What Is Jurisdiction?

Jurisdiction refers in general to a court’s ability and authority to decide a case brought before it.

Jurisdiction Over Subject Matter

Subject matter jurisdiction pertains to the court’s ability to hear cases regarding specific types of claims. There are many different types of courts on the trial level, including criminal court, civil court, small claims court, Surrogate’s court, bankruptcy court, and family court. In some cases, it will be obvious which court should hear your claim, but for others, the plaintiff will need to submit their matter to a court that is authorized to hear the claim under the applicable law where the claim is filed.²

Why There Are Laws on Jurisdiction

Jurisdiction is an important principle in criminal law. These laws ensure that a local community can police itself and dictact how crimes occurring in the area are prosecuted. In addition, prosecuting crimes locally is significantly more convenient for all parties, including victims, witnesses, police officers and even the defendant. This is why the law generally limits criminal prosecutions to the county in which the crime occurred.

What Is Venue?

Venue means the location—which district or county in a state or the U.S.—where the lawsuit will take place.¹ Venue is typically decided by the law, but will most often be where the events leading up to the claim took place.¹⁰

In a criminal case, “venue” refers to the county or district where a case will be decided. Jurisdiction is a related, but broader concept. It refers to the legal authority to hear a case. Venue, on the other hand, refers to the precise location where the case will be heard. So, for example, the state of California might have jurisdiction over a case, while a court within Los Angeles may be the venue for it.

Statutes, constitutional provisions, and court rules set the rules for venue. Many state constitutions guarantee a defendant the right to be tried by an impartial jury in the county where the crime occurred.

Proving Venue

Some states consider venue a fact that the prosecution must prove in order to obtain a valid conviction. So, the prosecution might have to prove, for example, that the county courthouse where the proceedings are occurring is the proper place. Some states don’t require the prosecutor to prove venue unless the defendant presents some evidence that the venue is wrong.

Other states view venue as nothing more than a choice of the most appropriate location—a choice that doesn’t affect the validity of the proceedings.

How to Prove It

In states that require the prosecution to prove venue (those that consider it a “jurisdictional fact”), failing to prove venue may lead to case dismissal or an invalid conviction.

Proving that venue is proper typically means proving where the alleged crime occurred. Circumstantial evidence may be enough to prove where the acts in question happened, or direct testimony might establish that venue is proper. For instance, a sheriff’s deputy might testify that:

• he works in a particular county
• his patrol area is from point X to point Y in the county, and
• he observed the crime while on patrol, in between points X and Y.

That testimony would probably be enough to prove venue.

In federal court, the prosecution must prove venue merely by a preponderance of evidence. (“Venue” in a federal criminal case typically refers to the “district” of prosecution; see this U.S. Courts overview.) Some states use the same standard, but most use “beyond a reasonable doubt.” Under either standard, the prosecution can easily prove venue with one witness’s testimony that the crime occurred within the relevant city, county, or federal district.

Uncertain Venue

Again, venue is usually the county or district where the crime occurred. But what if a crime takes place in more than one place? In a state case, if different parts of a crime occur in different counties, the following may go toward determining venue:

• the nature of the offense
• where the elements of the crime took place
• where the criminal act took effect.

The Basics of Venue 

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…” Federal Criminal Rule 18 echoes the same requirement: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.”

Because some statutes do not define where a crime is committed, the Supreme Court has explained that “[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.”[1] Venue is proper only where the acts constituting the offense—the crime’s “essential conduct elements”—took place.[2]

The government must prove that venue is proper in the district of indictment and only by a preponderance of the evidence—not beyond a reasonable doubt. And it’s a question of law for the judge to decide before trial, not a question for the jury.

Defense lawyers should routinely scrutinize indictments, and investigate separately, whether venue is appropriate where DOJ brought the case. If there is a meritorious argument to dismiss the indictment, then that motion should be filed as soon as possible in the case. Rule 12(a)(3) says that improper venue motions “must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.”

The Fortenberry Case

In 2004, Jeffrey Fortenberry was elected to Congress to represent Nebraska’s 1^st District. He was a very popular congressmember in his district: winning about 70% of the general election vote in 2014 and 2016, and then about 60% in 2018 and 2020.

In 2015, the Federal Bureau of Investigation began an investigation into whether a foreign national had made illegal contributions to several election campaigns. According to the indictment, the foreign national made illegal “conduit” contributions to Mr. Fortenberry at a fundraiser he held in Los Angeles in 2016.

During the investigation, the FBI interviewed Mr. Fortenberry two times: once in Lincoln, Nebraska (not in California), and once in Washington, DC (also not in California). Mr. Fortenberry was indicted in the Central District of California for allegedly making false or misleading statements during those two interviews. His defense counsel filed a motion to dismiss based on improper venue. He noted that the Ninth Circuit had not addressed where venue is proper in a false statements case, but that the Tenth and Eleventh Circuits had both held that venue was proper where the allegedly false statements were made because they were the “essential elements” of the offense.

The trial court denied the motion, finding that because the government had to prove that the false statements were “material” and because the government’s theory of “materiality” was that they had affected the California-based investigation, venue was proper in California. Here is the entirety of the facts that allowed DOJ to bring the case in California, according to the district court:

The investigation into Defendant’s activities by federal officials in this district arose out of a fundraiser that he conducted in Los Angeles. Defendant was interviewed twice—in Nebraska and Washington, D.C., respectively—about those activities in Los Angeles. And Defendant directed his activities to the Central District of California when he contacted federal investigators in this district to request a second interview.

The case proceeded to trial. A jury convicted Mr. Fortenberry, the court sentenced him to two years of probation, and he resigned his seat in Congress. But Mr. Fortenberry continued to fight the convictions and appealed them to the Ninth Circuit.

The Ninth Circuit Decision

The Ninth Circuit reversed the district court.[3] It explained that the text of Section 1001 “plainly identifies the essential conduct of a Section 1001 offense to be the making of a false statement.” It rejected the government’s argument that materiality is an “essential conduct element” of Section 1001. It also found that DOJ should not have been permitted to prosecute these false statements based on the location of the government action that the statements could potentially influence.

The court of appeals explained that although prosecutors must prove the false statements’ materiality beyond a reasonable doubt, “the inquiry that determines venue is different.” The venue inquiry “turns on the action by the defendant that is essential to the offense, and where that specific action took place.”

