NEWMAN v. NORTHWESTERN PACIFIC RAILROAD COMPANY

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

Renee NEWMAN and Renee Newman as guardian ad litem of Robert Jeffrey Newman, a minor, Plaintiffs and Respondents, v. NORTHWESTERN PACIFIC RAILROAD COMPANY, a corporation, Defendant, County of Sonoma, Defendant and Appellant.

Civ. 19670.

Decided: June 22, 1961

James Murray, San Francisco, for plaintiffs and respondents. Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, Robert A. Seligson, San Francisco, of counsel, for defendant and appellant.

From an order denying its motion for change of venue defendant County of Sonoma appeals.

Plaintiffs filed their action on April 28, 1958, in the City and County of San Francisco against Northwestern Pacific Railroad Company, a corporation, and County of Sonoma, for wrongful death and personal injuries, contending defendants were negligent in the maintenance of a railroad crossing in the County of Sonoma. Defendant county filed its answer to the complaint on July 1, 1958. Amendments to the complaint were filed in October and December 1959.

On May 17, 1960, defendant County of Sonoma filed notice of motion for change of venue to the County of Sonoma under the provisions of section 394, Code of Civil Procedure. This motion was denied, from which denial defendant county appeals.

Defendant county's sole point on this appeal is that section 394, Code of Civl Procedure, uses language which is mandatory and therefore this case can be tried only in the County of Sonoma.

Plaintiffs insist the words ‘shall’ and ‘must’ are not always to be construed as mandatory in nature and further, the motion for change of venue came too late.

Section 394, Code of Civil Procedure, insofar as it concerns this case, reads as follows:

‘[Venue of actions by or against a city or county] (1) An action or proceeding against a county, or city and county, may be tried in such county, or city and county, unless such action or proceeding is brought by a county, or city and county, in which case it may be tried in any county, or city and county, not a party thereto. Whenever an action or proceeding is brought by a county, city and county, or city, against a resident of another county, city and county, or city, or a corporation doing business in the latter, the action or proceeding must be, on motion of either party, transferred for trial to a county, or city and county, other than the plaintiff, if the plaintiff is a county, or city and county, * * * and other than that in which the defendant resides or is doing business, or is situated. Whenever an action or proceeding is brought against a county, city and county, or city, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, 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, or city and county, other than that in which the plaintiff, or any of the plaintiffs, resides, or is doing business, or is situated, and other than the plaintiff county, or city and county, or county in which such plaintiff city is situated, and other than the defendant county, or city and county, or county in which such defendant city is situated; provided, however, that any action or proceeding against a city, county, or city and county for injury occurring therein, to person or property or person and property caused by the negligence or alleged negligence of such city, county, or city and county, or its agents or employees, shall be tried in such county, or city and county, or if a city is a defendant, in such city or in the county in which such city is situated. In any such action or proceeding, the parties thereto may, by stipulation in writing, or made in open court, and entered in the minutes, agree upon any county, or city and county, for the place of trial thereof. When the action or proceeding is one in which a jury is not of right, or in case a jury be waived, then in lieu of transferring the cause the court in the original county may request the chairman of the judicial council to assign a disinterested judge from a neutral county to hear said cause and all proceedings in connection therewith. * * *

‘(2) Any court in a county hereinabove designated as a proper county, which has jurisdiction of the subject matter of the action or proceeding, is a proper court for the trial thereof.’ [Emphasis ours].

No case or authority has been cited to us and we have found none as to the interpretation of the following words added to this code section: ‘* * * provided, however, that any action or proceeding against a city, county, or city and county for injury occurring therein, to person or property or person and property caused by the negligence or alleged negligence of such city, county, or city and county, or its agents or employees, shall be tried in such county, or city and county, or if a city is a defendant, in such city or in the county in which such city is situated. * * *’

Section 394 was enacted in 1872 and has been amended on numerous occasions. This section 394 has remained with its present verbiage since 1933.

Plaintiffs contend the motion for change of venue should be denied because no affidavit of merits was filed in the action upon the first appearance of defendant county. Inferentially plaintiffs are stating that the provisions of section 396b, Code of Civil Procedure, are applicable to the present case. This contention is without merit since the cases requiring a motion for change of venue with the necessary papers be filed upon the first appearance of the parties are those set forth in section 390b. Section 394 is a special statutory enactment outside the scope of the provisions of section 396b.

In Cook v. Pendergast, 61 Cal. 72, at page 78, the court said:

‘The ‘proper county’ is the county is which actions are required to be tried, ‘subject to the power of the Court, to change the place of trial’ by Sections 392, 393, 394 and 395 of the Code of Civil Procedure.

‘Section 396 has changed the rule, if it ever was a rule, which required the motion, or notice of the motion, in all cases to precede or accompany the answer or demurrer. The prohibition of a motion on the ground that ‘the county designated in the complaint is not the proper county,’ except where the affidavit is filed and the written demand made when the answer or demurrer is filed, is itself a permission that a motion on any other statutory ground may be made by defendant, without the affidavit and demand, within a reasonable time after his appearance. * * *'

Former provisions of section 396 are now found in section 396b.

In discussing the Cook v. Pendergast case, supra, the court in Mono Power Co. v. City of Los Angeles, 33 Cal.App. 675, at page 682, 166 P. 387, at page 391, said:

‘* * * We understand the court to have held that a demand for a change of the place of trial at the time of appearance, as also other requirements of section 396, do not apply where the motion is made on any ground other than that the action is not brought in the proper county for its trial. * * *’

In Daneri v. City of San Diego, 55 Cal.App. 562, 203 P. 829, plaintiff resident of San Diego County brought an action against the City of San Diego and filed the action in the County of San Bernardino. After appearing, defendant city filed a motion for change of venue under the provisions of section 394, Code of Civil Procedure. The court found that section 396 did not apply and the defendant city had ‘* * * exercised a special privilege granted to it under section 394, Code of Civil Procedure, and demanded a change of place of trial irrespective of and without regard to whether the action was brought in the proper county or not.

