County of San Bernardino v. Superior Court

• Decision Date: 22 November 1994
• Docket Number: No. E014088,E014088
• Citation: County of San Bernardino v. Superior Court, 35 Cal.Rptr.2d 760, 30 Cal.App.4th 378 (Cal. App. 1994)
• Court: California Court of Appeals
• Parties: COUNTY OF SAN BERNARDINO, Petitioner, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent. REDEVELOPMENT AGENCY OF the CITY OF ADELANTO, et al., Real Parties in Interest.

Page 760

35 Cal.Rptr.2d 760

30 Cal.App.4th 378

COUNTY OF SAN BERNARDINO, Petitioner, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent REDEVELOPMENT AGENCY OF the CITY OF ADELANTO, et al., Real Parties in Interest.

No. E014088.

Court of Appeal, Fourth District, Division 2, California.

Nov. 22, 1994.

[30 Cal.App.4th 380] Alan K. Marks, County Counsel and Paul F. Mordy, Deputy County Counsel, for petitioner.

No appearance for respondent.

Christopher G. Norman, Costa Mesa, R. Zaiden Corrado, City of Industry, and David J. Olivas, Los Angeles, for real parties in interest.

OPINION

DABNEY, Associate Justice.

In this matter we are asked to join those unfortunate few of our colleagues who have been compelled to parse a statute which the mildest court has called "complicated" and the most forthright has accurately described as a "mass of cumbersome phraseology"--section 394 of the Code of Civil Procedure. ¹ (Cf. Colusa Air Pollution Control Dist. v. Superior Court (1991) 226 Cal.App.3d 880, 889, 277 Cal.Rptr. 110; Fitzpatrick v. County of Sonoma (1929) 97 Cal.App. 588, 590, 276 P. 113.) ² We conclude that the first operative clause of the statute operates as a removal clause. As a result, we find that petitioner the County of San Bernardino improperly attempted to lay venue in Riverside County, and that the trial court correctly granted the motion to change venue made on the basis of wrong court by real parties the City of Adelanto, et al. ³

BACKGROUND

This action is one of several lawsuits arising out of Adelanto's efforts to gain some measure of control over the real property comprising George Air Force Base, after the federal authorities relinquish the property upon the closure of the military facility. However, in this case the issue is indirect; the County is suing to prevent Adelanto's expenditure of redevelopment funds in pursuit of the George Air Force Base property. County's theory is that Adelanto's use of the funds for this purpose is unlawful and, by delaying the satisfaction of legitimate redevelopment obligations, will also delay the accrual of County's right to enjoy the incremental increase in tax revenues attributable to property within the redevelopment zone. ⁴

Adelanto is located within San Bernardino County. County originally brought this action in the superior court of Riverside County. Adelanto then filed its motion for change of venue, seeking a change to Los Angeles County. It asserted that County should have filed in San Bernardino County, but sought a change of venue to Los Angeles County because related actions directly challenging Adelanto's efforts to acquire George Air Force Base had either been brought there or had been transferred there. ⁵

At the hearing, the trial court opined that "I don't think I have any authority to transfer the case to Los Angeles. But I do have the authority to send it back to San Bernardino. So under the appropriate law they can sendit wherever they'd like." This was the court's order, and this petition followed. We issued the alternative writ and set the matter for hearing. ⁶ (Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, 23 Cal.Rptr.2d 397, 859 P.2d 96.)

DISCUSSION

Stripped down to intelligibility (more or less) (see fn. 1), section 394 includes several distinct provisions relating to venue in actions in which a county, city, city and county, or local agency is either a plaintiff or defendant. ⁷ In the following redaction, we designate the relevant provisions as Clauses One, Two, and Three.

"[Clause One] An action or proceeding against a ... city ... may be tried in ... the county in which such city ... is situated, unless such action or proceeding is brought by a county ... in which case it may be tried in any county ... not a party thereto and in which the city ... is not situated. [Clause Two] Whenever an action or proceeding is brought by a county ... against a resident of another county ... the action or proceeding must be, on motion of either party, transferred for trial to a county ... other than the plaintiff ... and other than that in which the defendant resides, or is doing business, or is situated. [Clause Three] Whenever an action or proceeding is brought against a ... city, in any county ... other than that in which the defendant is situated, the action or proceeding must be, on motion of the said defendant, transferred for trial to a county ... other than that in which the plaintiff resides ... and other than the plaintiff county ... and other than the ... county in which such defendant city ... is situated ..." ⁸ With these provisions in mind, we turn to the primary authorities cited by the parties. We briefly describe these cases before turning to our own analysis.

