order of transfer vests the transferee court with jurisdiction. See Badella v. Miller, 44 Cal. 2d 81, 85, 279 P.2d 729 (1955); Chase v. Superior Court, 154 Cal. 789, 99 P. 355 (1908); Refrigeration Discount Corp. v. Superior Court, 91 Cal. App. 2d 295, 204 P.2d 932 (1949). But see London v. Morrison, 99 Cal. App. 2d 876, 879, 222 P.2d 941 (1950)(transferee court does not acquire jurisdiction pursuant to a venue change order until the transfer fee is paid and the papers are filed in the transferee court). A more precise reading of these cases, however, suggests that the cases stand for the proposition that a transferring court does not lose all jurisdiction over a case once the transfer order has been made. Badella, 44 Cal. 2d at 86 ("It does not appear that the finality and appealability of an order changing venue, nor the provision that the court to which the transfer is made should thereafter exercise jurisdiction, Code Civ. Proc. § 399, should preclude the court making the order from considering a motion to vacate such order ....")
To the extent that those cases hold that the transferee court immediately acquires jurisdiction upon the making of the transfer order, they are distinguishable, and no longer valid precedent. These cases predate a legislative change which took place in 1961. At that time, the Legislature amended § 399 to provide that the case papers would not be transmitted to the transferee court until after the time for filing a petition for writ of mandate had passed. The Court's research has failed to turn up any case addressing this aspect of the statute since its 1961 amendment. The legislative change suggests that the legislature intended to hold a case transfer in abeyance until after the losing party on a venue motion had a chance to seek a writ. Further, it is a fundamental tenet of statutory interpretation that statutes must be construed so as to give effect to their whole. As discussed above, to allow transfer during the time reserved for a writ challenge would eviscerate the statutes.
Plaintiff urges the Court not to dismiss the case but to transfer the action to the United States District Court for the Northern District of California. Plaintiff agrees with the Court that defendants' transfer of the case was improper, but asserts that said improper transfer resulted in only a procedural defect in defendants' removal. Plaintiff then argues that this Court has jurisdiction over the case, that the case was properly pending in San Mateo County and that removal would have been proper to the Northern District, citing Ullah v. F.D.I.C., 852 F. Supp. 218, 221 (S.D.N.Y. 1994)(where case removed to the wrong district, federal court can transfer venue rather than remand). However, Ullah is inapposite to this situation. The premature and illegal attempted transfer of this case to San Diego County Superior Court was a nullity. If so, no case was pending in the San Diego Superior Court when the purported removal occurred. Consequently, no case was removed to this Court. There being no case here, there is no case to be transferred to the Northern District. Moreover, even if plaintiff were correct that defendants' error is simply one of removing this case to the wrong district court, which is not what occurred here, it is clear that a district court has the discretion in such situations to dismiss the case. Mortensen v. Wheel Horse Prods., 772 F. Supp. 85, 90 (N.D.N.Y. 1991).
The purported transfer, as a premature and illegal act, was void ab initio. The actions of the San Diego Superior Court Clerk's Office do not and cannot override the statutory mandate. Moreover, counsel's desire to remove the case to federal court similarly cannot justify departure from the dictates of CCP §§ 400 and 399. Removal is not an absolute right and can be waived by, for example, failing to remove within thirty days of service of summons and the complaint. See 28 U.S.C. § 1446(b). If counsel had wished to preserve his ability to remove this case, he could have removed this case to the U.S. District Court for the Northern District of California and then brought before that court a motion to change venue to the U.S. District Court for the Southern District of California.
Counsel contends that had they first removed this case to the Northern District, they would have been deemed to have waived any objections to improper venue. Counsel cites Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 97 L. Ed. 1331, 73 S. Ct. 900 (1953) and Schwarzer, Tashima and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, § 2:1048 (1955).
However, a close reading of Polizzi does not bear out counsel's contention. The case held simply that the venue of removed actions is governed by 28 U.S.C. § 1441(a), and stated that that section "expressly provides that the proper venue of a removed action is 'the district court of the United States for the district and division embracing the place where such action is pending.'" 345 U.S. at 666. The statements by the Polizzi Court do not mention waiver and the case does not hold that waiver of a venue objection based on other federal venue statutes is necessarily implied from the mere act of removal. Without more, Polizzi and § 1441(a) simply stand for the proposition that the initial venue of a removed action lies in the district court where the action had been pending.
Indeed, it has been sated that "it is well settled that the filing of a removal petition in a diversity action, without more, does not waive the right to object in federal court to the state court venue." Lambert v. Kysar, 983 F.2d 1110, 1113 n.2 (1st Cir. 1993) citing Moss v. Atlantic Coast Line R.R. Co., 157 F.2d 1005 (2d Cir. 1946) cert. denied, 330 U.S. 839, 91 L. Ed. 1286, 67 S. Ct. 980 (1947). See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 240-241, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981), where a removed case was transferred under 28 U.S.C. § 1404(a) and then dismissed altogether by the federal transferee court based on common law forum non conveniens.
Where the purported transfer of this case from San Mateo Superior Court to San Diego Superior Court was illegal and void, this case was not pending in San Diego County Superior Court at the time defendants filed their Notice of Removal. Where San Diego Superior Court in reality received no case from San Mateo Superior Court, San Diego Superior Court had no case to be removed to this Court. This Court, having validly received no case upon defendants' filing of their Notice of Removal, finds that -- while it may have but the simulacrum of this case before it -- this case is not pending in this Court. To the extent that the simulacrum is here, the Court dismisses it without prejudice. Meanwhile, according to the parties, the actual case now resides in the San Diego Superior Court, having been transferred eventually pursuant to the provisions of CCP §§ 400 and 339.
B. The OSC re: Sanctions
The Court declines to award sanctions against defendants. Based on the Fears Declaration, supra, defense counsel may have initiated contacts with the San Diego Superior Court's Clerk's Office which led to a premature and ineffective transfer, but the Court is unwilling to find defendants' counsel's conduct sanctionable.
The Court hereby dismisses this case number on the grounds there is no case or controversy before this Court, and declines to award sanctions against defense counsel. In light of the dismissal of the case, plaintiff's pending motion to transfer venue is denied as moot, and defendant's pending request for sanctions is denied.
IT IS SO ORDERED.
DATED: FEB 16 1996
Rudi M. Brewster
UNITED STATES DISTRICT JUDGE