In sum, the Ninth Circuit held that “materiality is not an essential conduct element of a Section 1001 violation” and thus the location of the false statement determines venue, not the location that supposedly makes the statement “material.”

Is This the End of the Prosecution of Mr. Fortenberry?

Even though the appellate court reversed his convictions in California, DOJ could indict him again in Nebraska or Washington DC. The statute of limitations is five years. But DOJ will have to move quickly. The Nebraska interview was in March 2019 and the Washington interview as in July 2019, so the respective statues will run in March 2024 and July 2024, respectively.

Practice Tips When Venue Is Questionable

Most white-collar investigations begin long before indictment. Defense counsel should always consider contesting venue during pre-indictment negotiations. This point is particularly salient in public corruption cases where a client may be well-known and well-liked in a particular jurisdiction. (The opposite could also be true; it goes without saying that you shouldn’t challenge venue in a place where your client is more popular than another possible place.) In a case like Mr. Fortenberry’s, though, where a client is popular in a particular place, challenging venue is an essential pretrial strategy.

Challenging venue may be a two-step process: a motion to dismiss for lack of venue and, if that fails, a motion to transfer venue. Even if venue is technically proper in two places, a defendant can move to transfer venue to a different location under Rule 21(b). Under that rule, “the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.”

The Supreme Court has established 10-factor test to evaluate venue transfer motions: (1) location of the defendant; (2) location of witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) disruption of the defendant’s business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket conditions in each district; and (10) any other specific element which might affect the transfer.[4]

The trial court—unsurprisingly—denied Mr. Fortenberry’s motion to transfer venue. Still, it was a valid argument to make and defense counsel should make as many meritorious arguments before trial as possible to preserve issues for appeal.

One final note: The Department of Justice’s website contains a lengthy press release from 2021 touting Mr. Fortenberry’s indictment, and a second press release from 2022 about his conviction. Given the reversal of the convictions, DOJ should update this page to reflect that its convictions have been reversed. The fac that DOJ does not update its websites to reflect when convictions have been reversed—or with other information that surely relevant to any reader of their website—remains a travesty of justice that I’ve noted before on this blog.

[1] United States v. Cabrales, 524 U.S. 1, 6-7 (1998)

[2] See United States v. Rodriguez–Moreno, 526 U.S. 275, 280 (1999).

[3] United States v. Fortenberry, 89 F.4th 702 (9th Cir. 2023).

[4] Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964).

Changing Venue

Despite the principles above, a defendant can ask a court to change venue. State laws and court rules explain how to seek a change of venue, and may also impose deadlines. source

It is always important to establish proper venue, and easy to overlook. A criminal scenario may have all the required elements, all the witnesses and evidence, and no viable defense, but if territorial jurisdiction is lacking, the case cannot move forward. And California’s patchwork of counties can make this issue a particularly thorny one for prosecutors.

Typically such situations are very fact-specific. In Orange County recently, a case was filed alleging felony violations of burglary in the second degree and identity theft against two defendants who had used credit cards in West Covina (Los Angeles County) that had previously been stolen in Dana Point (Orange County). The fraudulent purchases occurred on the same day as the original burglary. In the course of the investigation, the co-defendant was positively identified from store surveillance video, but his accomplice remained unknown. A week later, the named defendant returned to the store to make additional purchases with the stolen card, and was eventually identified through his rental car’s license plate number.

At the preliminary hearing, the Orange County burglary posed an obvious venue problem for the prosecution in Los Angeles County. Generally, venue is proper “in any competent court within the jurisdictional territory of which is committed.” (Pen. Code, § 777). In mixed-jurisdiction cases, Penal Code section 781 provides, “when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory.” The magistrate, however, found that nothing tied the named defendant to crimes in Orange County, with no evidence that a burglary (or any preparatory act) was committed by him there.

On appeal, the Fourth Appellate District noted some identity theft-specific provisions in the general venue statutory scheme. For instance, Penal Code section 786, subdivision (b)(1) states that in such cases, venue is proper “’in the county where the theft of the personal identifying information occurred,’ among other places.” (See, e.g., People v. Posey (2004) 32 Cal.4th 193 at 218). But the court affirmed the magistrate’s holding, reasoning that there were simply no facts from which to conclude that the named defendant was in Orange County the day of the burglary, or that he had been involved in some way. The court even rejected the prosecution’s creative “reasonable inference” argument (unexplained possession of stolen property could lead a reasonable person to entertain a strong suspicion that the possessor either stole it or received it with knowledge of its stolen character), citing People v. Jackson(1970) 14 Cal.App.3d 57, 63.

Proper venue is a question of law to be determined by the court prior to trial. It may be challenged by demurrer, or it may be raised at the preliminary hearing. (Pen. Code, §1004, subd. (1); People v. Remington (1990) 217 Cal.App.3d 423). The prosecution bears the burden to establish the facts underlying the venue by a preponderance of evidence. (People v. Posey, supra, 32 Cal.4th at 213).

The lesson for prosecutors is that there are no shortcuts to building a case on both sides of the county line. Without evidence, the burglary charge in the neighboring county cannot meet even the relatively low burden of proof here.

The case is People v. Watkins (2022) 78 Cal.App.5th 903. For more on venue and jurisdiction, see CEB’s California Criminal Law Procedure and Practice, chapter 15.

Paul Myslin

Content Attorney at CEB – Continuing Education of the Bar

It is always important to establish proper venue, and easy to overlook. A criminal scenario may have all the required elements, all the witnesses and evidence, and no viable defense, but if territorial jurisdiction is lacking, the case cannot move forward. And California’s patchwork of counties can make this issue a particularly thorny one for prosecutors.

Typically such situations are very fact-specific. In Orange County recently, a case was filed alleging felony violations of burglary in the second degree and identity theft against two defendants who had used credit cards in West Covina (Los Angeles County) that had previously been stolen in Dana Point (Orange County). The fraudulent purchases occurred on the same day as the original burglary. In the course of the investigation, the co-defendant was positively identified from store surveillance video, but his accomplice remained unknown. A week later, the named defendant returned to the store to make additional purchases with the stolen card, and was eventually identified through his rental car’s license plate number.

