SECTIONS 392-403 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 392-403

392. (a) Subject to the power of the court to transfer actions and
proceedings as provided in this title, the superior court in the
county where the real property that is the subject of the action, or
some part thereof, is situated, is the proper court for the trial of
the following actions:
(1) For the recovery of real property, or of an estate or interest
therein, or for the determination in any form, of that right or
interest, and for injuries to real property.
(2) For the foreclosure of all liens and mortgages on real
property.
(b) In the court designated as the proper court in subdivision
(a), the proper court location for trial of a proceeding for an
unlawful detainer, as defined in Section 1161, is the location where
the court tries that type of proceeding that is nearest or most
accessible to where the real property that is the subject of the
action, or some part thereof, is situated. Otherwise any location of
the superior court designated as the proper court in subdivision (a)
is a proper court location for the trial. The court may specify by
local rule the nearest or most accessible court location where the
court tries that type of case.

393. 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.
(b) Against a public officer or person especially appointed to
execute the duties of a public officer, for an act done by the
officer or person in virtue of the office, or against a person who,
by the officer's command or in the officer's aid, does anything
touching the duties of the officer.

394. (a) An action or proceeding against a county, or city and
county, a city, or local agency, may be tried in the county, or city
and county, or the county in which the city or local agency is
situated, unless the action or proceeding is brought by a county, or
city and county, a city, or local agency, in which case it may be
tried in any county, or city and county, not a party thereto and in
which the city or local agency is not situated. Except for actions
initiated by the local child support agency pursuant to Section
17400, 17402, 17404, or 17416 of the Family Code, any action or
proceeding brought by a county, city and county, city, or local
agency within a certain county, or city and county, against a
resident of another county, city and county, or city, or a
corporation doing business in the latter, shall be, on motion of
either party, transferred for trial to a county, or city and county,
other than the plaintiff, if the plaintiff is a county, or city and
county, and other than that in which the plaintiff is situated, if
the plaintiff is a city, or a local agency, and other than that in
which the defendant resides, or is doing business, or is situated.
Whenever an action or proceeding is brought against a county, city
and county, city, or local agency, in any county, or city and county,
other than the defendant, if the defendant is a county, or city and
county, or, if the defendant is a city, or local agency, other than
that in which the defendant is situated, the action or proceeding
must be, on motion of that defendant, transferred for trial to a
county, or city and county, other than that in which the plaintiff,
or any of the plaintiffs, resides, or is doing business, or is
situated, and other than the plaintiff county, or city and county, or
county in which that plaintiff city or local agency is situated, and
other than the defendant county, or city and county, or county in
which the defendant city or local agency is situated; provided,
however, that any action or proceeding against the city, county, city
and county, or local agency for injury occurring within the city,
county, or city and county, or within the county in which the local
agency is situated, to person or property or person and property
caused by the negligence or alleged negligence of the city, county,
city and county, local agency, or its agents or employees, shall be
tried in that county, or city and county, or if a city is a
defendant, in the city or in the county in which the city is
situated, or if a local agency is a defendant, in the county in which
the local agency is situated. In that action or proceeding, the
parties thereto may, by stipulation in writing, or made in open
court, and entered in the minutes, agree upon any county, or city and
county, for the place of trial thereof. When the action or
proceeding is one in which a jury is not of right, or in case a jury
is waived, then in lieu of transferring the cause, the court in the
original county may request the chairperson of the Judicial Council
to assign a disinterested judge from a neutral county to hear that
cause and all proceedings in connection therewith. When the action or
proceeding is transferred to another county for trial, a witness
required to respond to a subpoena for a hearing within the original
county shall be compelled to attend hearings in the county to which
the cause is transferred. If the demand for transfer is made by one
party and the opposing party does not consent thereto, the additional
costs of the nonconsenting party occasioned by the transfer of the
cause, including living and traveling expenses of the nonconsenting
party and material witnesses, found by the court to be material, and
called by the nonconsenting party, not to exceed five dollars ($5)
per day each in excess of witness fees and mileage otherwise allowed
by law, shall be assessed by the court hearing the cause against the
party requesting the transfer. To the extent of that excess, those
costs shall be awarded to the nonconsenting party regardless of the
outcome of the trial. This section shall apply to actions or
proceedings now pending or hereafter brought.
(b) For the purposes of this section, "local agency" shall mean
any governmental district, board, or agency, or any other local
governmental body or corporation, but shall not include the State of
California or any of its agencies, departments, commissions, or
boards.

