The term venue means the court location where a case is heard. In California a defendant has the right to have any trial heard in the county of their residence, unless there is some express statutory justification for an exception such as a personal injury case where the defendant is alleged to have caused a vehicle accident in another county. If a defendant wishes to object to the venue they must file a motion for change of venue.
And because the law favors the right of trial at the defendant’s residence, any complaint filed in another county other than the county where the defendant lives will be strictly construed against a plaintiff seeking to lay the venue elsewhere.
Code of Civil Procedure Section 395(a) states in pertinent part: “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 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.”
And where several causes of action are alleged in a complaint, a motion for change of venue must be granted on all, if a defendant is entitled to change on any one cause of action.
A defendant wishing to have venue changed to the county of their residence must file a motion for change of venue at or before filing an answer or other response. Otherwise they may be deemed to have waived any objection to the venue of the case.
Code of Civil Procedure Section 396 states in pertinent part, “If an action or proceeding is commenced in or transferred to a court which has jurisdiction of the subject matter thereof as determined by the complaint or petition, and it thereafter appears from the verified pleadings, or at the trial, or hearing, that the determination of the action or proceeding, or of a cross-complaint, will necessarily involve the determination of questions not within jurisdiction of the court, in which the action or proceeding is pending, the court, whenever such lack of jurisdiction appears, must suspend all further proceedings therein and transfer the action or proceeding and certify the pleadings, and all papers and proceedings therein to a court having jurisdiction thereof which may be agreed upon by the parties, or if they do not agree, to a court having such jurisdiction which is designated by law as a proper court for the trial or determination thereof.. Upon the making of an order for transfer, proceedings shall be had as provided in Section 399 of this code, the costs and fees thereof, and of filing the case in the court to which transferred, to be paid by the party filing the pleading in which the question outside the jurisdiction of the court appears unless the court ordering the transfer shall otherwise direct”.
And if the plaintiff did in fact file in the wrong county, the defendant has the right to have the plaintiff pay all of their expenses, including court costs and attorney fees before any transfer is made. And if the fees are not paid within 30 days of service of notice of the transfer order the defendant may make a motion for dismissal of the case without prejudice.
Code of Civil Procedure Section 399 states in pertinent part, ”When the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, such costs and fees (including any expenses and attorney’s fees awarded defendant pursuant to Section 396b) shall be paid by the plaintiff before such transfer is made”.
As stated previously the right of a defendant to have any trial heard in the county of their residence is very strong and any exception to that rule will be strictly construed against a plaintiff. And if the plaintiff is represented by an attorney, the Court will order that the attorney for the plaintiff be the one to pay any expenses and attorney fees before any such transfer is made.
Attorney or parties in California who wish to file a motion for change of venue can see below to view a portion of a sample motion for change of venue complete with a memorandum of points and authorities with full citations to case and statutory authority sold by the author.
The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. Visit his website at http://www.legaldocspro.net
Subscribe to my weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639
