Wednesday, April 29, 2015

Cholakian & Assocs. v. Superior Court (Cal. Ct. App. - April 29, 2015)

This opinion is right.  Although the underlying doctrinal predicate is silly.

The Court of Appeal grants a peremptory writ of mandate, so it involves a mistake that's worth knowing about.  The question is this:  When plaintiff files in the wrong venue in a multiparty case, and defendants move to transfer venue, can the trial court keep the lawsuit in the current forum "for the convenience of witnesses and parties" if one of the defendants has already filed an answer, or must all of them have filed an answer to allow preservation of the current venue?

The Court of Appeal says it's the latter.  Which is, in my view, the correct interpretation of the statute.  For all the reasons Justice Duarte articulates.

That said, to me, the underlying rule makes no sense.

The California rule is apparently that you've got to transfer venue if venue's improper so long as no one has yet filed an answer; however, once the defendant answers, the improper venue somehow can become "proper," or at least the case can stay there.  I prefer the federal rule, which says otherwise; a case can't be transferred to (or retained in) an improper venue as long as the defendant objects.  That's a rule that most preserves the valuable objectives protected by the venue rules.

But even if you didn't prefer the federal rule, why would you make the disposition of the transfer motion depend on the happenstance of whether the defendant has filed an answer?  Defendant says he doesn't want the case here and wants to preserve his rights.  Why does it matter whether he's gone through the formality of also filing an answer?

California's answer -- reflected in Justice Duarte's opinion -- is that only once you've filed an answer can the trial court "really" determine where the convenience of witnesses exists.  So before defendant files an answer, we can't tell what place is more convenient, since we don't really know what the fight is about, and hence are compelled to transfer the case to a proper forum, but after an answer is filed, we suddenly can tell what place is more convenient.

This isn't something that Justice Duarte has made up.  It preexists today's opinion.  Though it's the doctrinal theory that Justice Duarte (understandably) follows in coming to this morning's conclusion.

This doctrinal underpinning seems to me entirely bunk.

You can't figure out what place is "really" most convenient before an answer?!  Nonsense.  Even before an answer, the parties will file competing declarations -- as they do in federal court -- that articulate the central disputes and where the parties and witnesses exist.  You simply evaluate those submissions and apply the law.  Straightforward.  You don't need an answer for that.  You just need the arguments and evidence of the parties.

Similarly, what's so magical about the answer?  We all know what it's going to say:  Deny, Deny, Deny, etc.  Especially in California, which typically allows general denials, so it's essentially totally meaningless.  The answer doesn't truly give you any information at all.  Certainly not about what the "real" disputes are between the parties.  And in those rare -- and I mean rare -- cases in which the content of the answer actually matters (e.g., an admission to liability), you're assuredly going to get that in the venue declarations anyway.

In short, I understand why we still have answers.  But to pretend that they actually impart information -- much less information that's "critical" to deciding a venue transfer motion -- is absurd.

I'm hoping that someone eventually takes a look at this.  It's not that it's a critical issue; we can deal with nonsensical rules in this area and still live tolerable lives.

But it's nonetheless embarrassing.  And worth a change.

P.S. - Justice Duarte's opinion repeatedly refers to it as a "preemptory writ of mandate".  That's not unusual; I count 91 cases in the Court of Appeal -- and five in the California Supreme Court (though none since 1995) -- using this same terminology.  But I'm pretty sure (having now consulted Section 1087) that it's actually a "peremptory" writ of mandate.  Which also seems the dominant usage;  863 times in the California Supreme Court, and 6,331 times in the Court of Appeal.