California Court of Appeals, First District, Fourth Division
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 ...