BROCK v. SUPERIOR COURT IN AND FOR STANISLAUS COUNTY (1946)

Petitioner seeks issuance of a writ of prohibition commanding respondent court to cease and desist from any further proceedings in an action brought in said court, other than to vacate an order therein denying change of venue and to order said action transferred to the Superior Court of Sacramento County.

The action which petitioner seeks to have transferred was brought in Stanislaus County against petitioner Brock as Director of Agriculture, Fig Proration Zone No. 1, a public corporation, and nine persons alleged to be directors of said corporation and members of Dried Fig Program Committee of said Zone No. 1. The complaint alleges that plaintiff S. S. Sorrenti is a grower of figs in said Zone No. 1; that the Dried Fig Committee for said zone had theretofore proposed quality and diversion regulations for the year 1945, which had been approved and put into effect by the Director; that said regulations are unreasonable, discriminatory, illegal and void in certain respects; that defendants have signified their intention of enforcing said regulations and unless restrained and enjoined from so doing plaintiff will suffer great and irreparable damage. The prayer of the complaint is for a decree adjudging said regulations to be unreasonable, illegal and void, and for an order restraining defendants from enforcing them.

To said complaint defendants demurred, and at the same time filed a notice of motion for change of venue to Sacramento County on the ground that Brock, as Director of Agriculture, is the principal defendant in the action, that he is a resident of the County of Sacramento, and that said county is the proper county for the trial of said action. This motion was supported by the affidavit of Director Brock in which he averred his residence in Sacramento County, the further fact that none of the defendants reside in Stanislaus County, and that plaintiff himself resides in San Joaquin County. Sorrenti, in an opposing affidavit, alleged that he is a grower of figs in both Stanislaus and San Joaquin Counties though residing in the latter county; that under the provisions of Section 393(b) of the Code of Civil Procedure the Superior Court of each of the counties in Zone No. 1 is a proper county for the trial of said action, and that said section restricts the right of a defendant in the action to have same tried in the county of his residence. The trial court denied the motion for change of venue, the filing of this petition followed, and we issued an alternative writ.

No contention is made that prohibition is not the proper remedy in the premises, and counsel for respondent, in his argument before this court, expressly stated that any question of propriety of the writ was waived, and that the only question is as to venue.

Petitioner relies upon Section 395 of the Code of Civil Procedure as authorizing transfer of the action to the county of his residence. Respondent on the other hand contends that the allegations of his complaint show that Section 393(b) of the Code of Civil Procedure governs. The latter section provides that ‘the county in which the cause, or some part thereof, arose,’ is the proper county for the trial of an action ‘Against a public officer or person especially appointed to execute his duties, for an act done by him in virtue of his office.’ And it is urged by respondent that plaintiff's cause of action, or some part of it, arose in Stanislaus County, and that it is against Brock, as a public officer, ‘for an act done by him in virtue of his office’ as Director of Agriculture, particular reliance being placed upon Cecil v. Superior Court, 59 Cal.App.2d 793, 140 P.2d 125. Petitioner argues that the Cecil case is clearly distinguishable, and that under the decisions in the earlier cases of Bonestell, Richardson & Co. v. Curry, 153 Cal. 418, 419, 420, 95 P. 887; State Commission in Lunacy v. Welch, 154 Cal. 775, 99 P. 181; Bloom v. Oroville-Wyandotte Irrigation Dist., 34 Cal.App.2d 102, 93 P.2d 164, and People ex rel. McMillan v. Vischer (McMillan v. Richards), 9 Cal. 365, 420, 70 Am.Dec. 655, the cause should be removed to the county of his residence.

We think that petitioner's contention must be sustained. In Bonestell, Richardson & Co. v. Curry, supra, the action was brought against the Secretary of State and other public officials and the members of the partnership firm of A. Zellerbach & Sons, to which latter firm the named officials had awarded a contract for furnishing paper for use in the office of the state printer. Plaintiff corporation, which was engaged in the same line of business as A. Zellerbach & Sons, claimed that it had been the lowest bidder and therefore was entitled to the contract; and it sought to enjoin further action upon the contract with A. Zellerbach & Sons, upon the ground that it was illegal and void. The action was commenced in the City and County of San Francisco, the place of business of A. Zellerbach & Sons. The official defendants moved to change the place of trial to Sacramento County, not on the ground of residence, but under Section 393(b), supra, claiming that their official acts in connection with the contract were performed in Sacramento, and were done by them by virtue of their offices. The court said, 153 Cal. at pages 419, 420, 95 P. at page 887:

