Dow Agrosciences LLC v. Superior Court of Alameda Cnty.

224 Cal. Rptr. 3d 761, 16 Cal. App. 5th 1067
CourtCalifornia Court of Appeal, 5th District
DecidedNovember 6, 2017
DocketA150854
StatusPublished
Cited by7 cases

This text of 224 Cal. Rptr. 3d 761 (Dow Agrosciences LLC v. Superior Court of Alameda Cnty.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dow Agrosciences LLC v. Superior Court of Alameda Cnty., 224 Cal. Rptr. 3d 761, 16 Cal. App. 5th 1067 (Cal. Ct. App. 2017).

Opinion

RUVOLO, P.J.

*1071I. INTRODUCTION

This writ proceeding arises out of a dispute about the proper venue for trial of a cause of action for violating the California Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249.5 et seq. (Proposition 65 or the Act).

Center for Environmental Health (CEH) filed a complaint in Alameda County alleging that Dow Agrosciences LLC (Dow) and other unnamed defendants are violating the Act by failing to warn individuals who live or work in the Kern County town of Shafter that a soil fumigant manufactured by Dow contains a chemical known to cause cancer. Dow responded to the complaint by filing a motion to transfer this case to Kern County, where the cause of action arose, pursuant to section 393, subdivision (a) of the Code of Civil Procedure ( section 393(a).)1 The trial court denied *763the motion, finding *1072that venue is proper in any county under section 395, subdivision (a) (section 395(a)) because Dow is a nonresident defendant with no principal place of business in California.

Dow seeks extraordinary relief from the trial court order. "Pursuant to section 400, a party aggrieved by an order granting or denying a motion to change venue may petition for a writ of mandate requiring trial of the case in the proper court. [Citation.]" ( Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836, 96 Cal.Rptr.3d 607 ( Fontaine ).) We conclude that section 393(a) establishes that the proper court for trial of this case is in Kern County. Therefore, we grant the petition for writ of mandate.2

II. OVERVIEW OF PERTINENT VENUE RULES

"It is well established that a defendant is entitled to have an action tried in the county of his or her residence unless the action falls within some exception to the general venue rule. [Citations.]" ( Brown v. Superior Court (1984) 37 Cal.3d 477, 483, 208 Cal.Rptr. 724, 691 P.2d 272 ( Brown ); Fontaine , supra , 175 Cal.App.4th at p. 837, 96 Cal.Rptr.3d 607 ; see also Massae v. Superior Court (Massae ) (1981) 118 Cal.App.3d 527, 531, 173 Cal.Rptr. 527 [" 'policy of the law favors the right of trial at the defendant's residence' "].)

This general rule is codified in the first sentence of section 395(a), which states: "Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action."

Section 395(a) also contains exceptions to the general venue rule. For example, actions for personal injury or injury to personal property resulting from the defendant's negligence may be filed in the county where the injury occurred, or in the county where the defendant resides. (§ 395(a).) Another provision in section 395(a), which CEH relies on in the present case, states: "If none of the defendants reside in the state or if they reside in the state and the county where they reside is unknown to the plaintiff, the action may be tried in the superior court in any county that the plaintiff may designate in his or her complaint ...."

While section 395(a) qualifies the general venue rule by establishing additional alternative venues for adjudicating certain types of actions or for *1073filing suit against certain types of defendants, some other statutory exceptions identify a different court than the defendant's county of residence as the only proper venue for trial of a case. The most commonly used exception of this type is codified in section 392, subdivision (a) (section 392(a)).

Section 392(a) provides that "[s]ubject to the power of the court to transfer actions and proceedings," the proper county for trial of an action to adjudicate rights or interests in or injuries to real property is the county "where the real property that is the subject of the action, or some part thereof, is situated." Cases governed by section 392(a) are often characterized as "local" in nature and distinguished from cases seeking personal or "transitory" relief, *764which are typically governed by the general venue rule that a case should be tried in the county where the defendants or some of them reside at the time the action is commenced. ( 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 788 ; see also Foundation Engineers, Inc. v. Superior Court (1993) 19 Cal.App.4th 104, 108, 111-112, 23 Cal.Rptr.2d 469 ( Foundation Engineers ); see, e.g., Massae , supra , 118 Cal.App.3d 527, 173 Cal.Rptr. 527.)3

Section 393(a), the exception relied on by Dow in the present case, also designates a court other than the superior court in the defendant's county of residence as the proper place of trial, providing in part: "Subject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the cause, or some part of the cause, arose, is the proper county for the trial of the following actions: [¶] (a) For the recovery of a penalty or forfeiture imposed by statute, except, that when it is imposed for an offense committed on a lake, river, or other stream of water, situated in two or more counties, the action may be tried in any county bordering on the lake, river, or stream, and opposite to the place where the offense was committed."

With these pertinent rules in mind, we turn to the venue dispute in the present case.4

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Cite This Page — Counsel Stack

Bluebook (online)
224 Cal. Rptr. 3d 761, 16 Cal. App. 5th 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dow-agrosciences-llc-v-superior-court-of-alameda-cnty-calctapp5d-2017.