THARP v. JENNINGS

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Court of Appeal, Fifth District, California.

Morris A. THARP et al., Petitioners, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent; Sam W. JENNINGS, as Secretary, etc., et al., Real Parties in Interest.

Civ. 6497.

Decided: January 05, 1982

Christenson & Kralowec and Arthur C. Kralowec, Porterville, for petitioners. No appearance for respondent. George Deukmejian, Atty. Gen. and George J. Roth, Deputy Atty. Gen., Sacramento, for real parties in interest.

OPINION

Petitioners seek a writ of mandate directing respondent court to deny real party Jennings' motion to change venue of a pending civil action to the Superior Court of Sacramento County.

This case requires our construction of Government Code section 9551 to determine its proper scope.

FACTS

On April 29, 1981, petitioners (hereinafter plaintiffs) filed a petition for writ of prohibition and mandate in respondent court (hereinafter the trial court). The petition below names Sam W. Jennings, Secretary of the New Motor Vehicle Board, and Doris V. Alexis, Director of the Department of Motor Vehicles, as respondents (hereinafter defendants).

The petition below alleges the following: Plaintiffs on or about March 20, 1981, obtained a temporary new car dealer license from the Department of Motor Vehicles, and expended money to operate a new car dealership in reliance upon a representation by the Department of Motor Vehicles that the prior General Motors franchisee at that location went out of business on March 21, 1980. The New Motor Vehicle Board held a hearing on April 14, 1981, upon the protest of several General Motors franchisees pursuant to Vehicle Code section 3062 et seq.;2 this hearing was in violation of plaintiffs' right to notice and opportunity to be heard. Thereafter, plaintiffs were notified that the New Motor Vehicle Board had ordered the Department of Motor Vehicles to revoke plaintiffs' license to sell new Chevrolet vehicles. The New Motor Vehicle Board has set a time and place for further hearing upon the protest petition in violation of plaintiffs' right to appear without restriction as indispensable parties rather than as interested individuals.

The petition below prays: (1) A peremptory writ of mandate directing defendants to dismiss the protest petition before the New Motor Vehicle Board and to base no judgment and take no action on the evidence or argument presented at the April 14, 1981, hearing; (2) a peremptory writ of mandate directing defendants to refrain from attempting to revoke or suspend or otherwise interfere with plaintiffs' new motor vehicle license or taking from plaintiffs' possession its temporary license or other evidence of authority to act as a new motor vehicle licensee; (3) a peremptory writ of prohibition restraining defendants, “... from taking any further action or proceedings, including hearing continuances, enforcement of proceedings already had or from acting in any other way ...” in the protest proceedings before the New Motor Vehicle Board; (4) damages in accordance with proof; (5) attorneys' fees in the amount of $1,500; (6) costs of the proceeding.

On May 8, 1981, defendant Jennings filed a motion for change of venue to the Superior Court of Sacramento County. The motion was grounded in part upon Government Code section 955 and supported by a demand of the Attorney General pursuant to that statute. In resisting the motion for change of venue, plaintiffs relied upon Code of Civil Procedure section 393 to lay proper venue in Tulare County.

On May 14, 1981, the trial court granted the motion for change of venue expressly relying upon Government Code section 955.

DISCUSSION

Government Code section 955 provides:

“The proper court for trial of actions against the State for the taking or damaging of private property for public use is a court of competent jurisdiction in the county in which the property is situate. Except as provided in Sections 955.2 and 955.3, upon written demand of the Attorney General made on or before answering, the place of trial in other actions shall be changed to Sacramento County.“

The express exceptions to section 955 are not applicable to this case. Section 955.2 applies to actions for death or injury to persons or personal property. Section 955.3 applies to actions against the state by a public entity. The discussion below will ignore the two express exceptions to section 955.

The first paragraph of section 955 provides for venue where the property is situate in inverse condemnation actions. The statutory phrase “in other actions” contained in the second paragraph must be construed to mean actions against the state other than the actions specified in the first paragraph. Thus, the second paragraph mandates a change of venue to Sacramento County upon demand of the Attorney General in all actions against the state except inverse condemnation actions.

