Aquino v. Superior Court of Alameda Cnty.

73 Cal.App.5th 104

288 Cal.Rptr.3d 141

Anthony Caesar AQUINO et al., Petitioner,

v.The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;

April Scott, Real Party in Interest.

A162836

Court of Appeal, First District, Division 5, California.

December 23, 2021

Stone & Associates, Colette F. Stone, and Ronald F. Berestka Jr., Walnut Creek; Law Office of Shawn C. Moore, Douglas Wood, Walnut Creek; Hassard Bonnington, Peter Mallon, San Francisco, for Petitioner.

No appearance for Respondent.

Alan Charles Dell'Ario, Napa; The Tillis Law Firm, Shawn Tillis, Oakland; Winer, Burritt, & Scott, John D. Winer, Oakland, for Real Party in Interest.

NEEDHAM, J.

Anthony Caesar Aquino, Pacific Ocean Auto Parts Co., and Reed Jobs seek extraordinary writ relief from an order denying their motion to change venue under Code of Civil Procedure section 397.¹ They contend the trial court should have granted their motion because, while venue was originally proper based on the location of an accident allegedly caused by one of the defendants (§ 395), it became improper once the defendant who caused that accident was dismissed from the case. Petitioners further contend the court erred in ruling that they waived their right to challenge venue.

As a threshold matter, the parties debate whether the petition was timely filed in this court. We conclude that the superior court clerk's service of a document containing both the order denying the motion to change venue and a declaration of service satisfied the requirements for written notice under section 1013a, thereby commencing the period for filing the petition under section 400. Petitioners’ failure to file their petition by the end of that period rendered their petition untimely, whether or not real party in interest should have also given notice of the order under section 1019.5. Accordingly, the petition will be dismissed.

I. FACTS AND PROCEDURAL HISTORY

A. Scott's Complaint

On July 30, 2018, April Scott (Scott) filed a complaint in Alameda County Superior Court against Reed Jobs (Jobs), Jennie Forni (Forni), Anthony Caesar Aquino (Aquino), Pacific Ocean Auto Parts Co. (Pacific Ocean Auto), and others, alleging that Scott was involved in three separate automobile accidents in three different counties in 2017 and could not determine which accident caused her injuries.

According to the complaint, the first accident occurred in April 2017 in San Mateo County, when Jobs was unable to stop his car in time and struck the rear end of a vehicle that collided with Scott's vehicle. The second accident occurred on August 2017 in Alameda County, when Scott was rear-ended by Forni after traffic came to a stop on I-880. The third accident occurred in September 2017 in Contra Costa County, when Scott was rear-ended on southbound I-680 by a car that had been struck by Aquino, who was employed by, and working in the scope of his employment with, Pacific Ocean Auto.

In filing her complaint in Alameda County, Scott based venue on the location of the Forni accident. (See § 395 [venue proper in personal injury action in the county where the injury occurred or where any defendant resides].) None of the defendants resided in Alameda County at the time the complaint was filed.

Jobs answered the complaint and filed a cross-complaint against other defendants including Aquino and Pacific Ocean Auto, seeking indemnity, apportionment, and declaratory relief. Aquino and Pacific Ocean Auto answered the complaint and filed a cross-complaint against Jobs and other defendants. Jobs, Aquino and Pacific Ocean Auto alleged an affirmative defense of improper venue in their answers.

B. Settlement and Dismissal as to Forni

In August 2020, Scott settled her case as to the Forni defendants and sought a judicial determination that the settlement was made in good faith (§§ 877, 877.6). Aquino and Pacific Ocean Auto challenged the settlement; Jobs did not. The court issued a good faith settlement determination in October 2020, and an order dismissing the Forni defendants was filed in December 2020.

C. Petitioners’ Motion to Transfer Venue

After the dismissal of Forni, the remaining defendants—petitioners Jobs, Aquino, and Pacific Ocean Auto—filed a motion to transfer venue to Santa Clara County, where Aquino and Pacific Ocean Auto reside, pursuant to section 397. Petitioners asserted that they had not waived their right to challenge venue and, with the dismissal of the Forni defendants, venue could no longer be based on the location of the Forni collision.

Scott opposed the motion, arguing that it was untimely and that the dismissal of Forni did not provide a basis for a venue change.