At the preliminary hearing, the Orange County burglary posed an obvious venue problem for the prosecution in Los Angeles County. Generally, venue is proper “in any competent court within the jurisdictional territory of which is committed.” (Pen. Code, § 777). In mixed-jurisdiction cases, Penal Code section 781 provides, “when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory.” The magistrate, however, found that nothing tied the named defendant to crimes in Orange County, with no evidence that a burglary (or any preparatory act) was committed by him there.

On appeal, the Fourth Appellate District noted some identity theft-specific provisions in the general venue statutory scheme. For instance, Penal Code section 786, subdivision (b)(1) states that in such cases, venue is proper “’in the county where the theft of the personal identifying information occurred,’ among other places.” (See, e.g., People v. Posey (2004) 32 Cal.4th 193 at 218). But the court affirmed the magistrate’s holding, reasoning that there were simply no facts from which to conclude that the named defendant was in Orange County the day of the burglary, or that he had been involved in some way. The court even rejected the prosecution’s creative “reasonable inference” argument (unexplained possession of stolen property could lead a reasonable person to entertain a strong suspicion that the possessor either stole it or received it with knowledge of its stolen character), citing People v. Jackson(1970) 14 Cal.App.3d 57, 63.

Proper venue is a question of law to be determined by the court prior to trial. It may be challenged by demurrer, or it may be raised at the preliminary hearing. (Pen. Code, §1004, subd. (1); People v. Remington (1990) 217 Cal.App.3d 423). The prosecution bears the burden to establish the facts underlying the venue by a preponderance of evidence. (People v. Posey, supra, 32 Cal.4th at 213).

The lesson for prosecutors is that there are no shortcuts to building a case on both sides of the county line. Without evidence, the burglary charge in the neighboring county cannot meet even the relatively low burden of proof here.

The case is People v. Watkins (2022) 78 Cal.App.5th 903. For more on venue and jurisdiction, see CEB’s California Criminal Law Procedure and Practice, chapter 15. source

Which County Will Prosecute – Crime Happened in 2 Counties?

Which County Will Prosecute – Crime Happened in 2 Counties?

It is not uncommon in the Los Angeles area for a client of ours to make sales of narcotics in Orange, Los Angeles, Riverside, Ventura and / or San Bernardino County, especially when sales are made over the phone by text messages and delivery men are used.  The issue that naturally arises once one is caught is where will one be prosecuted?

In a Nutshell:  In a case where a police decoy in Ventura County agrees to buy heroin from someone located in Los Angeles County, venue was proper in Ventura County although the exchange of money for the drug and the delivery of the drug took place in Los Angeles County.

This is a significant issue because the various counties have significant differences in how they punish narcotics offenses.  However, other offenses also have widely varying punishment, too.

Penal Code Section § 777 gives some direction on this issue.  It states that “the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed. 

Penal Code Section § 781 also clarifies the answer, saying that when the acts or effects constituting a requisite to the consummation of the offense take place in two counties, the jurisdiction for prosecution of such an offense is in either county.

Penal Code Section 784.7 – Assumption of Jurisdiction – It is a general legal principle that a person is tried in the local jurisdiction where the crime occurred

source

When the Case Was Initially Filed in An Improper County

The details of California’s choice-of-venue framework are beyond the scope of this article.  That said, upon initial receipt of a case, counsel should take a moment to carefully analyze the allegations of the complaint as to venue, to determine whether potential grounds for transfer via this method exist.

Code of Civil Procedure section 396b provides for mandatory transfer of a case that has been filed in the wrong court. Such a motion must be made at the outset of a case, in the time to file a responsive pleading.[i]  A motion to transfer on these grounds is made in the transferor court.[ii]

No default may be taken against a party that has filed a motion to transfer while the motion is pending.[iii]  On such a motion it is the moving defendant’s burden to present declarations to establish why the filing court was improper.[iv]  The motion is granted when the defendant negates the grounds for a venue in the county of filing by the plaintiff.[v]

A situation can arise when a plaintiff selects a venue under Code of Civil Procedure section 395, subdivision (a), which allows an action to be filed in the county in which the defendant resides. Importantly, under this provision, in a multiple defendant case, the action can be filed in a county where any defendant resides.[vi]  This creates a potential for a plaintiff to name a “sham” defendant—a defendant against which the plaintiff does not intend to actually prevail, but rather was named solely to permit filing in that defendant’s county of residence.

California caselaw is thin on a defendant’s ability to overcome this tactic, but at least one older case exists, Minyard v. Superior Court.[vii]  In Minyard, the plaintiff, Holt, filed a complaint in the City & County of San Francisco, alleging she had been injured when the taxicab in which she was riding collided with a pickup truck in the City of Napa, located in Napa County.[viii]  She named as defendants Yellow Cab Company, Minyard, Titmus, and Langer.[ix]  She alleged Yellow Cab Company, Minyard, and Titmus owned and operated the taxi in which she was riding, and that Langer owned and operated the pickup truck.[x]  Langer moved to change venue to Napa County, and the trial court denied his motion.[xi]  The court of appeal then granted a writ of mandate and ultimately held the motion should have been granted.[xii]

Minyard based its decision on the uncontested evidence which was presented with the motion.  This evidence established the accident occurred in Napa County; Minyard was the owner of the taxi; his employee, Titmus, was driving it at the time of the accident; Langer was the owner and driver of the pickup truck; and Minyard, Titmus, and Langer were residents of Napa County.[xiii]  The evidence further established that, while the corporate defendant Yellow Cab Company was a resident of San Francisco, Minyard had been operating his own separate business called “Yellow Cab Co.” in the City of Napa.[xiv]  The motion was also supported by an affidavit from an officer of Yellow Cab Company, stating it did not own the taxi involved in the accident.