Plaintiffs' petition below does not state a cause of action for inverse condemnation. Therefore, section 955 mandates the trial court's order changing venue to Sacramento County.

Plaintiffs urge generally that section 955 is a part of the California Tort Claims Act and, therefore, is limited in scope to actions which require a claim to be filed as a condition precedent thereto-i.e., actions for money or damages. We disagree. The location and/or context of section 955 in the Government Code cannot be used to narrow its scope. (s 6.)

Plaintiffs rely upon section 8143 and the legislative comment thereto. However, section 814 does not apply to section 955 because section 814 is located in part 2 but section 955 is located in part 4 of division 3.6 of the Government Code.

Plaintiffs assert that transitory actions against statewide boards or commissions which are not actions against the state itself are outside the scope of section 955. (See 2 Witkin, Cal. Procedure (2d ed. 1970) s 489, p. 1312.) We disagree. As used in section 955 (s 940), “State” is broadly defined to include any “office, officer, department, division, bureau, board, commission or agency of the State claims against which are paid by warrants drawn by the Controller.” (s 940.6.)

Duval v. Contractors State License Board (1954) 125 Cal.App.2d 532, 534, 271 P.2d 194 supports plaintiffs' contention that section 955 does not apply to this case. The reviewing court construed the phrase “in other actions” contained in former section 160504 to refer to actions against the state upon an express contract or for negligence. This holding was directly grounded upon former section 160415 which provided that the right to sue the state was subject to the conditions prescribed in chapter 3. Since former section 16050 was located in chapter 3, the statutes established a direct relationship between former section 16050 and former section 16041 which allowed the Duval court to construe former section 16050 by reference to former section 16041. The present statutes do not provide such a direct relationship between section 955 and the statutes which require a claim to be filed as a condition precedent to a suit against a public entity for money or damages. (ss 905.2 and 945.4.) Therefore, the presently effective statutes will not support the Duval court's analysis or a narrow construction of section 955.

Plaintiffs contend that Tulare County venue is proper pursuant to Code of Civil Procedure section 393. Assuming this to be so, it is of no consequence. Section 955 does not limit the Attorney General's right to a change of venue upon demand to cases where present venue is improper.6 Section 955 mandates a change of venue upon demand even if Tulare County venue is authorized by Code of Civil Procedure section 393.

The petition for writ of mandate is denied.

FOOTNOTES

1.  Unless otherwise indicated, future section references are to the Government Code.

2.  Vehicle Code sections 3062 et seq. provide that a franchisor cannot enter into a new franchise upon the protest of existing franchisees in a relevant market area absent a determination by the New Motor Vehicle Board that good cause exists for such a new franchise. Vehicle Code section 3062 provides that the reopening in a relevant market area of a dealership that has not been in operation for one year or more shall be deemed the establishment of an additional motor vehicle dealership within the meaning of that statute.

3.  Section 814 provides, “Nothing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or public employee.”

4.  Former section 16050 provided: “The proper court for trial of actions for the taking or damaging of private property for public use is a court of competent jurisdiction in the county in which the property is situate. (P) Upon written demand of the Attorney General made on or before answering, the place of trial in other actions shall be changed to Sacramento County.” (Stats. 1945, ch. 119, s 16050.)

5.  Former section 16041 provided: “Any person who has a claim against the State (1) on express contract, (2) for negligence, or (3) for the taking or damaging of private property for public use within the meaning of Section 14 of Article I of the Constitution, shall present the claim to the board in accordance with Section 16021. If the claim is rejected or disallowed by the board, the claimant may bring an action against the State on the claim and prosecute it to final judgment, subject to the conditions prescribed by this chapter.” (Stats. 1945, ch. 119, s 16041.)

6.  The text discussion excludes venue authorized by Code of Civil Procedure section 401, subdivision 1. If the action is commenced where the Attorney General has an office, Code of Civil Procedure section 401 clearly precludes a change of venue to Sacramento County pursuant to section 955.

ZENOVICH, Acting Presiding Justice.

PAULINE DAVIS HANSON and ANDREEN, JJ., concur.