395. (a) 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. If the action is for injury to
person or personal property or for death from wrongful act or
negligence, the superior court in either the county where the injury
occurs or the injury causing death occurs or the county where the
defendants, or some of them reside at the commencement of the action,
is a proper court for the trial of the action. In a proceeding for
dissolution of marriage, the superior court in the county where
either the petitioner or respondent has been a resident for three
months next preceding the commencement of the proceeding is the
proper court for the trial of the proceeding. In a proceeding for
nullity of marriage or legal separation of the parties, the superior
court in the county where either the petitioner or the respondent
resides at the commencement of the proceeding is the proper court for
the trial of the proceeding. In a proceeding to enforce an
obligation of support under Section 3900 of the Family Code, the
superior court in the county where the child resides is the proper
court for the trial of the action. In a proceeding to establish and
enforce a foreign judgment or court order for the support of a minor
child, the superior court in the county where the child resides is
the proper court for the trial of the action. Subject to subdivision
(b), if a defendant has contracted to perform an obligation in a
particular county, the superior court in the county where the
obligation is to be performed, where the contract in fact was entered
into, or where the defendant or any defendant resides at the
commencement of the action is a proper court for the trial of an
action founded on that obligation, and the county where the
obligation is incurred is the county where it is to be performed,
unless there is a special contract in writing to the contrary. 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, and, if the
defendant is about to depart from the state, the action may be tried
in the superior court in any county where either of the parties
reside or service is made. If any person is improperly joined as a
defendant or has been made a defendant solely for the purpose of
having the action tried in the superior court in the county where he
or she resides, his or her residence shall not be considered in
determining the proper place for the trial of the action.
(b) Subject to the power of the court to transfer actions or
proceedings as provided in this title, in an action arising from an
offer or provision of goods, services, loans or extensions of credit
intended primarily for personal, family or household use, other than
an obligation described in Section 1812.10 or Section 2984.4 of the
Civil Code, or an action arising from a transaction consummated as a
proximate result of either an unsolicited telephone call made by a
seller engaged in the business of consummating transactions of that
kind or a telephone call or electronic transmission made by the buyer
or lessee in response to a solicitation by the seller, the superior
court in the county where the buyer or lessee in fact signed the
contract, where the buyer or lessee resided at the time the contract
was entered into, or where the buyer or lessee resides at the
commencement of the action is the proper court for the trial of the
action. In the superior court designated in this subdivision as the
proper court, the proper court location for trial of a case is the
location where the court tries that type of case that is nearest or
most accessible to where the buyer or lessee resides, where the buyer
or lessee in fact signed the contract, where the buyer or lessee
resided at the time the contract was entered into, or where the buyer
or lessee resides at the commencement of the action. Otherwise, any
location of the superior court designated as the proper court in this
subdivision is a proper court location for the trial. The court may
specify by local rule the nearest or most accessible court location
where the court tries that type of case.
(c) Any provision of an obligation described in subdivision (b)
waiving that subdivision is void and unenforceable.

395.1. Except as otherwise provided in Section 17005 of the Probate
Code pertaining to trustees, when a defendant is sued in an official
or representative capacity as executor, administrator, guardian,
conservator, or trustee on a claim for the payment of money or for
the recovery of personal property, the county which has jurisdiction
of the estate which the defendant represents shall be the proper
county for the trial of the action.

395.2. If an unincorporated association has filed a statement with
the Secretary of State pursuant to statute, designating its principal
office in this state, the proper county for the trial of an action
against the unincorporated association is the same as it would be if
the unincorporated association were a corporation and, for the
purpose of determining the proper county, the principal place of
business of the unincorporated association shall be deemed to be the
principal office in this state listed in the statement.

395.5. A corporation or association may be sued in the county where
the contract is made or is to be performed, or where the obligation
or liability arises, or the breach occurs; or in the county where the
principal place of business of such corporation is situated, subject
to the power of the court to change the place of trial as in other
cases.

396. (a) No appeal or petition filed in the superior court shall be
dismissed solely because the appeal or petition was not filed in the
proper state court.
(b) If the superior court lacks jurisdiction of an appeal or
petition, and a court of appeal or the Supreme Court would have
jurisdiction, the appeal or petition shall be transferred to the
court having jurisdiction upon terms as to costs or otherwise as may
be just, and proceeded with as if regularly filed in the court having
jurisdiction.

