Sun. Jul 21st, 2024

What Is Jurisdiction? Jurisdition vs Venue?

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 1st 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.


Establishing Venue When Crime Crosses County Lines

Paul MyslinPaul 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

 


15 Change of Venue

§15.3 III. VENUE AND JURISDICTION DISTINGUISHED

“Venue” and “jurisdiction” are sometimes used interchangeably. See, e.g.,Pen C §1462.2, which uses “jurisdiction” instead of “venue.” Venue means the territorial jurisdiction in which a case may be brought to trial and which can be conferred by consent of the parties. People v Douglas (1990) 50 C3d 468, 497 (territorial jurisdiction existed in county where murder was arranged and where defendant met victims and accomplice); People v Crise (1990) 224 CA3d Supp 1 (conviction reversed because defendant tried under Health & S C §11550 in county unrelated to one where conduct occurred). Territorial jurisdiction can refer to a county or a judicial district within a county. Pen C §691(c).

In contrast, jurisdiction refers to the inherent power of a court to hear and determine a case. Jurisdiction is composed of two elements, personal and subject matter jurisdiction. Burns v Municipal Court (1961) 195 CA2d 596, 599. Subject matter jurisdiction refers to a court’s inherent power to hear and determine a case of a particular class. Original subject matter jurisdiction is conferred on California courts by Cal Const art VI, §10. Subject matter jurisdiction can neither be waived nor be conferred by consent or stipulation. Griggs v Superior Court (1976) 16 C3d 341, 344 n2. Any judgment without subject matter jurisdiction is void. Taliaferro v County of Contra Costa (1960) 182 CA2d 587. 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)