The court issued a tentative ruling denying the motion. After a hearing, the court signed (electronically) a written order denying the motion on May 12, 2021. The court concluded that petitioners had waived their right to challenge venue because they filed cross-complaints and Aquino and Pacific Ocean Auto had opposed Forni's good faith settlement application.

The court also concluded that the motion to challenge venue could not be based on Forni's dismissal.

As discussed in greater detail ante , the superior court clerk served the parties with a copy of the court's order and a declaration of service, which indicated that the order was mailed and the declaration was executed on May 12, 2021. According to evidence provided by petitioners, the clerk's envelope bore a metered postage date of May 13, 2021.

Petitioners did not file their writ petition in this court until June 11, 2021. We obtained briefing from the parties, who each proposed conflicting interpretations of the relevant statutes. We decided writ review should be granted to resolve questions of first impression of importance to the bench and bar, which bear not only on petitioners’ claims but also future cases, including the timeliness of petitions to this court for extraordinary writ review. ( Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 129–130, 142 Cal.Rptr. 325 ; see also Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274, 258 Cal.Rptr. 66.) "[G]iven that the petition raised a question of first impression appropriate for resolution in a published opinion, we deliberately chose to issue an OSC [order to show cause] instead of an alternative writ, since the latter procedure would have permitted reversal of the challenged order with the undesirable result of potentially rendering the issue moot." ( Paul Blanco's Good Car Company Auto Group v. Superior Court (2020) 56 Cal.App.5th 86, 99, 270 Cal.Rptr.3d 164, internal citation omitted.) Pursuant to our order to show cause, real party in interest Scott filed a return and petitioners filed a reply.

II. DISCUSSION

The petition gives rise to three issues: (1) was the petition timely filed in this court; (2) did petitioners waive their right to challenge venue in the trial court; and (3) where venue is proper at the commencement of the action based on the location of the injury (§ 395), does the matter become subject to transfer on the ground of improper venue under section 397 if the defendants allegedly responsible for that injury have been dismissed pursuant to a good faith settlement determination. We need address only the first issue to resolve the petition.

A. Applicable Law

Whether a writ petition was timely filed in this court constitutes a threshold jurisdictional issue; if the petition was not timely filed, it must be dismissed. ( People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675, 683–684, 3 Cal.Rptr.2d 375.)

The time to file a petition for writ review of an order denying a motion to "change the place of trial" ( § 397 ) is set forth in section 400. Section 400 provides in relevant part: "When an order is made by the superior court granting or denying a motion to change the place of trial, the party aggrieved by the order may, within 20 days after service of a written notice of the order , petition the court of appeal for the district in which the court granting or denying the motion is situated for a writ of mandate requiring trial of the case in the proper court. The superior court may, for good cause, and prior to the expiration of the initial 20-day period, extend the time for one additional period not to exceed 10 days." (Italics added.) The salient question here is whether the clerk's service of the order and declaration of service constituted "service of a written notice of the order" under section 400 and, if so, whether the petition was filed within 20 days thereafter.

B. The Clerk's Written Notice and the Petitioners’ Filing

The clerk served the parties with a copy of the court's May 12 order and an attached Declaration of Service by Mail that was signed on May 12, 2021. The clerk's declaration reads as follows:

Superior Court of California, County of Alameda Hayward Hall of Justice

Case Number: RG18915604

Order After Hearing Re: of 05/12/2021

DECLARATION OF SERVICE BY MAIL

I certify that I am not a party to this cause and that a true and correct copy of the foregoing document was mailed first class, postage prepaid, in a sealed envelope, addressed as shown on the foregoing document or on the attached, and that the mailing of the foregoing and execution of this certificate occurred at 24405 Amador Street, Hayward, California.

   Executed on 05/12/2021
                  Chad Finke Executive Officer/Clerk of the Superior Court
                                By ________
                                   Deputy Clerk

As certified by the court clerk, the "foregoing document" (the order) "was mailed" as of the date the clerk executed the declaration on May 12, 2021. Based on this May 12 date, and counting 20 days pursuant to section 400 plus five days for mailing pursuant to section 1013, subdivision (a), the period for filing the petition would have elapsed on June 6, 2021; since June 6 was a Sunday, the last day to file the petition was Monday, June 7, 2021 (§ 12a). (Although the clerk's envelope bore a metered...