396a. In a case that is subject to Sections 1812.10 and 2984.4 of
the Civil Code, or subdivision (b) of Section 395 of the Code of
Civil Procedure, or in an action or proceeding for an unlawful
detainer as defined in Section 1161 of the Code of Civil Procedure:
(a) The plaintiff shall state facts in the complaint, verified by
the plaintiff's oath, or the oath of the plaintiff's attorney, or in
an affidavit of the plaintiff or of the plaintiff's attorney filed
with the complaint, showing that the action has been commenced in the
proper superior court and the proper court location for the trial of
the action or proceeding, and showing that the action is subject to
the provisions of Sections 1812.10 and 2984.4 of the Civil Code or
subdivision (b) of Section 395 of the Code of Civil Procedure, or is
an action for an unlawful detainer. When the affidavit is filed with
the complaint, a copy thereof shall be served with the summons.
Except as provided in this section, if the complaint or affidavit is
not filed pursuant to this subdivision, no further proceedings may
occur in the action or proceeding, except to dismiss the action or
proceeding without prejudice. However, the court may, on terms that
are just, permit the affidavit to be filed after the filing of the
complaint, and a copy of the affidavit shall be served on the
defendant and the time to answer or otherwise plead shall date from
that service.
(b) If it appears from the complaint or affidavit, or otherwise,
that the superior court or court location where the action or
proceeding is commenced is not the proper court or court location for
the trial, the court where the action or proceeding is commenced, or
a judge thereof, shall, whenever that fact appears, transfer it to
the proper court or court location, on its own motion, or on motion
of the defendant, unless the defendant consents in writing, or in
open court (consent in open court being entered in the minutes of the
court), to the keeping of the action or proceeding in the court or
court location where commenced. If that consent is given, the action
or proceeding may continue in the court or court location where
commenced. Notwithstanding Section 1801.1 and subdivision (f) of
Section 2983.7 of the Civil Code, that consent may be given by a
defendant who is represented by counsel at the time the consent is
given, and if an action or proceeding is subject to subdivision (b)
of Section 395 or is for an unlawful detainer, that consent may only
be given by a defendant who is represented by counsel at the time the
consent is given.
(c) In any case where the transfer of the action or proceeding is
ordered under subdivision (a) or (b), if summons is served prior to
the filing of the action or proceeding in the superior court or court
location to which it is transferred, as to any defendant, so served,
who has not appeared in the action or proceeding, the time to answer
or otherwise plead shall date from service upon that defendant of
written notice of the filing.
(d) If it appears from the complaint or affidavit of the plaintiff
that the superior court and court location where the action or
proceeding is commenced are a proper court and court location for the
trial thereof, all proper proceedings may be had, and the action or
proceeding may be tried in that court at that location.
(e) A motion for a transfer of the action or proceeding to a
different superior court may be made as in other cases, within the
time, upon the grounds, and in the manner provided in this title, and
if upon that motion it appears that the action or proceeding is not
pending in the proper court, or should for other cause be
transferred, the action or proceeding shall be ordered transferred as
provided in this title.
If any action or proceeding is ordered transferred to another
court as provided in this section, proceedings shall be had, and the
costs and fees shall be paid, as provided in Sections 398 and 399.
(f) If a motion is made for transfer of an action or proceeding to
a different court location within the same superior court as
provided in this section, proceedings shall be had as provided by
local rules of the superior court.

396b. (a) Except as otherwise provided in Section 396a, if an
action or proceeding is commenced in a court having jurisdiction of
the subject matter thereof, other than the court designated as the
proper court for the trial thereof, under this title, the action may,
notwithstanding, be tried in the court where commenced, unless the
defendant, at the time he or she answers, demurs, or moves to strike,
or, at his or her option, without answering, demurring, or moving to
strike and within the time otherwise allowed to respond to the
complaint, files with the clerk, a notice of motion for an order
transferring the action or proceeding to the proper court, together
with proof of service, upon the adverse party, of a copy of those
papers. Upon the hearing of the motion the court shall, if it appears
that the action or proceeding was not commenced in the proper court,
order the action or proceeding transferred to the proper court.
(b) In its discretion, the court may order the payment to the
prevailing party of reasonable expenses and attorney's fees incurred
in making or resisting the motion to transfer whether or not that
party is otherwise entitled to recover his or her costs of action. In
determining whether that order for expenses and fees shall be made,
the court shall take into consideration (1) whether an offer to
stipulate to change of venue was reasonably made and rejected, and
(2) whether the motion or selection of venue was made in good faith
given the facts and law the party making the motion or selecting the
venue knew or should have known. As between the party and his or her
attorney, those expenses and fees shall be the personal liability of
the attorney not chargeable to the party. Sanctions shall not be
imposed pursuant to this subdivision except on notice contained in a
party's papers, or on the court's own noticed motion, and after
opportunity to be heard.
(c) The court in a proceeding for dissolution of marriage or legal
separation or under the Uniform Parentage Act (Part 3 (commencing
with Section 7600) of Division 12 of the Family Code) may, prior to
the determination of the motion to transfer, consider and determine
motions for allowance of temporary spousal support, support of
children, and counsel fees and costs, and motions to determine
custody of and visitation with children, and may make all necessary
and proper orders in connection therewith.
(d) In any case, if an answer is filed, the court may consider
opposition to the motion to transfer, if any, and may retain the
action in the county where commenced if it appears that the
convenience of the witnesses or the ends of justice will thereby be
promoted.
(e) If the motion to transfer is denied, the court shall allow the
defendant time to move to strike, demur, or otherwise plead if the
defendant has not previously filed a response.

