Opinion
12-22-1969
The REGENTS OF the UNIVERSITY OF CALIFORNIA, a public corporation, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Kenneth L. KARST, David Kaplan, Douglas Glasgow, Webster Moore, Harry Deutsch, and Angela Y. Davis, Real-Parties in Interest. Civ. 35485.
Thomas J. Cunningham, Berkeley, Donald L. Reidhaar, San Francisco, Warren S. Levin and William H. McKenzie, for petitioner. Charles H. Phillips, Richard H. Borow, Margolis, McTernan, Smith, Scope & Herring, John T. McTernan and Barry Nakell, Los Angeles, for real parties in interest.
The REGENTS OF the UNIVERSITY OF CALIFORNIA, a public corporation, Petitioner,
v.
The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;
Kenneth L. KARST, David Kaplan, Douglas Glasgow, Webster Moore, Harry Deutsch, and Angela Y. Davis, Real-Parties in Interest.
Thomas J. Cunningham, Berkeley, Donald L. Reidhaar, San Francisco, Warren S. Levin and William H. McKenzie, for petitioner.
No appearance for respondent.
Charles H. Phillips, Richard H. Borow, Margolis, McTernan, Smith, Scope & Herring, John T. McTernan and Barry Nakell, Los Angeles, for real parties in interest.
PER CURIAM.
The petitioner, the Regents of the University of California, a public corporation, seeks mandamus to compel the respondent Superior Court of Los Angeles County to order the action transferred to Alameda County pursuant to the provisions of section 400 of the Code of Civil Procedure.
On October 3, 1969, real parties in interest Karst, Kaplan, Glasgow, Moore and Deutsch filed in the Superior Court of Los Angeles County a taxpayers' action against the Regents of the University of California, a corporation. By the first cause of action the plaintiffs sought a declaratory judgment that certain resolutions of the Regents of October 11, 1940, June 24, 1949, and April 21, 1950, expressing the policy that any member of the Communist Party was barred from employment by the University of California, were invalid under the First and Fourteenth Amendments to the Constitution of the United States and that the expenditure of tax monies in the implementation of such resolutions constituted an impermissible use of public funds. It was alleged that a resolution had been adopted by the Regents on or about September 19, 1969, directing the president of the university to take steps to terminate the appointment as a faculty member at the university's Los Angeles campus of Angela Y. Davis who, in response to an inquiry by the university, had stated that she was then a member of the Communist Party; that termination proceedings were pending before a faculty Committee on Privilege and Tenure on the Los Angeles campus; and that by 'virtue of all of the foregoing, the University is now expending, and will continue to expend, tax monies in the implementation of the constitutionally invalid resolutions of October 11, 1940, June 24, 1949, and April 21, 1950.'
The second cause of action incorporated by reference all of the allegations of the first cause of action and contained further allegations as follows: 'Defendant University is continuing and threatening, unless restrained, to continue to do the acts and things hereinbefore complained of. Said acts are causing, and unless restrained, will continue to cause irreparable injury and damage to plaintiffs as taxpayers, in that said expenditures, once made, can never thereafter be recouped. Plaintiffs have no adequate remedy at law with respect to such injury and damage.'
On October 7, 1969, the plaintiffs in the taxpayers' action filed a notice of a motion for summary judgment to be made on October 20, 1969. (Code Civ.Proc, § 437c.) The ground of the motion was stated to be that there was no defense to the action. With respect to the constitutional contention, reliance was primarily placed on the reasoning of Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 and Vogel v. County of Los Angeles, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961.
On October 9, 1969, pursuant to leave of the court, Angela Y. Davis filed a complaint in intervention. Therein she adopted by reference the major portion of the complaint theretofore filed. She alleged that there was no issue of fact before the Committee on Privilege and Tenure and the Regents with respect to the matter of her termination for the reason that she had admitted the only fact alleged in the statement of charges, to wit, her membership in the Communist Party. She further alleged that the proceedings to terminate her employment were directed to the accomplishment of unconstitutional objects in that her constitutional rights, which she specified in detail, would thereby be violated. The intervenor further alleged: 'By reason of the facts alleged herein Intervenor has an interest in the subject matter of the Complaint and Intervenor claims what is sought in said Complaint; any determination of said subject matter and said claims must directly and unavoidably affect Intervenor's interest in her employment, her right to teach, and her freedom of expression and association.'