Thus, as Minyard explained, “[w]ithout the inclusion of Yellow Cab Company, a corporation, as a defendant there could not possibly be any question that Langer had a clear right to the requested change of venue.”[xv]  The trial court had, however, concluded because the face of the complaint alleged that Yellow Cab Company was responsible for the accident, it was bound to treat venue in San Francisco as proper.[xvi]

Minyard held this was error.  Rather, as Code of Civil Procedure section 395 provides, “if any person is improperly joined as a defendant, …his residence must not be considered in determining the proper place for trial of the action.”[xvii]  Minyard explained how this applies in two situations, both when a complaint fails to state a cause of action against a defendant, and “where the nonresident moving party concedes that a cause of action is formally alleged against the resident defendant but claims that the cause of action, in reality, does not exist.”[xviii]  As the uncontroverted evidence before the court established that the sole defendant creating venue in San Francisco had been improperly sued, Minyard concluded that the matter should have been transferred.[xix]  Minyard itself followed two older cases, Karst v. Seller, and Lachman Co. v. Central Cal. Berry Growers’ Assn.[xx], in reaching its conclusion.  Minyard does not appear to have ever been cited a subsequent case, and no known case appears to contradict its conclusion or approach. It thus remains mandatory, binding authority.[xxi]  Accordingly, in a “sham” defendant situation, if available at the first outset of a case, defense counsel should consider obtaining appropriate supporting declarations to argue under Minyard the “sham” defendant should not be considered for venue purposes.

Additionally, Code of Civil Procedure section 397, subdivision (a), also provides for discretionary transfer of a case filed in the wrong county.  The important difference of this mechanism—besides its discretionary instead of mandatory nature—is that it may be filed at any reasonable time, unaffected by the strict timing requirements of Code of Civil Procedure section 396b.[xxii]  Transfer under this statute may therefore be viable when later factual development establishes grounds to attack a “sham” defendant.

For the Convenience of Non-Party Witnesses

Code of Civil Procedure section 397, subdivision (c), together with Code of Civil Procedure section 396b, subdivision (d), also provides for discretionary transfer for “the convenience of witnesses and the ends of justice would be promoted by the change.”[xxiii]  A motion to transfer on these grounds is made in the transferor court.[xxiv]

There is a critical limitation on transfer on these grounds, however: the parties’ conveniences are not considered—even if they are to testify.[xxv]  Similarly, the convenience of counsel[xxvi], expert witnesses[xxvii], and employees of parties are not considered[xxviii].  Note, however, this limitation does not apply when the employee is being called to testify by the opposing party.[xxix]

An important procedural consideration on a motion for transfer for convenience of witnesses is it must be made within a “reasonable” time after all defendants have answered; note therefore in a multi-defendant case it is necessary to wait for all defendants to resolve any potential pre-answer law and motion and answer.[xxx]  What constitutes a “reasonable” time depends on the facts of each case.[xxxi]

Accordingly, when defense counsel believes there is a potential for transfer on these grounds, they should endeavor to identify and make contact with potentially cooperative non-party witnesses.  The goal is to obtain declarations from these witnesses to support a motion to transfer.  Please note these supporting declarations are required to show (1) the names of each witness expected to testify for both parties; (2) the substance of their expected testimony; (3) whether the witness has been deposed or has given a statement regarding the facts of the case (and if so, the date of the deposition or statement); (4) the reasons why it would be “inconvenient” for the witnesses to appear locally; and (5) the reasons why the “ends of justice” would be promoted by transfer to a different county.[xxxii]  The declarations in support of the motion to transfer must contain admissible evidence; a change of venue cannot be based on declarations consisting of hearsay and conclusions.[xxxiii]  Accordingly, a motion should not be supported by a declaration by counsel alone—rather, declarations from the witnesses themselves should be obtained.

When a Related Case Is Pending in Another County

On some occasions, a case will be filed when a related case is already pending in another county.  There is a critical gateway question for transfer on these grounds: whether one or both of the cases has been designated as “complex” under the criteria given by California Rules of Court rule 3.400.  The transfer of complex cases is governed by Code of Civil Procedure section 404, and the transfer of non-complex cases is governed by Code of Civil Procedure section 403.

Inter-county transfer of complex cases under Code of Civil Procedure section 404 is a cumbersome procedure, and results in the formation of a Judicial Council Coordinated Proceeding.  This procedure is initiated by a petition for coordination submitted to the Chairperson of the Judicial Council and will ultimately result in the assignment of all related cases to specific judge in a specific county, referred to as the Coordination Trial Judge.  Further discussion of the procedural intricacies of initiating a Judicial Council Coordinated Proceeding is beyond the scope of this article.

A significantly more streamlined procedure, however, exists for the transfer of related non-complex cases under Code of Civil Procedure 403.  A motion for transfer under this statute is made before the transferee judge. The standard for transfer and coordination pursuant to Section 403 is given by Code of Civil Procedure section 404.1, which provides:

Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.[xxxiv]

Procedurally, before bringing a motion to transfer on these grounds, a party is required to make a “good-faith effort” to obtain the agreement of all parties to the proposed transfer and coordination and notify all parties of an obligation to disclose to the court any information they have concerning any other motions requesting transfer of any case that would be affected by the motion.[xxxv]  When filing such a motion, in addition to being filed to be ruled upon by the transferee court, must be served on all parties to each action, and on the transferor court.[xxxvi]  Additionally, the motion must be supported by a declaration establishing (1) the cases involved meet the criteria for coordination set forth in the statute, (2) the cases are non-complex, (3) the moving party complied with the meet-and-confer requirement discussed above, and (4) the moving party provided the notification regarding other potentially related cases discussed above.

There is a third scenario, not clearly contemplated by the Code of Civil Procedure—whether a non-complex case be transferred for coordination with a complex case.  Tyson & Mendes attorneys have successfully argued this is indeed possible.

The relevant portion of Code of Civil Procedure section 403 reads:

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.[xxxvii]

Most notably, the word “actions” is pluralized in Code of Civil Procedure section 403.  On a plain reading, therefore, Section 403 could potentially permit the transfer of a non-complex case for coordination with a complex case.  There appears to be no published decision by any California court addressing the construction of Code of Civil Procedure section 403.

Arguing from general rules of statutory construction, Tyson & Mendes attorneys have successfully argued the choice of the legislature to pluralize the word “actions” in Code of Civil Procedure section 403 means the statute can be to be used to transfer a non-complex case for coordination with a complex case. Thus, a defendant may be able to transfer a non-complex case for coordination with a complex case while avoiding the cumbersome procedures involving the Judicial Council under Code of Civil Procedure section 404.  With careful analysis of the specific factual and procedural circumstances of a case, defense counsel may be able to neutralize plaintiff’s inherent advantage of initial choice of venue, and effect transfer of case to a more favorable county. source

read more on Jurisdiction below:

Judge’s Jurisdiction – Judicial Ethics for Pro Se Litigants (click here)

If I want to change a custody or visitation order, do I have to go back to the same court that made the order?

