The Court’s Decision

The court may, on timely motion, “change the place of trial in the following cases:

1. When the court designated in the complaint is not the proper court.
2. When there is reason to believe that an impartial trial cannot be had therein.
3. When the convenience of witnesses and the ends of justice would be promoted by the change.
4. When from any cause there is no judge of the court qualified to act.”

(Code of Civ. Proc., § 397.)

The court has to overcome this hurdle before applying those factors:

“Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Code Civ. Proc. § 395(a); Haurat v. Super. Ct. for L.A. Cty (1966) 241 Cal.App.2d 330, 333; Karson Indus., Inc. v. Super. Ct. of Contra Costa Cty (1969) 273 Cal.App.2d 7, 9.)

“Generally, the filing of a motion for change of venue operates as a supersedeas or stay of proceedings, and the court cannot rule on other substantive issues while the motion for change of venue is pending.” (Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1303-1304; Moore v. Powell (1977) 70 Cal.App.3d 583, 587; Pickwick Stages System v. Super. Ct. in and for L.A. County (1934) 138 Cal.App. 448, 449.)

“The purpose of this provision ‘is to guard against local bias that may exist in favor of litigants within a county as against those from without the county, and to ensure that both parties have a trial on neutral territory.’” (Arntz Builders v. Super. Ct. (2004) 122 Cal.App.4th 1203.)

“There is no need for a party seeking transfer to demonstrate actual prejudice because the statute ‘is designed to obviate the appearance of prejudice as well as actual prejudice or bias.’” (Id.) “[A]s the statute is remedial in its purpose, it should receive a liberal construction which will promote rather than frustrate the policy behind the law.” (Id.)

Any ambiguities in the complaint will be construed against the plaintiff towards the end that the defendant will not be deprived of the right to a trial in the county of his or her residence. (Neet v. Holmes (1942) 19 Cal.2d 605, 612.) “Failure to move for change of venue on the ground of residence at the time of demurrer or answer constitutes a waiver of the right to have venue changed.” (Hennigan v. Boren (1966) 243 Cal.App.2d 810, 816.)

How to Structure the Motion

“[I]f an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.” (Code Civ. Proc. § 396b(a).)

“The moving party must overcome the presumption that the plaintiff has selected the proper venue. The defendant has the burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds.” (Fontaine v. Super. Ct. (2009) 175 Cal.App.4th 830, 836; Archer v. Super. Ct. In and For Humboldt County (1962) 202 Cal.App.2d 417, 420; California State Parks Foundation v. Super. Ct. (2007) 150 Cal.App.4th 826, 833; Mission Imports, Inc. v. Super. Ct. (1982) 31 Cal.3d 921, 928.) The moving party may submit declarations containing admissible evidence in support of the motion to transfer venue. (Mission Imports, supra, 31 Cal.3d at 928.) Absent “an affirmative showing to the contrary, the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action.” (Id.)

Convenience of Witnesses

“It is well settled that a motion for change of venue grounded upon the convenience of witnesses rests largely in the discretion of the trial court.” (Wrin v. Ohlandt (1931) 213 Cal. 158, 159.)

“Convenience of witnesses” may be shown by the fact that the residence of all witnesses is in the county to which the transfer is requested. (Richfield Hotel Management, Inc. v. Super. Ct. (1994) 22 Cal.App.4th 222, 227.)

The declaration must show that each witness’s testimony is material, necessary, and admissible. (J.C. Millett Co. V. Latchford-Marble Glass Co. (1959) 167 Cal.App.2d 218, 225; Edwards v. Pierson (1957) 156 Cal.App.2d 72, 75; Harden v. Skinner & Hammond (1955) 130 Cal.App.2d 750, 755.) It must also state why it would be inconvenient for these witnesses to appear in the court in which the action in pending but need not show that the witnesses reside in the proposed transferee county because the crucial factor is their convenience and not their residency. (Willingham v. Pecora (1941) 44 Cal.App.2d 289, 294.)

Where a party moves to transfer venue based on the convenience of witnesses, it must submit affidavits showing the names of each witness expected to testify for both parties, the substance of their expected testimony, whether the witness has been deposed or given a statement, the reasons why it would be inconvenient for the witnesses to appear, and the reasons why the ends of justice would be promoted by transfer to a different county. (Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16; Edwards v. Pierson (1957) 156 Cal.App.2d 72, 75.)

Response

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Super. Ct. (1984) 37 Cal.3d 477, 482.) A plaintiff’s choice of venue is presumed to be correct. (Thielen v. Super. Ct. of L.A. County (1963) 219 Cal.App.2d 217, 218.)

Statute of Limitations

A motion to transfer venue pursuant to 397(c) may be made within a “reasonable time.” (Cooney v. Cooney (1944) 25 Cal.2d 202, 208.)