On October 10, 1969, the defendant, the Regents of the University of California, filed a notice of a motion for change of venue to be made on October 20, 1969, the order sought being a transfer of the action to the Superior Court of Alameda County on the ground that the causes of action alleged in the complaint were transitory in nature and that at the time of the commencement of the action the defendant, the Regents of the University of California, was a legal resident of Alameda County. An affidavit of merits and of residence and points and authorities were filed in support of the motion. On the same date the defendant filed a general demurrer as to each cause of action, a memorandum of points and authorities in opposition to plaintiffs' motion for summary judgment, and the declaration of Thomas J. Cunningham in opposition to the motion for summary judgment. No answer to the complaint was filed.
On the date on which the defendant's documents were filed, October 10, 1969, the plaintiff in intervention, having obtained an order shortening time for service, filed a notice of motion for summary judgment to be made on October 20, 1969, together with points and authorities and a declaration in support thereof.
On October 16, 1969, the plaintiffs filed their 'Reply Memorandum of Points and Authorities on Motion for Summary Judgment' and six 'Reply Declarations.' On the same date the plaintiffs filed their memorandum of points and authorities and a declaration in opposition to the defendant's motion for change of venue. On that date the plaintiff in intervention also filed a memorandum of points and authorities in opposition to the defendant's motion for change of venue, and, in addition, a memorandum of points and authorities in opposition to the demurrer. On October 17, 1969, pursuant to an order shortening time, the plaintiff in intervention filed a declaration of Donald Kalish in opposition to the defendant's motion for change of venue.
On October 17, 1969, the defendant filed a memorandum of points and authorities in opposition to the motion of the plaintiff in intervention for summary judgment, together with a declaration of Thomas J. Cunningham in opposition to that motion. On October 20, 1969, the defendant filed a supplemental memorandum of points and authorities in support of the demurrer and in reply to the intervenor's memorandum of points and authorities in opposition to the demurrer, together with a second supplemental memorandum of points and authorities in support of the motion for change of venue.
On October 20, 1969, the superior court of Los Angeles County proceeded to hear all of the matters to which reference has been made. Its first expressed ruling was the denial of the defendant's motion for change of venue. Later that day the plaintiffs gave written notice to the defendant of that order. The petition presently before this court was filed in this court on October 30, 1969, which was within the statutory time. (Code Civ.Proc. § 400.)
Turning first to the question of whether the superior court properly denied the motion for change of venue, it is to be noted that the real parties in interest place reliance on section 393 of the Code of Civil Procedure to sustain that ruling. That section is in pertinent part as follows: '(1) Subject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the cause, or some part thereof, arose, is the proper county for the trial of the following actions: * * * (b) Against a public officer or person especially appointed to execute his duties, for an act done by him in virtue of his office; * * *.'
Thus, the real parties in interest contend that the defendant, the Regents of the University of California, constitutes a public officer within the meaning of section 393 and that the proper county for trial is Los Angeles County. It is stated that the 'gravamen of the complaint is that Petitioner was illegally expending tax monies and other public funds in furtherance of an unconstitutional purpose' and that a substantial portion of such expenditures would necessarily occur in Los Angeles County. Reliance is placed on Cecil v. Superior Court, 59 Cal.App.2d 793, 140 P.2d 125, wherein a milk distributor brought a proceeding in mandamus in Los Angeles County seeking relief with respect to an order of the Director of Agriculture of the State of California which conditionally revoked the milk distributor's license. The defendant director sought a writ of prohibition to stay further proceedings in the superior court action on the ground that his motion for a change of venue to the county of his residence, Sacramento County, was erroneously denied. In denying a writ of prohibition this court stated (59 Cal.App.2d at page 794, 140 P.2d at page 126): 'It is conceded that he [the Director of Agriculture] was not entitled to the order he sought if the 'cause or some part thereof' which is the basis of the mandamus proceeding arose in Los Angeles County and if that proceeding is one directed against a public officer for an act done by him in virtue of his office. Respondent contends that the mandamus proceeding is such a proceeding and that the cause arose in Los Angeles County. We are obliged to agree with these contentions and to hold that the proceeding is triable in Los Angeles County under section 393(b) of the Code of Civil Procedure, for this section, if it applies, takes precedence over section 395, Code of Civil Procedure, which requires that the place of trial be changed to the county of defendant's residence in certain other cases.'