Change Of Venue California Family Law Code Of Civil Procedure 397.5

Family Law Code of Civil Procedure 397.5 is a pretty specific code section that says;
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. source

A court may, in its discretion, choose to refrain from exercising its jurisdiction to hear a case if the case may be more appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744).

On a motion for forum non conveniens 

“Forum non conveniens” is a Latin phrase that means “an inconvenient forum”. It’s a common law doctrine that allows a court to decline to exercise its jurisdiction when another court or forum may more conveniently hear a case. The doctrine allows a court to dismiss a case if it believes that the case would be better heard in another court. For example, a court might dismiss a lawsuit arising from an accident if the plaintiff files the complaint in their home state, but the witnesses and doctors are in the state where the accident occurred.

California codified this principle, known as forum non conveniens, in Code of Civil Procedure section 410.30.” Code of Civil Procedure section 410.30, subdivision (a),(2) provides as follows: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may by just.“ Courts sometimes reframe the question as whether the chosen forum is “seriously” inconvenient. The party seeking change venue has the burden of proof.

When a motion to change venue is made on the grounds of “convenience of witnesses and the ends of justice” pursuant to Code Civ. Proc. §396b, the party tendering that issue bears the burden of showing through affidavits, declarations or other admissible evidence, both the reasons it would be inconvenient for witnesses to attend, and the materiality of their anticipated testimony. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643, 346 P.2d 418.)

The declarations must be competent evidence, i.e. should not consist solely of hearsay, generalities and conclusions. (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845). 

Child custody: where is the proper venue for deciding child custody matters; change of venue

THE DIFFERENCE BETWEEN JURISDICTION AND VENUE IN CUSTODY MATTERS.

Jurisdiction refers to the power of courts in a particular state to make decisions about custody.  Venue refers to the particular judicial geographic area,  usually the County, within a state where the action should be filed and heard. learn more about venue here

JURISDICTION OVER CUSTODY ISSUES

Any California court has jurisdiction to make an initial decision about the custody and visitation for a minor child if the child has been living continuously in California with a parent or person acting as a parent for the six months immediately before the commencement of the proceeding involving child custody matters.

Once a California court has issued a custody order and/or judgment, California has continuing and exclusive jurisdiction over subsequent issues involving custody and visitation.  California’s jurisdiction over the modification or enforcement of the order continues until a court determines that the child and the parents no longer reside in California, or a California court determines that the child and one of the parents does not have a significant connection to California, and substantial evidence is no longer available in California concerning the child’s care, protection, training and personal relationships.

VENUE OVER CUSTODY ISSUES

Assuming the child has been living in California for six months, any California court will have jurisdiction to handle such a case, however, the county in which the action should be brought, i.e. the venue, is where at least one of the parties has resided for at least three months in the case of a divorce, and for an initial petition involving custody without a divorce, the county where the child and a parent or person acting as a parent resides.

Any post judgment issues involving custody should be brought in the county where the underlying order or judgment has been issued, subject to a motion for change of venue in appropriate circumstances.

CHANGING VENUE AT THE BEGINNING OF THE DIVORCE OR OTHER CUSTODY PROCEEDING

Assuming jurisdiction and venue is otherwise appropriate, a party may ask the court to change venue “when the convenience of witnesses and the ends of justice would be promoted by the change.“ [California Code of Civil Procedure section 397 subdivision [c], & subdivision (e).]  Note that it is the convenience of the witnesses, and not the convenience of the parties. [Although it could be argued that the convenience of the party would fall under the ends of justice rationale].

Factors considered by the court include where evidence and witnesses concerning the child’s care, protection, training and personal relationships can be found, where the children and parties reside and the general convenience of keeping or changing venue. Courts have broad discretion in making decisions around changing venue [assuming that venue is not otherwise prohibited by statute], and they are largely fact driven determinations, dependent on the particular circumstances of each case.

Typically, the motion for a change of venue must be brought early in the action, and in any and event, “within a reasonable time” after commencement of the action, or from when the reasons for the change of venue become apparent.

CHANGING VENUE AFTER THE DIVORCE JUDGMENT HAS BEEN ISSUED.

Change of venue after a divorce judgment has been issued is appropriate when both parties have moved from the county that issued the divorce judgment, “when the ends of justice and the convenience of the parties would be promoted by the change.” [California Code of Civil Procedure section 397.5] Note in this situation it is the convenience of the parties, and not just witnesses.

It is an open question whether a post judgment motion for change of venue would be appropriate when only one of the parties has moved out of the county where the divorce judgment was entered.

It certainly could be argued that since the statute dealing with a post-judgment change of venue covers situations where both parties have moved out of the county, it is implied that it is not appropriate to change the venue where only one party has moved out of the county because the legislature could have said only one party need have moved if that’s they intended to allow a change of venue in either situation.

On the other hand, if the party who has moved out of County has sole or primary custody, it is arguable that a change of venue might be warranted under the general statute dealing with the grounds for a change of venue [California Code of Civil Procedure section 397], assuming those grounds, such as the convenience of the witnesses and the ends of justice, support such a move.

Since the courts have broad discretion in deciding change of venue motions, it is likely the court’s decision either way would be upheld if challenged on appeal. source

if you are failing to get the rights you deserve and change of venue is denied and all other avenues are exhausted try looking into

CHANGE OF VENUE  [CCP §396b] – Change of Venue Form

or download the editable word file .doc here motionchangevenue

forum non conveniens

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Forum non conveniens refers to a court’s discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case. Dismissing a case on forum non conveniens grounds is not a bar for res judicata purposes and, therefore, does not prevent a plaintiff from re-filing their case in the more appropriate forum. This doctrine may be invoked by either the defendant, or sua sponte by the court.

Even if a plaintiff brings a case in an inconvenient forum, a court will not grant a forum non conveniens dismissal unless there is another forum that could hear the case and potentially recover damages. Additionally, courts will not grant a forum non conveniens dismissal where the alternative forum’s judicial system is grossly inadequate. For example, an American court would not grant a forum non conveniens dismissal where the alternative forum was Cuba.

Courts typically use a 2-part test to determine whether they will grant a defendant’s forum non conveniens motion. The first part is a balancing test of both private and public factors, and the second part looks at what adequate alternative courts are available.

