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Court of Appeal, First District, Division 5, California.

Andrew BROWN et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent, C.C. MYERS, INC., et al., Real Parties in Interest.


Decided: March 23, 1984

Jeffrey S. Brand, Farnsworth, Saperstein & Brand, Alberta M. Blumin, Oakland, for petitioners. No appearance for respondent. Mark A. Meier, Nageley, Tennant & Parshall, Inc., Sacramento, for real parties in interest.

Andrew Brown, Charles Jones and Sam George are plaintiffs in a civil action against real parties in interest C.C. Myers, Inc., and several other individual and entity defendants.   Brown and Jones are black;  George is white.   By first amended complaint in Alameda County Superior Court they alleged that defendants, in the course of constructing a freeway in Oakland, employed plaintiffs and then discriminated against and ultimately fired Brown and Jones because they were black and George because he refused to cooperate in defendants' allegedly racist practices.   Plaintiffs sought compensatory and punitive damages and reinstatement as employees.   Defendants moved for a change of venue to Sacramento County on the factual ground that no defendant resides in Alameda County but that three individual defendants reside in Sacramento County.   The motion was granted.   By petition for writ of mandate (Code Civ.Proc., § 400) plaintiffs seek review of respondent court's order.   We conclude that the order was proper;  accordingly we deny plaintiffs' petition.

 “As a general rule venue is determined by the status of the complaint at the time the motion is made ․”  (6 Cal.Practice:  Grossman and Van Alstyne, Pleading—Civil Actions (2d ed. 1981) Venue (“Grossman and Van Alstyne”), § 433, p. 495.)   Here the first amended complaint contains three counts:

The first count alleges the facts of discriminatory treatment in some detail and asserts plaintiffs' entitlement to compensatory damages for “emotional pain and suffering,” recompense for loss of earnings, and punitive damages.

The second count incorporates the factual liability and damages allegations of the first, adding only the allegation that defendants had, by acting as alleged, “breached the covenant of good faith and fair dealing intrinsic to their employment relationship” and “wrongfully discharged” each plaintiff.

The third count (added by amendment approximately a year after the complaint was initially filed) similarly incorporates the factual liability and damages allegations of the first, but adds allegations (1) that defendants' alleged conduct constituted illegal racial discrimination in employment under California's fair employment statute (Gov.Code, § 12900 et seq.) and that plaintiffs had met the procedural conditions precedent to civil suit under the statute, and (2) that plaintiffs seek, in addition to damages, reinstatement as employees.

Without answering (cf. Code Civ.Proc., § 396b, subd. (a)), defendants (except for one individual whose nonparticipation appears to be irrelevant to these issues) moved to change venue to Sacramento County on the ground that “the Court designated in the Complaint is not the proper Court” (Code Civ.Proc., § 396b, subd. (a);  § 397, subd. 1).   In support of their motion they submitted declarations which recite among other things that none of the defendant corporations “and entities” had its principal place of business in Alameda County, that three named individual defendants resided in Sacramento County, and that all other individual defendants were residents of counties other than Alameda County.

Plaintiffs filed counterdeclarations to the effect that the employment and the acts of discrimination had occurred, and that important witnesses lived, in Alameda County.

Respondent court granted defendants' motion without stating reasons.

Most of the issues framed by the parties may be disposed of summarily:  It sufficiently appears that none of the defendants resides in Alameda County, that none of the special venue rules applicable to “injury to person” (cf. Grossman and Van Alstyne, § 261, p. 288;  cf. 2 Witkin, Cal Procedure (2d ed. 1970) Actions, § 448, pp. 1276–1277;  Carruth v. Superior Court (1978) 80 Cal.App.3d 215, 219–220, 145 Cal.Rptr. 344), to contract actions (cf. Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 460–461, 113 Cal.Rptr. 711, 521 P.2d 1103;  Spindle v. Travelers Ins. Companies (1977) 66 Cal.App.3d 951, 958, 136 Cal.Rptr. 404;  Sawyer v. Bank of America (1978) 83 Cal.App.3d 135, 139, 145 Cal.Rptr. 623), or to corporation or association defendants (cf. Grossman and Van Alstyne, § 377, pp. 421–422) will control, and that the question of convenience of witnesses was not properly before respondent court because no answer had been filed (Code Civ.Proc., § 396b, subd. (d);  cf. also Grossman and Van Alstyne, § 440, pp. 512–515).   The matter comes down to a choice between two venue rules:  The general rule (codified in Code Civ.Proc., § 395, subd. (a) 1 ) that venue of a transitory action such as this should be at a defendant's place of residence, or the special rule (enacted in Gov.Code, § 12965, subd. (b) 2 ) which in most if not all cases would permit a plaintiff to maintain an otherwise proper “civil action under” the fair employment statute in the county where the unlawful practice occurred.

