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Cholakian & Associatess v. Superior Court (Elaine McDonold)

California Court of Appeals, Third District

April 29, 2015

CHOLAKIAN & ASSOCIATES et al., Petitioners,
v.
THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent ELAINE MCDONOLD et al., Real Parties in Interest.

ORIGINAL PROCEEDING in mandate Super. Ct. No. 34-2014-00157913-CU-IC-GDS, Robert C. Hight, Judge.

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COUNSEL

Hinshaw & Culbertson, Edward F. Donohoe, Kendra L. Basner and Jared W. Matheson for Petitioners.

No appearance for Respondent.

Dreyer Babich Buccola Wood Campora, Robert A. Buccola and Steven M. Campora for Real Parties in Interest.

OPINION

DUARTE, J.

Under Code of Civil Procedure section 396b, subdivision (a), [1] where an action has been filed in the “wrong venue, ” a defendant may move to transfer the case to the “proper court for the trial thereof.” In such a case, “if an answer is filed, ” the court may consider opposition to the motion to transfer and may retain the action in the county where filed to promote the convenience of witnesses or the ends of justice. (§ 396b, subd. (d).) The question in this case is whether, in a multi-defendant case, an answer must be filed by all defendants before the court may consider opposition to the motion to transfer venue. We conclude the answer is yes. In this case, the trial court

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considered opposition to the motion before all defendants had answered the complaint. Accordingly, we issue a preemptory writ of mandate directing the trial court to vacate its order denying the motion to transfer and to issue a new order granting the motion.

BACKGROUND

The Underlying Action

In 2010, Debra Hackett was seriously injured in an accident in Sacramento County in which a tractor and trailer owned by Silva Trucking, Inc. and driven by Elaine McDonold jackknifed and collided with the vehicle being driven by Hackett.

Silva Trucking was insured by Carolina Casualty Insurance Company (CCIC), who retained the law firm Cholakian & Associates to provide a defense. Silva Trucking had an excess liability insurance policy with Lexington Insurance Company (LIC), who retained the law firm Lewis, Brisbois, Bisgaard & Smith, LLP (Lewis Brisbois) as counsel.

Prior to filing suit, Hackett and her husband William made a settlement demand of $5 million, the policy ...


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