• Balancing Test

  • Private Factors
    • Ease of access to evidence
    • Interest of the two parties in their connections with the respective forums
    • The plaintiff’s chosen court would be burdensome to the defendant
    • If a court finds this factor to be true, then that is often sufficient to dismiss the case and accept a forum non conveniens claim
    • Ease of obtaining witnesses
    • Enforceability of judgment
  • Public Factors
    • Whether the trial would involve multiple sets of laws, thus potentially confusing a jury
    • Having juries who may have a connection to the case
    • Local interest in having local interests heard at home
    • Having the trial in a place where state laws govern

• Adequate Alternative Inquiry Test

  • The defendant must offer an alternate court that is able to hear the case
  • The alternate court must have the ability to provide a remedy to the plaintiff

A court will typically only invoke forum non conveniens sua sponte if it meets a 2-step test:

1. The court is a seriously inappropriate forum.
2. There is a substantially more appropriate court that is available for the plaintiff’s claim.

Sometimes, courts attach conditions to forum non conveniens dismissals. For example, the court might require the defendant to waive defenses that would prevent the plaintiff from re-filing the suit in the alternative forum. Alternatively, a court might dismiss the case in favor of a foreign court, but only on the condition that the defendant allow discovery.

On appeal, forum non conveniens decisions are evaluated using an abuse of discretion standard.

The Supreme Court considered forum non conveniens in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). In that case, the Court held that so long as there was a remedy available in the alternate forum, it did not matter if the remedy was clearly insufficient. However, lower courts do not strictly follow this rule. Instead, they usually consider the adequacy of the alternative forum’s remedy as another factor to be balanced when deciding whether or not to grant a forum non conveniens dismissal.

The Supreme Court has heard two cases on the issue of forum non conveniens in recent years:

In Sinochem International Co. Ltd. v. Malaysia International Shipping Corp, the Supreme Court held that that a federal court may hear and pass a ruling on a forum non conveniens motion even if that court does not necessarily have subject-matter jurisdiction or personal jurisdiction over the case in front of the court. The Court decided that while courts typically need to consider personal jurisdiction and subject-matter jurisdiction before hearing a case on the merits, this procedure does not necessarily apply when considering non merits issues.

The second case was Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, which determined that courts should use 28 U.S.C. 1404(a), which allows for the transfer of cases between jurisdiction, for the purposes of granting a forum non conveniens motion. source

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

THE DIFFERENCE BETWEEN JURISDICTION AND VENUE IN CUSTODY MATTERS.

Jurisdiction refers to the power of courts in a particular state to make decisions about custody.  Venue refers to the particular judicial geographic area,  usually the County, within a state where the action should be filed and heard. learn more about venue here

JURISDICTION OVER CUSTODY ISSUES

Any California court has jurisdiction to make an initial decision about the custody and visitation for a minor child if the child has been living continuously in California with a parent or person acting as a parent for the six months immediately before the commencement of the proceeding involving child custody matters.

Once a California court has issued a custody order and/or judgment, California has continuing and exclusive jurisdiction over subsequent issues involving custody and visitation.  California’s jurisdiction over the modification or enforcement of the order continues until a court determines that the child and the parents no longer reside in California, or a California court determines that the child and one of the parents does not have a significant connection to California, and substantial evidence is no longer available in California concerning the child’s care, protection, training and personal relationships. source

VENUE OVER CUSTODY ISSUES

Assuming the child has been living in California for six months, any California court will have jurisdiction to handle such a case, however, the county in which the action should be brought, i.e. the venue, is where at least one of the parties has resided for at least three months in the case of a divorce, and for an initial petition involving custody without a divorce, the county where the child and a parent or person acting as a parent resides.

Any post judgment issues involving custody should be brought in the county where the underlying order or judgment has been issued, subject to a motion for change of venue in appropriate circumstances. learn more about venue here

If I want to change a custody or visitation order, do I have to go back to the same court that made the order?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Can You Transfer Your Case to Another County or State With Family Law? –
Challenges to Jurisdiction

A jurisdictional challenge is when a respondent makes a submission to challenge the adjudicator’s jurisdiction to determine a dispute. A lack of jurisdiction occurs when a court lacks the authority over a person or the subject matter of a lawsuit, or when the prerequisites for its jurisdiction have not been met.

How to Transfer Your Family Law Case to Another County or State

Family law matters can take time to resolve, anywhere between several months to over a year. During that time, your family could go through many changes. What happens in a divorce or child custody case if your spouse or co-parent moves? What if you both move away?

If the venue you originally chose for your family law case is no longer a convenient location, you can petition the court to transfer your case somewhere else. This applies to:

• Divorce, domestic partnership dissolution, or legal separation cases
• Family law cases that determine child custody or child support
• Petitions to change a previously set final divorce order or child support order

The court where you originally filed your case will approve a transfer if:

• Whoever first filed the case chose the wrong venue,
• Continuing with the current location would result in an unfair trial,
• The current venue doesn’t have a judge who is qualified to hear your case,
• You live in a different county and that court is better suited to handle your case,
• The current location is not convenient for the parties or witnesses involved, or
• Both you and your spouse, domestic partner, or co-parent agree to the transfer.

So how do you get a change of venue? The rules are slightly different if you’re moving counties versus states. The laws also change if there are any issues involving child custody or support.

How to File a Change of Venue in California Family Law

“Venue” describes the specific court where your case is filed and ultimately resolved.

U.S. law has extensive jurisdictional rules for what qualifies as a “proper” venue to file a case, depending on the people and facts involved. A knowledgeable family lawyer would be intimately familiar with these rules and can help steer you in the right direction. Your family law attorney can also help with the process of changing the venue of your case, if necessary.

To get a change of venue in a California family law case, you must file a motion for change of venue with the court where your case is currently filed. The court will consider your motion (otherwise known as a “request for order”) along with your supporting declaration.

How to Transfer Your Court Case to Another County in California

Your supporting declaration is the most important part of your motion and should not be overlooked. A well-written declaration can be the reason your transfer request gets approved.

In your supporting declaration, you must tell the court the reasons why your family’s case should be moved to another county within the state.

When deciding whether or not to allow the transfer, California courts will consider:

• The residence of the parties, witnesses, and any children who are involved,
• The physical location of most of the evidence relevant to the case, and
• The general convenience of transferring the case versus keeping it in place.