Reference is also made by the real parties in interest to Duval v. Contractors State License Board, 125 Cal.App.2d 532, 271 P.2d 194, an appeal from an order changing the venue from San Bernardino County to Los Angeles County in a proceeding for review, pursuant to section 1094.5 of the Code of Civil Procedure, of a final order of the Registrar of Contractors revoking the licenses of the petitioners whose principal place of business was in San Bernardino County. The court followed the reasoning of Cecil in upholding the contention that the provisions of section 393 (1)(b) of the Code of Civil Procedure governed, stating (125 Cal.App.2d at page 535, 271 P.2d at page 196): 'The rule announced in the Cecil case is sound, is in accord with common experience and practice, is of great benefit to the persons most vitally affected, and works no great hardship on the departments and officers of the state.'
In Brock v. Superior Court, 29 Cal.2d 629, 177 P.2d 273, 170 A.L.R. 521, the Director of Agriculture of the State of California, relying upon section 395 of the Code of Civil Procedure, made a motion for change of venue from Stanislaus County to the county of his residence, Sacramento County. The trial court denied the motion upon the ground that section 393(1)(b) was applicable. The Supreme Court determined that a writ of prohibition was not the proper remedy and denied the writ. Of interest is the fact that three of the concurring justices undertook to indicate their agreement with the trial court's determination that the governing provision as to venue was that contained in section 393(1)(b). (29 Cal.2d at page 639, 177 P.2d 273.)
While not mentioned by counsel, it is to be noted that Division 4 of Title 1 of the Government Code is entitled 'Public Officers and Employees' and that in section 1000, contained in that division, executive officers are stated to be either civil or military. Section 1001 states in part as follows: 'The civil executive officers are: * * * the head of each department and all chiefs of divisions, deputies and secretaries of a department; * * *.' No mention is made of the Regents of the University of California or of the members of the Board of Regents of the University of California.
The petitioner, the Regents of the University of California, takes the position that it does not constitute a Public officer, that, accordingly, the provisions of section 393 (1)(b) are not applicable to it, and that the governing section as to venue in the present case is section 395 of the Code of Civil Procedure. The latter section is in pertinent part as follows: '(1) In all other cases, except as in this section otherwise provided, and subject to the power to transfer actions or proceedings as provided in this title, the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action.'
Section 9 of article IX of the California Constitution is in part as follows: 'The University of California shall constitute a public trust, to be administered by the existing corporation known as 'the Regents of the University of California,' with full powers of organization and government, * * *. Said corporation shall be in form a board composed of eight ex officio members, to wit: the Governor, the Lieutenant Governor, the Speaker of the Assembly, the Superintendent of Public Instruction, the President of the State Board of Agriculture, the President of the Mechanics Institute of San Francisco, the president of the alumni association of the university and the acting president of the university, and 16 appointive members appointed by the Governor; * * *.' It is not disputed that the residence of the corporation is in Alameda County and that its principal administrative office is located there.
In Division 3.6 of Title 1 of the Government Code, entitled 'Claims and Actions Against Public Entities and Public Employees,' the Legislature undertook to define 'public entity' for the purposes of that division. (Gov.Code, § 810.) Section 811.2 is as follows: "Public entity' includes the State, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.' That the corporation known as the Regents of the University of California is a public legal entity rather than a public officer is supported by the determination of its character in the case law of this state. (Newmarker v. Regents of Univ. of Cal., 160 Cal.App.2d 640, 645, 325 P.2d 558.)