‘This subdivision is not applicable to the case at bar. This action is not one against a public officer ‘for an act done by him in virtue of his office’ within the meaning of those words as the same are used in this law. It was held in [People ex rel.] McMillan v. Vischer, 9 Cal. [at page] 420, 70 Am.Dec. 655, that a similar provision in our practice act was not applicable to a proceeding in mandamus to compel a sheriff to execute a deed, the court saying through Field, J.: ‘The second subdivision of section nineteen, which provides that actions against a public officer for acts done by him in virtue of his office shall be tried in the county where the cause or some part thereof arose, applies only to affirmative acts of the officer, by which, in the executin of process, or otherwise, he interferes with the property or rights of third persons, and not to mere omissions or neglect of official duty. Elliott v. Cronk's Adm'rs, 13 Wend, 35; Hopkins v. Haywood, 13 Wend. 265.’ The cases cited, construing a practically similar New York statute, fully sustain the text. The provision was subsequently made a part of our Code of Civil Procedure in the light of the construction previously given by the courts, and with the intention we must assume, that it should continue to be so construed, that it construction contemplates only such affirmative acts of an officer as directly interfere with the personal rights or property of the person complaining, such as wrongful arrest, trespass, conversion, etc. The complaint in the case at bar shows no such case. Moreover, the action is not one against public officers for an act done by them, but is an action against them and certain other persons solely to prevent the doing of certain acts by such officers and by the other defendants in the future. It is thoroughly established, both by statute and by the decisions, that in all cases as to which express provision is not made to the contrary the proper county for trial, subject to the power of the court to change the place of trial on account of convenience of witnesses, disqualification of judge, and inability to have an impartial trial (Code Civ.Proc., § 397), is the county in which the defendants, or some of them, reside at the commencement of the action. (Code Civ.Proc., § 395.)' (Italics by the Court.)

In People ex rel. McMillanv. Vischer, above cited, the action against defendant Vischer was in mandamus to compel him, as sheriff, to execute a deed to a redemptioner, and it was argued that it was brought in the wrong county. It was in this connection that the court used the language quoted above, it being contended that an action to compel a public officer to perform, is not an action against him for acts done by him in virtue of his office, but to comepl him to do an act, and that therefore the action fellwithin the general rule contained in the 20th section of the Practice Act providing for the trial of an actionin the county in which the parties or some of them reside.

In State Commission in Lunacy v. Welch, supra, an action in mandamus against a county officer to compel him to pay a certain sum of moneyto the state treasurer was held triable, under section 395 of the Code of Civil Procedure, in the county in which the defendant resided. The court said that Section 393(b) did not apply, citing McMillan v. Richards (People ex rel. McMillan v. Vischer) and Bonestell, Richardson & Co. v. Curry, supra.

Bloom v. Oroville-Wyandotte Irrigation District, supra, also involved a proceeding in mandamus, its purpose being to compel an irrigation district and its officers to pay moneys due on bond obligations of the district or to levy an assessment for such payment. this court held that an order changing the place of trial to the ocunty in which defendants resided was proper, citing State Commission in Lunacy v. Welch, supra.

We think that Cecil v. Superior Court, supra, relied upon by respondent, is distinguishable upon its facts. There Cecil, the Director of Agriculture, sought to secure the removal to Sacramento County, the county of his residence, of amandamus proceeding instituted by Arden Farms Company in Los Angeles County. It was there shown that an administrative proceeding against Arden Farms Co., a milk distributor, to cancel its license as such distributor, had been held in Los Angeles County, and that thereafter the Director, at Sacramento, had made an order that the license of Arden Farms Company should be revoked unless it should, within a given time, make certain payments to producers from whom it had purchased milk. The distributor refused to make the payments and sought, in the proceeding in mandamus, to have a retrial of the issues involved in the administrative proceeding before the department, asking also for revocation of the order revoking its license and an injunction against interference with its business by reason of said order. The court distinguished the cases cited hereinabove, and said, 59 Cal.App.2d at pages 767, 797, 140 P.2d at page 127:

‘We are not considering a mere general order issued by the Director of Agriculture applicable alike to all milk distributors in the state or to those engaged in certain branches of the industry, but an adjudication relating to particular practices and transactions of a single milk distributor engaged in business in Los Angeles County and which directly affects its property located in its principal place of business. We think that the act of the director which will thus operate to Arden's detriment is essentially of the type of acts which the courts have had in mind acts and those have described as affirmative acts and those which interfere with the property or rights of third persons. Certainly it is the act which has brought Arden to court for redress.’

In the action before us (which was filed in July, 1945) it is not alleged that there has been any adjudication relating to particular practices and transactions of a single producer of dried figs engaged in business in Stanislaus County. On the contrary, plaintiff attacks the regulations proposed by the Proration Program Committee of Fig Proration Zone No. 1, which zone comprises 18 counties, including the county of Sacramento, which regulations are applicable alike to all dried fig producers in all of said counties. And assuming that plaintiff is a producer of dried figs, which he does not allege, the regulations affect him no more than any of the other producers in the zone. It is not alleged by plaintiff that the regulations have been put into effect. The allegation is that defendants have signified their intention of enforcing them during the marketing season of 1945 and that ‘unless the defendants are restrained and enjoined from enforcing said Regulations, plaintiff will suffer great and irreparable damage.’ It is not even alleged why and how plaintiff will suffer such damage or how the enforcement of the regulations will affect him or that they will affect him any differently than other fig growers in the zone.

We think it is apparent that Sorrenti's cause of action—if he has stated one at all—is not one which arose in Stanislaus County, that it is not ‘for an act done’ by a public officer in virtue of his office within the contemplation of section 393(b) supra, and that the cause is properly removable to the county of residence of defendant Brock, as requested by defendants.

It is therefore ordered that the writ prayed for issue commanding respondent to vacate its order denying the motion for change of venue and to enter an order transferring the action entitled S. S. Sorrenti v. A. A. Brock et al., No. 30051, to the Superior Court of the State of California in and for the County of Sacramento.

ADAMS, Presiding Justice.

THOMPSON and PEEK, JJ., concur.