Once you’ve submitted your motion to the court, you must notify the other party, who will then get a chance to file a response if they oppose your transfer request. In their response, they can include reasons why the change of venue should not be granted.

Once the court receives the transfer motion, it will set a hearing date for both parties to answer any questions by the judge. This process is much simpler if both parties agree to the transfer.

As soon as the judge approves the transfer order, you can continue your case over at the new county where it’s been moved. You will have to pay another first appearance court filing fee.

How Do You Transfer Jurisdiction From One State to Another?

Transferring family law cases between states can get much more complicated.

Divorce and property division laws vary greatly between states. So where you file your case could make a huge impact on what you get out of the proceedings – including how much of the marital estate you keep or how much spousal support you receive. Each state also has residency requirements that you must meet before you can file there.

For example, to file a divorce petition in California, you must be a resident of the state for at least 6 months and the county where you file for 3 months. In contrast, you may be able to move to Washington state and file for divorce the next day.

The first step to transferring a divorce or legal separation between states is to establish residency according to the rules of the state you’re moving to. Only one person needs to meet the residency requirements to file in their chosen state.

However, if your case involves child custody or child support issues, the rules are different.

What About Child Support or Custody Cases?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a federal law that governs how almost every state handles child custody and support. If your divorce or legal separation involves questions of child support or custody, UCCJEA rules will apply.

The UCCJEA technically does not allow cases to be transferred from one state to another. The location of your case will depend on your child’s home state – the state where the child and at least one parent have lived for at least 6 months. If the child has lived in multiple states during that time, their home state will be the one with the “strongest ties.”

Although uncommon, your child’s home state could decline jurisdiction if you’re able to convince the court that the location would be an “inconvenient forum.” In making this decision, the court will look at where the child currently lives and the financial situation of the parents. This can happen if a child has moved to a new state within the last 6 months.

Under the UCCJEA, you can also exercise emergency jurisdiction in certain situations – for example, if your child is in danger or if the custodial parent is no longer able to care for them. In these cases, a court outside the child’s home state could take their case. However, emergency custody orders issued by a non-home state are usually temporary.

The stakes are high in family law cases and the law can get complex when you need to change the location of your case. No matter your situation, a family law attorney can help you navigate federal and state laws in order to find a convenient venue. source

Family Law Jurisdiction in California

In Rem Jurisdiction in California

In rem jurisdiction is the authority a California court has over a particular item which is the subject of the lawsuit. A family law case is an in rem proceeding, because the res or the thing is the marriage.

Can the parties involved limit the court’s authority?

In rem jurisdiction can be waived by the parties. The parties can agree in writing to waive in rem jurisdiction allowing a court to make a ruling over property.

In Rem Jurisdiction in California

In rem jurisdiction is the authority a California court has over a particular item which is the subject of the lawsuit. A family law case is an in rem proceeding, because the res or the thing is the marriage.

Can the parties involved limit the court’s authority?

In rem jurisdiction can be waived by the parties. The parties can agree in writing to waive in rem jurisdiction allowing a court to make a ruling over property. source

How to Transfer a Family Law Case to Another California County

If you’re looking to transfer a family law case to another county, you must first understand how California determines the accepted circumstances for this change.

For example, a party may seek to move any of the following types of family law cases to another venue:

• Divorce, legal separation, or annulment
• Petition to change child support order entered in a divorce
• Petition to change a final divorce order

Personal Jurisdiction

Court system

IF YOU CHILD WAS LIVING WITH YOU THAT IS THE JURISDICTION IT SHOULD BE BROUGHT TO.

if you are failing to get the rights you deserve and change of venue is denied and all other avenues are exhausted try looking into

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

What is California’s Filing Deadline for a Defamation Claim ?

California’s Filing Deadline for a Defamation Claim is one Year

You have one year to file a defamation (slander or libel) lawsuit in California. In most cases, the statute of limitations begins to run when the defendant first speaks or publishes an allegedly defamatory statement. In some cases, when a defamatory statement is hard to find or not a matter of public knowledge, it begins to run when the plaintiff discovers, or should have discovered, the defamatory statement.

California follows the “single publication” rule, which says that a publisher can only be sued— and the statute of limitations begins to run—over the original publishing of a text, not subsequent distributions or additional printings of the same statement. But if the statement is revised or repackaged for a new audience, a new statute of limitations period will likely begin.

(Cal. Civ. Code §§ 340(c), 3425.1-3425.5 (2022).)

read and learn more

Everything you need to know about a Defamation Case

$3.5 Million Emotional Distress Award Was “Shockingly Disproportionate” To Evidence Of Harm

Where Should I File a California Defamation Lawsuit?

Before you file your lawsuit, you’ll need to figure out where to file it.

If you are suing someone who lives in California or a company or organization that does business in California for defamation, a California superior court will have the authority to hear and decide your case.

You’ll have to file your lawsuit in the county where the person or entity you are suing lives or does business.

(Cal. Civ. Code §§ 392 through 403 (2022); Johnson v. Superior Court of Fresno County, 232 Cal.App.2d 212 (Cal. Ct. App. 1965).)

Like most injury claims, defamation claims are often subject to time limits known as statutes of limitations. The following list provides each state’s statute of limitations on defamation causes of actions (claims).

Important Distinctions in State Laws

Keep in mind that the statute of limitations deadline differs depending on the type of case. For instance, Florida’s two-year period to file is distinct to defamation actions. Florida statutes for other kinds of cases, like premises liability or wrongful death claims, are different. That’s because personal injury statutes of limitations depend on the underlying tort in a civil case.

Let’s consider another example. A false imprisonment or medical malpractice claim is completely different from a defamation cause of action. This is true even if these separate allegations arise from the same fact pattern or occurrences. Suppose a doctor falsely imprisoned a patient and performed an illegal surgery on them. In response, the patient may later defame the doctor. A different limitations period will apply to each wrong act, even though they all arise from the same event. Therefore, it stands to reason that states created different limitations periods for different torts.

Sometimes, a limitations period may be tolled. Tolling refers to a temporary suspension of the filing deadline. Depending on your state, this can happen for a number of reasons, including:

• Agreement by the parties or personal injury lawyers in a case
• Compliance with discovery rules during litigation
• Temporary insanity or imprisonment of a party
• Later discovery of a claim despite a plaintiff’s reasonable diligence
• The claimant’s status as an underage minor
• The unavailability of a party

Separately, criminal cases have their own applicable statute of limitations laws. This is an important distinction. Certain torts can be tried in criminal cases rather than civil cases. For example, civil sexual abuse limitations periods are distinct from their criminal counterparts. Tolling may apply to both civil and criminal statutes of limitations.