Code of Civil Procedure section 395, subdivision (a), “is regarded as establishing the general right of the defendant to residence venue, to which all other provisions relating to venue are deemed exceptions.”  (Grossman and Van Alstyne, § 191, p. 192 (fns. omitted).)  “[I]t is clear that if the plaintiff desires to lay venue elsewhere than at the residence of a defendant who is a natural person, he must clearly establish this right to do so pursuant to some statutory exception to the general rule.”  (Id., § 191, p. 194 (fns. omitted).)

Defendants relied on the general rule, and respondent court apparently applied it.

The special rule in subdivision (b) of Government Code section 12965 is traceable to the comparable federal statute (42 U.S.C. § 2000e–5, subd. (f)(3));  in the context of California practice it creates problems of construction which the Legislature might well address.   But we do not deal with those problems in this case:  We conclude that plaintiffs have not established that the special rule should displace the general rule in the circumstances of record.

 Plaintiffs argue that they have brought a single “civil action under” the fair employment statute.   We disagree.   Usually a venue rule which turns, as the special rule does, on the subject matter of the action will speak in terms either of the cause of action stated (e.g., an action for “injury to person” (Code Civ.Proc., § 395, subd. (a))) under California's adaption of the Pomeroy factual theory of cause of action (cf. 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 22, p. 1707, et seq.), or of the main form of relief sought (e.g., an action “for the recovery of real property” (Code Civ.Proc., § 392)).  (Cf. Grossman and Van Alstyne, § 366, pp. 391–394;  id., § 372, pp. 405–409.)   But as applied in this action the special venue rule of section 12965 relates, strictly speaking, neither to the underlying facts nor to the main relief sought, but rather to an alternative legal theory by which the facts might give rise to the relief.   Plaintiffs had initially advanced, in their first two counts, common-law theories both of which are, in the abstract, maintainable independent of the fair employment statute.  (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220, 185 Cal.Rptr. 270, 649 P.2d 912.)   By subsequently amending to add reference to the Government Code (and an ancillary prayer for reinstatement as employees) plaintiffs altered neither the underlying factual cause of action nor the main relief—damages—sought:  At most they simply added a third, distinct legal theory to their complaint.

 Venue of an action which embodies more than one venue-relevant element must be determined by reference to what have been called “mixed action” rules.  (Grossman and Van Alstyne, § 365, p. 389 et seq.)   Within the frame of reference defined by section 12965 this is a mixed action for venue purposes:  Only the third count is subject to section 12965, while the first and second counts remain subject to the general venue rule.   The relevant mixed action rules have been summarized as follows:  “[I]f in such an action the non-residence county in which the action was commenced is improper venue with respect to one of the counts, even though good as to the rest, the entire action will be transferred on motion to the county of a defendant's residence, because the entire action, being a mixed action, is not within any statutory exception authorizing venue elsewhere than in a residence county.”  (Grossman and Van Alstyne, § 376, pp. 418–419 (fns. omitted).)

 Plaintiffs argue that the strength of the policy underlying the fair employment statute (cf. Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 220, 185 Cal.Rptr. 270, 649 P.2d 912) dictates that the special venue rule stated in section 12965 should be applied in any event.   We are sensitive to the importance of the policy basis for the fair employment statute, but we must also bear in mind that the subject of venue is attended by policy considerations of its own, one of the strongest of which is the notion that, in general, a defendant is entitled to a trial in his home county.   We must assume that the fair employment laws of this state will be properly administered regardless of venue:  Plaintiffs' policy argument does not persuade us to deviate from orthodox venue analysis.

The peremptory writ is denied.   The alternative writ is discharged.