As has been noted, the taxpayers' action in the present case is one brought to restrain the expenditure of tax monies and other public funds in furtherance of an alleged unconstitutional purpose. The complaint in intervention is in essence of the same nature although the plaintiff in intervention has in addition a personal interest in the success of the taxpayers' position insofar as it relates to the preservation of her status as a member of the university faculty. Consequently, it was error to deny the motion of the petitioner, the Regents of the University of California, for a change of venue to Alameda County pursuant to the provisions of section 395, subdivision (1), of the Code of Civil Procedure. (Cf. County of Riverside v. Superior Court, 69 Cal.2d 828, 73 Cal.Rptr. 386, 447 P.2d 626.)
It is contended, however, that the petitioner is not entitled to the relief it seeks in this court because it waived its right to a review of the denial of its motion for a change of venue by participating in the hearing as to the motions for summary judgment and the hearing of its demurrer after the adverse ruling as to venue. Pertinent references to the record will be made.
As has been noted, the various matters to which reference has been made came before the superior court for hearing on Monday, October 20, 1969, seventeen days after the filing of the complaint. When the hearing commenced on that date at 9:30 a.m., the trial court properly heard the motion for change of venue first. After argument by counsel, the court stated without interruption: 'The motion for change of venue will be denied. Gentlemen, it appears to the Court that if the motion for summary judgment has merit and it is appropriately addressed to the Court at this time, prior to the filing of an answer, that it would be unnecessary to reach the problem through demurrer and the matter could proceed on the affidavits in support of the summary judgment and the affidavit which is lodged in opposition to it.' Thereafter counsel for the Regents of the University of California argued that the hearing of the motion for summary judgment should await the filing of its answer. Subsequently counsel for the Regents of the University of California stated that the defendant had not had 'the opportunity to brief in full the Constitutional issue.' He further stated: 'I might also say preliminarily, your Honor, we also think the demurrer interposed by the defendants [sic] should be considered by the Court at this time. We think the demurrer is very well taken on procedural grounds, the basic procedural grounds, of the failure to include administrative remedies.'
After a discussion relating to the demurrer which involved the matter of the necessity of a prior demand upon the Board of Regents, the following colliquy ensued between the court and counsel for the defendant: 'THE COURT: All right, we understand your argument. Now, we need to address ourselves to the question do the Regents contend through counsel that Keyishian, Elfbrandt and Vogel are not applicable to this situation. MR. REIDHAAR: We do indeed, and I would like to state this. If the Court feels that it might be reaching what might be called the merits for the summary judgment, that is the basis of the Constitutional issue, then we certainly request leave, your Honor, to have appropriate time to file with the Court a full brief on this matter. We feel that it is a Constitutional issue of first order of importance. It is an issue which should be decided only after the motion is carefully considered, and we respectfully request permission to submit to the Court a full brief on this matter.' Following an extended discussion as to the applicable constitutional law, counsel for the defendant again asked that he be given time to submit a brief with respect to the matter. In response to the court's inquiry as to 'what kind of law would we expect in your new memo,' counsel stated: '* * * To my knowledge there are no cases on this precise point, on this very narrow, precise point which I have been addressing myself to. * * * To state it more precisely, whether an educational institution can determine reasonably that a person who is and remains a member of the Communist Party thereby assumes a commitment which is opposed to the commitments as a faculty member.'
After a recess the court discussed the issues before it, a portion of the court's statement being as follows: 'We are cognizant of counsel's request to brief further the law in this regard. The Court certainly does not treat that in any frivolous fashion but the Court believes that it would not be aided by a further development of the law in the argument suggested by counsel. The Court is prepared to rule and does rule that the motion for change of venue is denied. The demurrer of the defendants is overruled. Plaintiffs' motion for summary judgment is granted.'