Learn More About Defamation Laws

Whether it’s written or uttered out loud, defamation can have serious and lasting effects on one’s reputation. A personal injury claim for defamation can even affect one’s emotional well-being, which can be just as bad as bodily injury.

Personal injury lawsuits for defamation must be filed within the applicable time period. That means if you’re considering a civil action for defamation, you’ll need to act within your state’s statute of limitations. Don’t delay — speak with a local defamation attorney to learn more. A personal injury attorney who practices defamation law will be able to help you enforce your legal rights. source

Venue should be thought of as a subset of jurisdiction. While personal jurisdiction is crucial to a court actually having the power to make a judgment, venue is more concerned about geographical convenience.

While each state is thought of as its own jurisdiction, there are multiple proper “venues” within each state where a case could be heard. For example, within the jurisdiction of Maryland, there are 24 separate venues (23 counties and Baltimore City.) So after it is determined that a State has personal jurisdiction over the defendant, you also have to figure out in which venue proceedings will take place.

Determining venue often looks similar to the process of figuring out personal jurisdiction, though the rules are not as strict since a state can exercise the same laws regardless of the selected venue.

For example, take a car accident case that occurred in Worcester County, Maryland with a defendant who lives in Baltimore City. Even though proper venue might be proper in Baltimore City, chances are all the witnesses and evidence will be in Worcester County. It would be a huge pain for all the witnesses to have to travel to Baltimore for the trial, and it would be even more annoying to haul the evidence all the way from Worcester County as well.

So at the end of the day, even if the case was properly filed in Baltimore City, the defendant could ask the court to move the case to Worcester County purely on convenience grounds. Because Maryland law still governs regardless of which venue is ultimately selected, personal jurisdiction is not a concern.

The Law to Determine Venue

Most states have similar laws when it comes to disputes as to what is the appropriate venue. In Maryland, a variety of factors are weighed to determine the venue that best serves “the convenience of the parties and witnesses and serves the interests of justice” under Maryland Rule 2-327(c).

These factors include:

1. the relative ease of access to sources of proof
2. availability of compulsory process for attendance of unwilling witnesses
3. the cost of obtaining the attendance of willing witnesses
4. possibility of view of premises (the subject of the action or where the incident occurred), if view would be appropriate to the action
5. all other practical problems that make trial of a case easy, expeditious, and inexpensive with the “public interests of justice,” such as
   1. considerations of court congestion
   2. the burden of jury duty
   3. local interest in the matter at hand.”

Defining Venue

The term venue refers to a proper place (county or judicial district) in which to file a lawsuit. Venue rules are developed by state courts to protect the defendant from having a case filed in an inconvenient court (for example, at the other end of the state).

Finding the Proper Venue

For venue purposes, the correct judicial district can normally be the district in which:

• the defendant resides or does business
• a contract was signed
• a contract was to be carried out
• an auto accident took place, or
• other events leading up to the lawsuit took place. source

Choosing a Venue

More than one judicial district can be the correct venue for a lawsuit. Lawyers call the process of deciding which court is best for a plaintiff’s case “forum shopping.”

As long as you abide by the above rules, you can choose the court most convenient to you. But if you don’t want the defendant to object to your choice, you may want to file the lawsuit in the court closest to where the defendant lives or does business.

General Rules Governing Venue

Pursuant to Code of Civil Procedure section 392 et. seq., a party may file an action where any one of the named defendants resides or does business and/or where the incident in question occurred. Thus, in the situation involving multiple parties, venue may be proper in more than one county. Under section 397, subdivision (a), “[w]hen the court designated in the complaint is not the proper court,” the court may “change the place of trial.” (See also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 3:550, p. 3-130 (Weil & Brown).) In addition, under section 397, subdivision (c), the court has discretion to transfer the case to another county “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change,” even if the complaint was filed in a “proper” county. (Id. at ¶ 3:553, p. 3-130.1.) It is the second type of motion that is at issue here.

If the majority of witnesses reside in the county to which the party seeks to move the case, the court will give this high consideration. “A conclusion that the ends of justice are promoted can be drawn from the fact that by moving the trial closer to the residence of the witnesses, delay and expense in court proceedings are avoided and savings in the witnesses’ time and expenses are effected.” (Pearson v. Superior Ct., City & City of San Francisco (1962) 199 Cal.App.2d 69, 77.)

Availability of Remote Testimony Is Not a Controlling Factor

In Ryck v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824, the California Court of Appeal held that the San Francisco Superior Court abused its discretion when it denied a motion to transfer venue from San Francisco to San Diego, where the motor vehicle accident at issue in the case occurred. Although most witnesses were located in California, the trial court relied on the fact the Legislature statutorily provided for remote testimony through July 1, 2023 as the primary basis for maintaining the case in San Francisco. In a published decision, the Court of Appeal reversed, ruling that the remote testimony rules may not be used as a basis to maintain a venue that does not further the interests of justice, which is the key consideration in change of venue motions.

Gallin v. Superior Court (Jeffrey) (1991)

Sandy Gallin and others (collectively Gallin) seek extraordinary relief after the court denied their motion to transfer venue. Gallin contends Los Angeles County is the proper venue because “some” individual defendants reside there, no corporate defendant has its principal place of business in San Diego County, and a “single retail sale” in San Diego is insufficient for venue in a consumer remedy class action. We determine the venue provision of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) does not override the general rule a defendant is entitled to have an action tried in the county of his or her residence. Accordingly we grant the petition and vacate the stay. The court ordered a peremptory writ issue directing the superior court to vacate its order denying the motion to transfer venue and enter a new order granting the motion. The stay issued by order dated February 8, 1991, is vacated.

What Is Abuse of Discretion?

Abuse of discretion is whether a judge’s ruling is arbitrary or unreasonable.   So the appellate judge do not do what they think is best.  Instead, they are looking at whether a reasonable judge could have ruled as the judge did.  Maryland law describes this as the “decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.   So a court’s decision on venue can only be reversed if the “ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.” source