I respectfully dissent.   The California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) establishes a comprehensive scheme for redress of, inter alia, employment discrimination based on race.  (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 185 Cal.Rptr. 270, 649 P.2d 912;  Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 193 Cal.Rptr. 760.)  Section 12965, subdivision (b) specifically provides that an action to enforce one's rights under the FEHA “may be brought in any county in the state in which the unlawful practice is alleged to have been committed ․”  Plaintiffs have alleged they were employed and working in Alameda County, and fired there for reasons of race, in violation of the FEHA.   Thus, plaintiffs have alleged an actionable tort (Commodore Home Systems, Inc. v. Superior Court, supra, at p. 220, 185 Cal.Rptr. 270, 649 P.2d 912;  Snipes v. City of Bakersfield, supra, at p. 865, 193 Cal.Rptr. 760) occurring within Alameda County.   I perceive plaintiffs' primary cause of action as one sounding in tort for which they are seeking damages, thus permitting the action to proceed in Alameda County under either Government Code section 12965, subdivision (b) or Code of Civil Procedure section 395, subdivision (a).

However, insofar as the two venue statutes may appear to conflict, three well established rules of statutory construction apply:  First is the doctrine that when two statutory provisions dealing with the same subject appear irreconcilable, the latest expression of the Legislature is deemed controlling.  (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610.)   The second is that specific or particular statutes or provisions prevail over general.  (In re James M. (1973) 9 Cal.3d 517, 522, 108 Cal.Rptr. 89, 510 P.2d 33;  Code Civ.Proc., § 1859.)   Third, is the rule that statutory language should not be treated as superfluous.  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224;  People v. Gilbert (1969) 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.)   Application of the foregoing rules indicates that the specific venue provisions of Government Code section 12965, subdivision (b) as the last act of the Legislature dealing with this issue, control over the general provisions of Code of Civil Procedure section 395, subdivision (a).

I would hold that by specifically providing that actions to enforce discriminatory hiring practices can be enforced in the county in which the unlawful practices are alleged to have occurred, the Legislature has clearly expressed its intent to permit the redress of such violations in the county of occurrence.   To conclude otherwise would be to construe FEHA's provision in section 12965, subdivision (b) that an enforcement action may be brought in the county of occurrence as superfluous.  “ ‘A cardinal rule of construction is that ․ a construction making some words surplusage is to be avoided.’   (Watkins v. Real Estate Comr. (1960) 182 Cal.App.2d 397, 400, 6 Cal.Rptr. 191.)”  (People v. Gilbert, supra, 1 Cal.3d at p. 480, 82 Cal.Rptr. 724, 462 P.2d 580.)  “ ‘If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.’   (Select Base Materials v. Board of Equal. [1959] 51 Cal.2d 640, 645, 335 P.2d 672.)”  (Moyer v. Workmen's Comp. Appeals Bd., supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)

Finally, it is noteworthy that freedom from racial discrimination in employment is declared in the FEHA to be a civil right.  (Gov.Code, § 12921;  see also Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 185 Cal.Rptr. 270, 649 P.2d 912;  Snipes v. City of Bakersfield, supra, 145 Cal.App.3d 861, 193 Cal.Rptr. 760.)   The Legislative declaration of public policy contained in section 12920 of the FEHA is significant;  it provides, in pertinent part:  “It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race ․ color, national origin, ancestry, ․ [¶] It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.  [¶] ․  [¶] It is the purpose of this part to provide effective remedies which will eliminate such discriminatory practices.  [¶] This part shall be deemed an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state.”  (Emphasis added.)

It does not appear that an “effective remedy” (Gov.Code, § 12920) and the specific venue provisions of section 12965, subdivision (b) require a victim of discrimination to pursue his or her remedy in some county other than that in which the unlawful act occurred.   To hold otherwise would dilute the efficacy of the injured employee's remedy and encourage a search for “safer” jurisdictional havens for unscrupulous employers, neither of which, it seems, the Legislature wished to accomplish.

I would issue the writ.


1.   Code of Civil Procedure section 395, subdivision (a), provides:“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.”

2.   Government Code section 12965, subdivision (b), provides in pertinent part:“Such an action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to such practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any such county, such an action may be brought within the county of defendant's residence or principal office.”

KING, Associate Justice.

LOW, P.J., concurs.

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