397. The court may, on motion, change the place of trial in the
following cases:
(a) When the court designated in the complaint is not the proper
court.
(b) When there is reason to believe that an impartial trial cannot
be had therein.
(c) When the convenience of witnesses and the ends of justice
would be promoted by the change.
(d) When from any cause there is no judge of the court qualified
to act.
(e) When a proceeding for dissolution of marriage has been filed
in the county in which the petitioner has been a resident for three
months next preceding the commencement of the proceeding, and the
respondent at the time of the commencement of the proceeding is a
resident of another county in this state, to the county of the
respondent's residence when the ends of justice would be promoted by
the change. If a motion to change the place of trial is made pursuant
to this paragraph, the court may, prior to the determination of such
motion, consider and determine motions for allowance of temporary
spousal support, support of children, temporary restraining orders,
attorneys' fees, and costs, and make all necessary and proper orders
in connection therewith.

397.5. In any proceeding for dissolution or nullity of marriage or
legal separation of the parties under the Family Code, where it
appears that both petitioner and respondent have moved from the
county rendering the order, the court may, when the ends of justice
and the convenience of the parties would be promoted by the change,
order that the proceedings be transferred to the county of residence
of either party.

398. If, for any cause, specified in subdivisions 2, 3 and 4 of
section 397, the court orders the transfer of an action or
proceeding, it must be transferred to a court having jurisdiction of
the subject matter of the action which the parties may agree upon, by
stipulation in writing, or made in open court and entered in the
minutes or docket; or, if they do not so agree, then to the nearest
or most accessible court, where the like objection or cause for
making the order does not exist.
If an action or proceeding is commenced in a court, other than one
designated as a proper court for the trial thereof by the provisions
of this title, and the same be ordered transferred for that reason,
it must be transferred to any such proper court which the parties may
agree upon by stipulation in writing, or made in open court and
entered in the minutes or docket; if the parties do not so agree,
then to any such proper court in the county in which the action or
proceeding was commenced which the defendant may designate, or, if
there be no such proper court in such county, to any such proper
court, in a proper county, designated by the defendant; if the
parties do not so agree, and the defendant does not so designate the
court, as herein provided, or where the court orders the transfer of
an action on its own motion as provided in this title, to such proper
court as the court in which the action or proceeding is pending may
determine.
The designation of the court by the defendant, herein provided
for, may be made in the notice of motion for change of venue or in
open court, entered in the minutes or docket, at the time the order
for transfer is made.