‘As this motion was made under the provisions of section 394 of the Code of Civil Procedure, defendant was not obliged to make it at the time of its first appearance in the action [citation].’ 55 Cal.App. at page 564, 203 P. at page 830.

The motion in the instant case was made on the statutory grounds set forth in section 394, Code of Civil Procedure, and thus was outside the requirements of section 396b, Code of Civil Procedure.

Plaintiffs do not give us any citation of authority to sustain their position that the motion for change of venue was filed too late with a resulting possible waiver of the right to make the motion.

In addition to the facts set forth above, it appears there was a pretrial order dated October 5, 1959. In plaintiffs' points and authorities submitted to the trial court in opposition to the motion, they state the trial was set for December 14, 1959, ‘but has not as yet been called out for trial.’ No reason appears as to why the case was not tried on December 14, 1959, and we cannot speculate as to the reason. There is no indication of any trial date set for the future and after December 14, 1959. Plaintiffs have made no showing of any prejudice suffered by them by reason of a change of venue. We cannot, under the factual situation prevailing in this case, hold that the defendant county has waived its right to a change of venue. Under the facts of the case the assertion of this right came within a reasonable time.

Whether the words ‘shall’ and ‘must’ are mandatory is, of course, a process of statutory construction. Numerous cases may be cited on either side of this question.

If there are cases construing the portions of section 394 they will be helpful in determining the true meaning and what was the intent of the Legislature.

That part of section 394 reading ‘* * * Whenever an action is brought by a county or city against residents of another county or city, or a corporation doing business in the latter, the action must be, on [the] motion of the defendant, transferred for trial to a county other than the plaintiff, * * *’ has been interpreted by the court in Yuba County v. North America, etc., Min. Co., 12 Cal.App. 223, 107 P. 139. In the Yuba County case, the county brought the action against several defendants. Defendants moved for a change of venue which was granted. In interpreting that provision of section 394, as it read in 1909 and as set forth above, the court said, 12 Cal.App. at page 226, 107 P. at page 140:

“* * * There is no possible doubt that the action was properly commenced in this county under section 392, Code [of] Civ.Proc., and under the Constitution, and could be properly tried here; but defendants have seen given them by section 394, and the court is bound by the mandatory terms of the law as there expressed. * * *” fit to avail themselves of the right

In the same code provision the Legislature has used both the words ‘may be tried’ and ‘must be * * * transferred’ and ‘shall be tried.’ The courts have interpreted the meaning of ‘must be * * * transferred’ to be mandatory upon the court. Yuba County v. North America, etc., Min. Co., supra. Following in the same paragraph of the same code section and in a sentence using the identical words, the Legislature has created a special provision in negligence cases where the county is defendant by using the words ‘shall be tried in * * *’ defendant county. The courts have interpreted the words, ‘Whenever an action or proceeding is brought against a county * * * the action or proceeding must be * * *’ as being mandatory. It follows the exception inserted by the Legislature in 1929 and which is part of the same paragraph should receive the same interpretation.

It does appear that in aggravated situations of which this is not one, a motion for change of venue under section 394 interposed at an extremely late date could result in loss of time and money for the courts, the litigants, and their attorneys. However, since the Legislature has not placed a limit upon the time when such a motion may be interposed, it is not for the court to fix such a limitation so long as it is interposed within a reasonable time.

Another of plaintiffs' positions is that defendant Northwestern Pacific Railroad Company should have been served with notice of motion for change of venue. To this position defendant county replies there is no necessity for such a service under the exception provided in section 394. With defendant's reply we must agree. Since the exception is mandatory and a motion for change was made, there is nothing which defendant Northwestern Pacific Railroad Company could do to prevent or stop the trial court from granting the motion. It would have been a useless gesture and expense to have served defendant county's notice of motion upon the defendant railroad. This argument is particularly cogent in view of the fact that prior to the motion for change of venue there had been executed a covenant not to sue the defendant railroad. Also, there is nothing contained in the papers or briefs on this appeal which would indicate the defendant railroad had appeared in the action.

Section 1014, Code of Civil Procedure, insofar as it concerns this case, reads as follows:

‘* * * After appearance, a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is requred to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him * * *’

In Benedict v. Cozzens et al., 4 Cal. 381, at page 382, the court said:

‘2. The substitution of papers is always within the discretion of the Court, and no notice of the motion to apply for it need be given, when the notice can be of no use. The principal paper substituted here, was the declaration, to which the defendant had the opportunity afterwards to plead or demur. The only thing the defendant could have shown, if he had had the notice on the motion to substitute, was that the peper offered was in some respects different from the one lost. * * *’

In People ex rel. Department of Public Works v. Loop, 161 Cal.App.2d 466, 474, 326 P.2d 902, 907, the court said, ‘* * * The general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party. Caledonian Ins. Co. v. Superior Court, 140 Cal.App.2d 458, 461, 295 P.2d 49.’ Ergo, if the order sought does not affect the adverse party and if the adverse party, as in the instant case, would be helpless to do anything if he were served, the notice of motion need not be served upon the adverse party.

If defendant railroad has not appeared then under the provisions of section 1014, Code of Civil Procedure, it would not be entitled to notice nor would defendant county be required to serve notice of the motion upon it.

Order reversed.

McCABE, Justice pro tem.

DRAPER, Acting P. J., and SHOEMAKER, J., concur.