Thereafter one of the plaintiffs' counsel stated: 'One more important point. I wonder if we could ask for a waiver, if a waiver would be given by counsel of the requirements of written notice under Section 400 of the Code of Civil Procedure which relates to a petition or [sic] writ of mandate review of the Court's ruling on the motion for change of venue. I know the Court asked for it but I am wondering if counsel will waive that.' Defendant's counsel responded: 'We will because this counsel may be able to stipulate to it but I would like to give it some thought.' As has been heretofore noted, on the same day, but apparently after the colliquy just noted, counsel for the plaintiffs served on counsel for the defendant a written notice that the court had made and entered its minute order denying defendant's motion for change of venue. That document also contained notice of the overruling of the demurrer to the complaint.
In support of their contention that the petitioner waived its right to appellate review of the order denying its motion for change of venue, the real parties in interest argue that the reasoning of Jones v. Blonder, 159 Cal.App.2d 316, 323 P.2d 1015, is controlling. Therein the motion for change of venue was heard and denied on July 5, 1957. On July 16, 1957, the defendant's attorney sent a letter to the trial judge in which he stated that he was willing to submit the demurrer, which was set for hearing on July 19, 1957, on the demurrer and the points and authorities in support thereof without oral argument. On July 19, 1957, the demurrer was submitted and overruled, the defendant being given 15 days within which to answer. No answer was filed but on August 9, 1957, which was 21 days after the ruling on the demurrer and 35 days after the entry of the order denying the motion for change of venue, the defendant filed a notice of appeal from the latter order. The appellate court stated (159 Cal.App.2d at page 317, 323 P.2d at page 1017): 'However, analogy and reasoning lead us to the conclusion that where, as here, an order appealable * * * is entered, later submission to rulings of the court constitutes a waiver of objection to the appealable order. Had the case been tried on its merits within the time allowed for appeal from the order, appellant would have been precluded from such appeal and further would have been foreclosed from raising the point on an appeal from the judgment.' The court further reasoned as follows (pages 317-318, 323 P.2d, page 1016): 'Upon denial of the motion for change of venue on July 5, 1957, appellant had the right to file his notice of appeal which would have stayed all further proceedings in the trial court. Had he desired more time to consider the advisability of an appeal, he could have asked that the demurrer be taken off calendar, and if such request had been refused, appellant could have declined to participate in the hearing on the demurrer. Instead of following any of these courses, appellant chose to participate in the hearing by waiving oral argument and submitting the matter on the points and authorities then on file. By so doing appellant acquiesced in any error attending the denial of the motion for change of venue and thereby lost the right of objecting to it. (Civ.Code, § 3516; Allin v. International etc. Stage Employees, 113 Cal.App.2d 135, 247 P.2d 857.)'
In Estep v. Budger Mfg. Co., 164 Cal.App.2d 119, 330 P.2d 298, however, the court determined that the reasoning of Jones v. Blonder was not decisive of the case then before it. In Estep the respondent contended that there was a waiver of the defendant's right to object to the order denying its motion for change of venue because, after the court denied its motion, the defendant argued its demurrer and submitted points and authorities therewith. The court stated (164 Cal.App.2d at pages 124-125, 330 P.2d at page 301): 'In the instant case the motion for change of venue and the demurrer were set for hearing and heard on March 27, 1958. The court in its order denied the motion and overruled the demurrer, giving defendant 10 days within which to answer. The defendant filed its notice of appeal on April 1, 1958. While the court's order recites that it was made after hearing arguments of counsel, it does not state whether the arguments were on the motion or on the demurrer. It is said in Allin v. International Alliance of Theatrical Stage Employes, etc., 113 Cal.App.2d 135, 138, 247 P.2d 857, that one who by his conduct accepts a ruling of the court under circumstances amounting to acquiescence therein, may not complain of it on appeal. However, in Gallo v. Boyle Mfg. Co., 30 Cal.App.2d 653, 655, 86 P.2d 1067, it is said that it is true that the privilege to have the place of trial changed may be waived impliedly as well as expressly, but in order to do so there must be some act of the moving party tending to show his intent to invoke the jurisdiction of the court of first instance for the trial of questions of the fact or of law. Under the circumstances shown by the record in the instant case we cannot hold as a matter of law that appellant waived its right to object to the order made on the motion for change of venue.'