399. (a) When an order is made transferring an action or proceeding
under any of the provisions of this title, the clerk shall, after
expiration of the time within which a petition for writ of mandate
could have been filed pursuant to Section 400, or if a writ petition
is filed after judgment denying the writ becomes final, and upon
payment of the costs and fees, transmit the pleadings and papers
therein (or if the pleadings be oral a transcript of the same) to the
clerk of the court to which the same is transferred. When the
transfer is sought on any ground specified in subdivision (b), (c),
(d), or (e) of Section 397, the costs and fees thereof, and of filing
the papers in the court to which the transfer is ordered, shall be
paid at the time the notice of motion is filed, by the party making
the motion for the transfer. When the transfer is sought solely, or
is ordered, because the action or proceeding was commenced in a court
other than that designated as proper by this title, those costs and
fees (including any expenses and attorney's fees awarded to the
defendant pursuant to Section 396b) shall be paid by the plaintiff
before the transfer is made; and if the defendant has paid those
costs and fees at the time of filing a notice of motion, the same
shall be repaid to the defendant, upon the making of the transfer
order. If those costs and fees have not been so paid by the plaintiff
within five days after service of notice of the transfer order, then
any other party interested therein, whether named in the complaint
as a party or not, may pay those costs and fees, and the clerk shall
thereupon transmit the papers and pleadings therein as if those costs
and fees had been originally paid by the plaintiff, and the same
shall be a proper item of costs of the party so paying the same,
recoverable by that party in the event that party prevails in the
action; otherwise, the same shall be offset against and deducted from
the amount, if any, awarded the plaintiff in the event the plaintiff
prevails against that party in the action. The cause of action shall
not be further prosecuted in any court until those costs and fees
are paid. If those costs and fees are not paid within 30 days after
service of notice of the transfer order, or if a copy of a petition
for writ of mandate pursuant to Section 400 is filed in the trial
court, or if an appeal is taken pursuant to Section 904.2, then
within 30 days after notice of finality of the order of transfer, the
court on a duly noticed motion by any party may dismiss the action
without prejudice to the cause on the condition that no other action
on the cause may be commenced in another court prior to satisfaction
of the court's order for costs and fees. When a petition for writ of
mandate or appeal does not result in a stay of proceedings, the time
for payment of those costs shall be 60 days after service of the
notice of the order.
(b) At the time of transmittal of the papers and pleadings, the
clerk shall mail notice to all parties who have appeared in the
action or special proceeding, stating the date on which transmittal
occurred. Promptly upon receipt of the papers and pleadings, the
clerk of the court to which the action or proceeding is transferred
shall mail notice to all parties who have appeared in the action or
special proceeding, stating the date of the filing of the case and
number assigned to the case in the court.
(c) The court to which an action or proceeding is transferred
under this title shall have and exercise over the same the like
jurisdiction as if it had been originally commenced therein, all
prior proceedings being saved, and the court may require amendment of
the pleadings, the filing and service of amended, additional, or
supplemental pleadings, and the giving of notice, as may be necessary
for the proper presentation and determination of the action or
proceeding in the court.

400. 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. The petitioner shall file a copy of the petition
in the trial court immediately after the petition is filed in the
court of appeal. The court of appeal may stay all proceedings in the
case, pending judgment on the petition becoming final. The clerk of
the court of appeal shall file with the clerk of the trial court, a
copy of any final order or final judgment immediately after the order
or judgment becomes final.

401. (1) Whenever it is provided by any law of this State that an
action or proceeding against the State or a department, institution,
board, commission, bureau, officer or other agency thereof shall or
may be commenced in, tried in, or removed to the County of
Sacramento, the same may be commenced and tried in any city or city
and county of this State in which the Attorney General has an office.
(2) Whenever it is provided by any law of this State that the
State or a department, institution, board, commission, bureau,
officer or other agency thereof shall or may commence an action or
proceeding in the County of Sacramento, the same, on motion of the
defendants or some of them, shall be removed for trial to the county
or city and county in which the Attorney General has an office
nearest to the county in which the defendants or some of them reside
or have their principal office in this State.

402. (a) Except as otherwise provided by law:
(1) A superior court may specify by local rule the locations where
certain types of actions or proceedings are to be filed.
(2) A superior court may specify by local rule the locations where
certain types of actions or proceedings are to be heard or tried.
(3) A superior court may not dismiss a case, and the clerk may not
reject a case for filing, because it is filed, or a person seeks to
file it, in a court location other than the location specified by
local rule. However, the court may transfer the case on its own
motion to the proper court location.
(b) A superior court may transfer an action or proceeding filed in
one location to another location of the superior court. This section
does not affect the authority of the presiding judge to apportion
the business of the court as provided by the California Rules of
Court.

403. A judge may, on motion, transfer an action or actions from
another court to that judge's court for coordination with an action
involving a common question of fact or law within the meaning of
Section 404. The motion shall be supported by a declaration stating
facts showing that the actions meet the standards specified in
Section 404.1, are not complex as defined by the Judicial Council and
that the moving party has made a good faith effort to obtain
agreement to the transfer from all parties to each action. Notice of
the motion shall be served on all parties to each action and on each
court in which an action is pending. Any party to that action may
file papers opposing the motion within the time permitted by rule of
the Judicial Council. The court to which a case is transferred may
order the cases consolidated for trial pursuant to Section 1048
without any further motion or hearing.
The Judicial Council may adopt rules to implement this section,
including rules prescribing procedures for preventing duplicative or
conflicting transfer orders issued by different courts.