue provision of section 394 of the Code of Civil Procedure hereinbefore set forth.

The precise question has not been decided in California. It was before the court in Newman v. County of Sonoma, 56 Cal.2d 625, 15 Cal.Rptr. 914, 364 P.2d 850, but the court felt that it was unnecessary to determine the issue because the county had waived any right to which it might have been entitled by failing to make the motion for change of venue within a reasonable time. The court said at pages 626-628 of 56 Cal.2d, page 915 of 15 Cal.Rptr., page 851 of 364 P.2d:

'The first question presented is whether section 394 affects jurisdiction in the fundamental sense, that is, whether only the Superior Court of Sonoma County and no other court has the power to try the action. Except in a few cases in which the Constitution makes the place of trial jurisdictional (see art. VI, § 5) or a statute makes a local place of trial part of the grant of subject matter jurisdiction, venue is not jurisdictional. See 1 Witkin, California Procedure, pp. 699, 719. Section 394 is not the statute granting subject matter jurisdiction in this type of case and does not purport to specify the place of trial as part of such a grant. The authority to sue counties is set forth in the Government Code, without any limitation as to the place of the suit. Gov.Code, § 23004, subd. (a). The Legislature, instead of including the provision before us as part of the authorization in the Government Code, placed it in the Code of Civil Procedure among several venue provisions which are clearly not jurisdictional. See Herd v. Tuohy, 133 Cal. 55, 59-60, 65 P. 139. It should also be noted that section 394 provides that upon stipulation of the parties actions referred to in the section may be tried in any county.

'* * *

'It is clear, therefore, that section 394 is not jurisdictional in the fundamental sense, but the county contends that the statute is nevertheless mandatory and that the trial court erred in denying the motion for a change of venue. In this connection we need not consider what the proper relationship between section 16 of article XII of the Constitution and section 394 of the Code of Civil Procedure would be in a situation where both provisions are injected into the case by a joinder of defendants and remain operative until a motion for a change of venue is made under the statute. Even if it be assumed that the constitutional provision precluded application of section 394 at the outset of the action, the county could have resorted to the statute as of the time of the settlement agreement between plaintiffs and the railroad company. In view of the extent to which the county, after learning of the agreement, participated in the proceedings and delayed in making its motion, the trial court was entitled to determine that the county did not act within a reasonable time. * * *'

The case of Smith v. Smith, 88 Cal. 572, 26 P. 356, dealt with the exceptional venue provision of section 392 of the Code of Civil Procedure, concerning an action involving real property. The action was to declare a conveyance, absolute upon its face, a mortgage, compel a reconveyance of the real and personal property included therein, and for an accounting and personal judgment thereon, and the Supreme Court held that the defendant was entitled to have the action transferred to the county of his residence. The court said at pages 576-578 of 88 Cal., page 358 of 26 P.:

'When, however, the subject-matter of the action is local, and the judgment which is sought is to operate directly upon that subject-matter, it is provided that the action shall be tried in the county where the subject-matter of the action is situated. This being an exception to the general rule, the conditions under which the exception is claimed must be clearly and distinctly shown. The plaintiff cannot, by uniting in his complaint matters which form the subject of a personal action with matters which form the subject of a local action, compel the defendant to have both those matters tried in a county other than that in which he resides. It is only when real estate alone is the subject-matter of the action that the provisions of section 392 can be invoked against a defendant who resides in a county different from that in which the land is situated. If, in his complaint, the plaintiff join with such a cause of action another which is not embraced in its provisions, or if he also seeks a remedy against the defendant upon matters which are not embraced within the provisions of this section, his action becomes one of those 'other cases' provided for in section 395, which the defendant is entitled to have tried in the county of his...