Venue orders are no longer appealable, but as has been noted hereinabove (footnote 1), resort to the use of a petition for a writ of mandate has been substituted. By such procedure the disposition of the question of venue is expedited. (See Chadbourn, Grossman and Van Alstyne, California Pleading, 1968 Pocket Parts, § 473, page 82.) In the light of the record as hereinabove set forth, in the present case the reasoning of Estep as to waiver is more appropriate than that of Jones v. Blonder.
As succinctly stated in Crest Catering Co. v. Superior Court, 62 Cal.2d 274, at page 278, 42 Cal.Rptr. 110, at page 113, 398 P.2d 150, at page 153: 'A waiver may occur (1) by an intentional relinquishment or (2) as 'the result of an act which, according to its natural import, is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.' (Rheem Mfg. Co. v. United States (1962) 57 Cal.2d 621, 626, 21 Cal.Rptr. 802, 805, 371 P.2d 578, 581.)'
It is to be noted that, after an initial statement that the motion for change of venue was denied, the trial court proceeded without interruption to consider the plaintiffs' motion for summary judgment. Such procedure cannot be held to have been initiated or voluntarily chosen by defendant's counsel. While it is true that defendant's counsel took the position that the demurrer should first be considered, it is manifest that it was counsel's purpose to forestall a ruling on the plaintiffs' motion for summary judgment on the basis that the demurrer had merit. Moreover, defendant's counsel sought further time within which to file an additional brief before the court ruled on that motion for summary judgment, but the court denied such request. That request and the denial thereof support the conclusion that the defendant did not voluntarily acquiesce in the court's action in immediately undertaking to determine the cause on the merits. It is to be further noted that the court undertook to state its ruling as to the motion for change of venue, as to the demurrer and as to plaintiffs' motion for summary judgment simultaneously after all argument relating thereto had been completed and after the recess to which reference has been made, even though it had earlier expressed a ruling as to the matter of venue. Upon the record here presented it cannot be said that as a matter of law the defendant intentionally relinquished its right to seek review of the order denying its motion for change of venue in accordance with the procedural provisions of section 400 of the Code of Civil Procedure as set forth in footnote 1 of this opinion.
Furthermore, the conduct of the defendant's counsel did not constitute 'an act which, according to its natural import, is so inconsistent with an intent to enforce the right [to seek review of the order denying the motion for change of venue] as to induce a reasonable belief that such right has been relinquished' (Crest Catering Co. v. Superior Court, supra, 62 Cal.2d 274, 278, 42 Cal.Rptr. 110, 113, 398 P.2d 150, 153). This is manifest from the conduct of the plaintiffs' counsel in seeking from defendant's counsel a waiver of a written notice of the ruling of the court which, under section 400 of the Code of Civil Procedure, would start the running of the time within which to petition the court of appeal for a writ of mandate, and, when such waiver was apparently not forthcoming, in serving such a written notice on defendant's counsel, which notice also embodied the trial court's ruling on the demurrer.
In the instant case it cannot be held as a matter of law that petitioner, the Regents of the University of California, waived its right to pursue the remedy provided by section 400 of the Code of Civil Procedure for a prompt review of the order denying its motion for change of venue. (See Lyons v. Brunswick-Balke etc. Co., 20 Cal.2d 579, 583-584, 127 P.2d 924, 141 A.L.R. 1173.)
