Harris v. Alcoholic Beverage Control Appeals Bd.

• Decision Date: 11 December 1961
• Citation: 18 Cal.Rptr. 151,197 Cal.App.2d 759
• Court: California Court of Appeals Court of Appeals
• Parties: Malcolm E. HARRIS, Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent and Appellant. Civ. 19736.

Page 151

18 Cal.Rptr. 151

197 Cal.App.2d 759

Malcolm E. HARRIS, Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent and Appellant.

Civ. 19736.

District Court of Appeal, First District, Division 1, California.

Dec. 11, 1961.

Hearing Denied Feb. 7, 1962.

Charles P. Just, Chief Counsel, Alcoholic Beverage Control Appeals Bd., Sacramento, for appellant.

Stanley Mosk, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., for respondent.

SULLIVAN, Justice.

The Alcoholic Beverage Control Appeals Board, hereinafter referred to as appeals board, appeals from an order of the Superior Court of the City and County of San Francisco denying its motion for a change of venue from the City and County of San Francisco to the County of Sacramento, made and entered in a proceeding for a writ of prohibition or in the alternative a writ of mandate commenced by Malcolm E. Harris, Director of the Department of Alcoholic Beverage Control. The prevailing party below, who is the respondent here, will be referred to as the department.

We are presented with the question whether in this proceeding between a department of the state government represented by the Attorney General and a state agency represented by its own counsel, section 401 of the Code of Civil Procedure applies so as to prescribe proper venue in the City and County of San Francisco. We conclude that it does and that the order of the trial court should be affirmed.

We set forth the background of the controversy as disclosed by the allegations of the department's petition: On June 17, 1959, Willie Ward and Beatrice Ward applied to the Department of Alcoholic Beverage Control for an on-sale beer license for premises in Port Chicago, Contra Costa County. The matter came on for hearing before a hearing officer of the department who recommended that the application be denied. On December 17, 1959, the department formally adopted the decision of the hearing officer. On January 27, 1960, the Wards filed an appeal with the appeals board, appellant herein. On January 29, 1960, the department filed a motion with the appeals board to dismiss the appeal on the ground that it was not timely filed, which motion was denied on April 8, 1960.

The department filed its petition for a writ of prohibition and/or a writ of mandate against the appeals board and the Wards in the Superior Court for the City and County of San Francisco on May 20, 1960, and obtained issuance of an alternative writ of prohibition against the appeals board alone. Thereafter the appeals board moved for a change of venue to the County of Sacramento which motion was denied on July 13, 1960. The Wards made no motion for change of venue and did not join in the motion of the appeals board.

Appellant contends here that: (1) section 401 of the Code of Civil Procedure is not applicable; (2) even if it were applicable, subdivision (2) of section 401 would require a transfer of the proceedings to Sacramento County, and (3) since section 401 is in fact not applicable, venue must be prescribed in Sacramento County under sections 393 and 395 of the Code of Civil Procedure.

We note preliminarily that the appeal herein was taken before the 1961 amendments to the Code of Civil Procedure covering review of an order granting or denying a motion to change place of trial, adding section 400 and making a corresponding revision in section 963 of said code. Applying the statute as it read at the time of this appeal it is of course well settled that the order denying appellant's motion for a change of venue is an appealable order. (Code Civ.Proc. § 963, subd. 2, as last amended by Stats.1951, ch. 234, § 1; DeVall v. Security-First Nat. Bank, 121 Cal.App.2d 682, 263 P.2d 910; 3 Witkin, Cal.Proc., p. 2164.)

Subdivision (1) of section 401 of the Code of Civil Procedure is applicable.

The provisions of the Code of Civil Procedure governing the place of trial of civil actions apply generally to proceedings for writ of review, mandate and prohibition. Section 1109 of the Code of Civil Procedure found in Title 1 of Part III of said Code which title deals with such writs, provides '[e]xcept as otherwise provided in this Title' that the provisions of Part II of the code which includes sections 392-401 appertaining to the place of trial of civil actions 'are applicable to and constitute the rules of practice' in respect to writs of review, mandate and prohibition. We therefore proceed to examine the basic venue rules.