In County of Riverside v. Superior Court (1968) 69 Cal.2d 828, 73 Cal.Rptr. 386, 447 P.2d 626, a private plaintiff sued the County of Riverside in the superior court of San Diego County. Under Clause Three, above, this choice of venue was arguably reasonable, because venue in Riverside County would have been subject to mandatory change on motion. ⁹ However, the Supreme Court treated the case as a Clause One matter (see fn. 5, quoting Clause One as the "pertinent" part of the statute), and held that under the usual venue rules (§§ 392, 393) venue was only proper in Riverside County, and that "section 394 is a removal statute which applies only when an action has been brought and is pending in a proper court." (Id., at pp. 830-831, 73 Cal.Rptr. 386, 447 P.2d 626.) Thus, when the trial court "granted" Riverside's motion for change of venue by transferring the action to San Mateo County, rather than to Riverside County as prayed, it erred, because Riverside was entitled to demand a transfer to the "proper court" under section 396b. Because Clause one provides that an action against a public entity may be tried in the county of its residence, there is no bar to such venue and it is preferred. ¹⁰

First, we note that County of Riverside states that section 394 "is a removal statute," and holds that it does not control original venue. Such an approach had been taken in earlier cases such as Fitzpatrick v. County of Sonoma, supra, 97 Cal.App. 588, 276 p. 113, which held that the statute "affects only those cases properly brought in other counties ... giving the option to the defendant county to have its cause tried away from the county of the residence of the plaintiff ... But those cases brought in other counties must, as a primary basis, be jurisdictionally [sic] properly within those counties." (97 Cal.App. at p. 594, 276 p. 113; emphasis added.) Second, although the comment in County of Riverside is broad enough to cover the entire section, concededly neither that case nor any of those upon which it relies for its statement that section 394 is only a removal statute involved an action with public entities on both sides. For example, Fitzpatrick v. County of Sonoma involved a private plaintiff and public defendant; the court held that the plaintiff was not entitled to choose any county she liked, but that the defendant county was entitled to demand original venue in a county which would be proper under the usual rules applicable to all defendants. (See also Skidmore v. County of Solano (1954) 128 Cal.App.2d 391, 394, 275 P.2d 613, and San Jose Ice & Cold Storage Co. v. City of San Jose (1937) 19 Cal.App.2d 62, 66, 65 P.2d 1324, both dealing with the same general alignment and character of parties.)

Following these cases, it has been generally accepted that section 394 "provides for removal of a case which is pending in a proper county. It is therefore not a venue statute." (Colusa Air Pollution Control Dist., supra, 226 Cal.App.3d at p. 889, 277 Cal.Rptr. 110.) However, Colusa Air too, like County of Riverside and Fitzpatrick, involved suit by a private plaintiff and thus did not implicate the language which we must construe here.

The next significant case is City of Alameda v. Superior Court (1974) 42 Cal.App.3d 312, 116 Cal.Rptr. 806, in which the City of Oakland sued the City of Alameda. City of Alameda is therefore indisputably a Clause One case, as is the case at bar. However, in that case the plaintiff city sued the defendant city in Alameda County, in which both parties were situated. The holding of the case was simply that (under Clause One), transfer to a neutral county was mandatory upon application. (42 Cal.App.3d at p. 316, 116 Cal.Rptr. 806.) Unlike this case, in City of Alameda venue was presumptively correct to begin with, being laid in the county of defendant city's "residence"; thus, the court had no cause to consider whether the plaintiff had had other options for laying venue.

Finally, in Westinghouse Electric Corp. v. Superior Court (1976) 17 Cal.3d 259, 131 Cal.Rptr. 231, 551 P.2d 847, the court dealt with the reverse of the County of Riverside situation. In Westinghouse, a plaintiff public agency sued private defendants. It was therefore a Clause Two case. Although Westinghouse was complicated by several factors not present here--for example, the fact that the plaintiff agency operated within several counties (and a city and county)--the court had no difficulty applying Clause Two in favor of the defendant, a nonresident of the venue county in which the plaintiff operated, by recognizing the defendant's right to change venue to a neutral county.

Because it was specifically concerned only with Clause Two, Westinghouse is not directly applicable. However, it contains dicta upon which the County here relies in favor of its election to commence proceedings in a neutral county. In a general discussion refuting one of the plaintiff's arguments, the court remarked that "[Clause One] specifies that an action pitting any agency, regional or single-county, against another governmental entity may not even be brought in the home county of the local agency." (17 Cal.3d at pp. 267-268, 131...