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Dow Agrosciences LLC v. Superior Court (Center for Environmental Health)

California Court of Appeals, First District, Fourth Division

November 6, 2017

DOW AGROSCIENCES LLC, Petitioner,
v.
THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent CENTER FOR ENVIRONMENTAL HEALTH, Real Party in Interest.

         Alameda County Super. Ct. No. RG16831788 Hon. Winifred Y. Smith

          Counsel for Petitioner: Arnold & Porter Kaye Scholer LLP, TrentonH. Norris, S. Zachary Fayne, Tiffany M. Ikeda;Dentons U.S. LLP, Stanley W. Landfair, David R. Simonton, Jessica L. Duggan

          Counsel for Real Party in Interest: Lexington Law Group, Howard Hirsch, Lucas Williams

          RUVOLO, P. J.

         I. INTRODUCTION

         This writ proceeding arises out of a dispute about the proper venue for trial of a cause of action for violating the California Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249.5 et seq. (Proposition 65 or the Act).

         Center for Environmental Health (CEH) filed a complaint in Alameda County alleging that Dow Agrosciences LLC (Dow) and other unnamed defendants are violating the Act by failing to warn individuals who live or work in the Kern County town of Shafter that a soil fumigant manufactured by Dow contains a chemical known to cause cancer. Dow responded to the complaint by filing a motion to transfer this case to Kern County, where the cause of action arose, pursuant to section 393, subdivision (a) of the Code of Civil Procedure (section 393(a).)[1] The trial court denied the motion, finding that venue is proper in any county under section 395, subdivision (a) (section 395(a)) because Dow is a nonresident defendant with no principal place of business in California.

         Dow seeks extraordinary relief from the trial court order. “Pursuant to section 400, a party aggrieved by an order granting or denying a motion to change venue may petition for a writ of mandate requiring trial of the case in the proper court. [Citation.]” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836 (Fontaine).) We conclude that section 393(a) establishes that the proper court for trial of this case is in Kern County. Therefore, we grant the petition for writ of mandate.[2]

         II. OVERVIEW OF PERTINENT VENUE RULES

         “It is well established that a defendant is entitled to have an action tried in the county of his or her residence unless the action falls within some exception to the general venue rule. [Citations.]” (Brown v. Superior Court (1984) 37 Cal.3d 477, 483 (Brown); Fontaine, supra, 175 Cal.App.4th at p. 837; see also Massae v. Superior Court (Massae) (1981) 118 Cal.App.3d 527, 531 [“ ‘policy of the law favors the right of trial at the defendant's residence' ”].)

         This general rule is codified in the first sentence of section 395(a), which states: “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 superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.”

         Section 395(a) also contains exceptions to the general venue rule. For example, actions for personal injury or injury to personal property resulting from the defendant's negligence may be filed in the county where the injury occurred, or in the county where the defendant resides. (§ 395(a).) Another provision in section 395(a), which CEH relies on in the present case, states: “If none of the defendants reside in the state or if they reside in the state and the county where they reside is unknown to the plaintiff, the action may be tried in the superior court in any county that the plaintiff may designate in his or her complaint....”

         While section 395(a) qualifies the general venue rule by establishing additional alternative venues for adjudicating certain types of actions or for filing suit against certain types of defendants, some other statutory exceptions identify a different court than the defendant's county of residence as the only proper venue for trial of a case. The most commonly used exception of this type is codified in section 392, subdivision (a) (section 392(a)).

         Section 392(a) provides that “[s]ubject to the power of the court to transfer actions and proceedings, ” the proper county for trial of an action to adjudicate rights or interests in or injuries to real property is the county “where the real property that is the subject of the action, or some part thereof, is situated.” Cases governed by section 392(a) are often characterized as “local” in nature and distinguished from cases seeking personal or “transitory” relief, which are typically governed by the general venue rule that a case should be tried in the county where the defendants or some of them reside at the time the action is commenced. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 788; see also Foundation Engineers, Inc. v. Superior Court (1993) 19 Cal.App.4th 104, 108, 111112 (Foundation Engineers); see, e.g., Massae, supra, 118 Cal.App.3d 527.)[3]

         Section 393(a), the exception relied on by Dow in the present case, also designates a court other than the superior court in the defendant's county of residence as the proper place of trial, providing in part: “Subject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the cause, or some part of the cause, arose, is the proper county for the trial of the following actions: [¶] (a) For the recovery of a penalty or forfeiture imposed by statute, except, that when it is imposed for an offense committed on a lake, river, or other stream of water, situated in two or more counties, the action may be tried in any county bordering on the lake, river, or stream, and opposite to the place where the offense was committed.”

         With these pertinent rules in mind, we turn to the venue dispute in the present case.[4]

         III. PROCEDURAL HISTORY

         A. The Complaint

         In September 2016, CEH filed a complaint in Alameda County alleging a single cause of action against Dow and 100 Doe defendants for violating Health and Safety Code section 25249.6, a provision of Proposition 65 that states: “No person in the course of doing business shall knowingly and intentionally expose an individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in [Health and Safety Code, ] [s]ection 25249.10.”

         Facts alleged in support of this claim include the following: Dow is a “person in the course of doing business within the meaning of [the Act]” who “manufactures, distributes and/or sells” a soil fumigant called “Telone, ” for sale and use in California. The Doe defendants are persons in the course of doing business who “manufacture, distribute, sell and/or use Telone in California.” The primary active ingredient in Telone is 1, 3-Dichloropropene (‘1, 3-D'), a chemical known to the State of California to cause cancer. When Telone is injected into the soil of agricultural crops, “1, 3-D quickly volatizes through the soil and moves up into the air.” Consequently, individuals who live or work in Shafter and breathe the air following applications of Telone to the soil of agricultural crops suffer inhalation exposure to a cancer causing chemical. Despite this exposure, “[n]o clear and reasonable warning is provided to individuals living or working in and around Shafter regarding the carcinogenic hazards of 1, 3-D.”

         According to the complaint, defendants are “knowingly and intentionally exposing individuals living or working in and around Shafter to 1, 3-D without first giving clear and reasonable warnings to such individuals regarding the carcinogenic toxicity of 1, 3-D.” As proof of defendants' knowledge, CEH alleges, among other things, that the labels affixed to Telone “acknowledge the ‘high acute inhalation toxicity and carcinogenicity' of Telone.” In light of this warning on the product itself, CEH “does not challenge the sufficiency of the labeling of Defendants' Telone.” Instead, CEH alleges that defendants are violating the Act because they “continue to expose individuals living or working in and around Shafter to 1, 3-D without providing prior clear and reasonable warnings regarding the carcinogenic hazards of 1, 3-D.”

         In its prayer for relief, CEH requests that the trial court (1) assess civil penalties against each defendant in the amount of $2, 500 per day for each violation of the Act; (2) enjoin defendants from exposing individuals living or working in or around Shafter to 1, 3-D without providing prior clear and reasonable warnings, as CEH shall specify in future application to the court; (3) order defendants to take action to stop the ongoing unwarned exposures; and (4) award CEH reasonable attorney fees and costs of suit. (See Health & Saf. Code, § 25249.7.)[5]

         B. The Transfer Motion

         In November 2016, Dow filed a motion to transfer this case to Kern County on the ground that the court designated in the complaint is not the “proper court” in which to conduct a trial of the Proposition 65 claim. (§ 396b, subd. (a); § 397, subd. (a).) In its complaint, CEH alleged that venue was proper in any county because Dow had not designated a principal office in California. Dow's transfer motion did not dispute that Dow is a nonresident defendant, but argued that the complaint is an action for recovery of a penalty or ...


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