Subdivision (1) of section 401 of the Code of Civil Procedure provides: 'Whenever it is provided by any law of this State that an action or proceeding against the State or a department, institution, board, commission, bureau, officer or other agency thereof shall or may be commenced in, tried in, or removed to the County of Sacramento, the same may be commenced and tried in any city or city and county of this State in which the Attorney General has an office.' (Emphasis added.)

The foregoing section, added to the code in 1947, attempts to achieve a convenience for litigants, by, in effect, establishing three places of trial, i. e., the City and County of San Francisco, the Counties of Los Angeles and Sacramento--instead of one--the County of Sacramento--not only in actions against the state and its agencies (subdivision 1) but also in actions by the state and its agencies (subdivision 2). (1 Witkin, Cal.Proc., pp. 715 et seq.; 37 Cal.L.Rev., p. 102; Report of State Bar Committee on Administration of Justice, 1945-46, 21 State Bar J., pp. 166, 180.)

Appellant contends that subdivision 1 of the section is inapplicable here because (a) there is no statute specifically naming Sacramento as the county in which the appeals board shall or may be sued, and (b) subdivision 1 was not intended to apply where the defendant state agency is not being represented by the Attorney General.

We turn to the first contention. It is the duty of the courts within the framework of the statutes passed by the Legislature, to interpret the statutes so as to make them workable and reasonable. (Burns v. Massachusetts etc. Ins. Co., 62 Cal.App.2d 962, 971, 146 P.2d 24; 45 Cal.Jur.2d 615.) Apparently no case has construed the opening words of the statute--'Whenever it is provided by any law of this State * * *' The parties have not referred us to, nor has our research disclosed, any such decision.

Appellant's interpretation that these words mean a statute specifically naming Sacramento as the county for the commencement or trial of an action or proceeding would result in a very narrow and limited operation of the statute and substantially affect its workability. According to the above report of the State Bar Committee recommending the adoption of the present section 401 (21 State Bar J., pp. 166, 180) the section by offering additional forums in San Francisco and Los Angeles would promote the convenience of, and eliminate financial hardship for, litigants who would otherwise have to commence and try their cases in Sacramento County and at the same time effect a decentralization of business in the public interest. Our attention has been called to relatively few statutes which specifically name Sacramento County for venue purposes. We are at a loss to understand how appellant arrives at the conclusion that there are many such statutes (appellant cites very few in its briefs) and accordingly we do not feel called upon to explore all the statutory field, a task which should be appellant's. ¹

Appellant relies upon Duval v. Contractors State License Board, 125 Cal.App.2d 532, 271 P.2d 194 in support of its contention that subdivision (1) of section 401 applies only when a statute names Sacramento County for venue purposes. We do not agree. In Duval, appellant, a contractor with his principal place of business in San Bernardino County, sought a writ of mandate there to review the revocation of his license. The court reversed an order changing place of trial to Los Angeles County on the basis the venue was prescribed in San Bernardino under subdivision (1)(b) of section 393 of the Code of Civil Procedure, the proceeding being against a public officer for an act done by him in virtue of his office. The court reversed on the ruling in Cecil v. Superior Court in and for Los Angeles County, 59 Cal.App.2d 793, 140 P.2d 125 to the effect that the proper venue 'is the county in which he carries on the business and in which he will be hurt by enforcement of the order' p. 799, 140 P.2d 129, in that case, San Bernardino County.

The respondent board in the Duval case contended that the proceeding fell within section 16050 of the Government Code (now § 651) which prescribed Sacramento venue in certain types of cases on written demand of the Attorney General and that therefore since the proceeding was thus triable in or removable to Sacramento County, it was by virtue of subdivision (1) of section 401 properly triable in Los Angeles County where the Attorney General maintained offices. In other words, prescribed venue in Sacramento County was a condition to the assertion of section 401 venue in Los Angeles County. The court held that the proceeding did not fall within section 16050 of the Government Code which dealt with claims against the state on express contracts and for negligence as set forth in section 16041 of the Government Code (now § 641) and hence no substitute forum in Los Angeles could be asserted under section 401. Duval did not hold that subdivision (1) of section 401 applies only where a statute names Sacramento County as the place of trial. The respondent board sought to bring its case within section 16050 because no other statute, including the general venue statutes, provided for Sacramento venue. On the contrary, as the court held, the proper venue for the proceeding was in San Bernardino County (and...