The real parties in interest argue that the grant or refusal of a writ of mandate lies within the sound discretion of the court to which application is made, citing McDaniel v. City etc. of San Francisco, 259 Cal.App.2d 356, 361, 66 Cal.Rptr. 384, and other cases. Based thereon, the following further argument is made: 'Thus, if Petitioner herein cannot establish that substantial prejudice would result from the denial of the writ, i. e. that Petitioner has a valid defense on the merits of Taxpayers' complaint, this Court should, in the exercise of its sound judicial discretion, deny the writ. To issue the writ without a showing by Petitioner that the Superior Court of Alameda County could, as a matter of Constitutional law, reach a different result on the merits, would result in a transfer which would be an idle and useless act.'
Aside from the statements of defendant's counsel at the hearing in the superior court on October 20, 1969, that time for preparation of an additional brief would be of value to defendant in fully presenting its position as to the applicability of the Keyishian, Elfbrandt and Vogel cases to the factual situation it could show within the scope of the charge pending against the plaintiff in intervention, it is to be noted that the nature of the right of a defendant with respect to the transfer of a case to the proper court is as stated in Kaluzok v. Brisson, 27 Cal.2d 760, at pages 763-764, 167 P.2d 481, at page 482, 163 A.L.R. 1308 as follows: 'The right of a defendant to have an action brought against him tried in the county of his residence is an ancient and valuable right, safeguarded by statute and supported by a long line of decisions. The right of a plaintiff to have an action tried in a county other than that of the defendant's residence is exceptional. If the plaintiff would claim such right he must bring himself within the exception. (Brown v. Happy Valley Fruit Growers, Inc., 206 Cal. 515, 521-522, 274 P. 977; Brady v. TimesMirror Co., 106 Cal. 56, 39 P. 209.)' The passage of time has not eroded that concept. (Johnson v. Superior Court, 232 Cal.App.2d 212, 217, 42 Cal.Rptr. 645.) Since the proper place of trial in the present case is in the Superior Court of Alameda County, any matter relating to the merits of the plaintiffs' action or that of the plaintiff in intervention could not validly be determined by the Superior Court of Los Angeles County but should be determined by the court of proper venue. (Kostal v. Pullen, 36 Cal.2d 528, 530, 225 P.2d 217; Sloan v. Court Hotel, 72 Cal.App.2d 308, 316, 164 P.2d 516; Pacific Construction Finance Co., Ltd., v. Kramer, 41 Cal.App.2d 461, 462, 106 P.2d 634; see Stutsman v. Stutsman, 79 Cal.App.2d 81, 84-85, 178 P.2d 769; 1 Chadbourn, Grossman & Van Alstyne, California Pleading (1961) § 417, p. 389; see also Gutierrez v. Superior Court, 243 Cal.App.2d 710, 723, 52 Cal.Rptr. 592.) Under the circumstances of the present case the provisions of article VI, section 13, of the California Constitution cannot be successfully urged as a bar to an effective claim of error in the ruling on the motion for change of venue since such error amounted to a deprival of a substantial statutory right of a mandatory nature.
(See Spector v. Superior Court, 55 Cal.2d 839, 844, 13 Cal.Rptr. 189, 361 P.2d 909; Stutsman v. Stutsman, supra, 79 Cal.App.2d 81, 85, 178 P.2d 769.) To borrow the language of People v. Elliot, 54 Cal.2d 498, at page 507, 6 Cal.Rptr. 753, at page 759, 354 P.2d 225, at page 231, to hold harmless the violation of the right afforded to the defendant by section 395 of the Code of Civil Procedure 'would, in effect, be to write the statute off the books.'
The demurrers of the real parties in interest are overruled. Let a peremptory writ of mandate issue commanding respondent court to (1) vacate and set aside its minute order of October 20, 1969, denying the motion of defendant, the Regents of the University of California, for change of venue to Almeda County, (2) vacate and set aside its minute order of October 20, 1969, overruling the demurrer of the defendant the Regents of the University of California, to the complaint, (3) vacate and set aside its minute order of October 20, 1969, granting the motion of the plaintiffs for summary judgment and vacate and set aside the summary judgment for plaintiffs entered on October 21, 1969, (4) vacate and set aside its minute order of October 21, 1969, granting the motion of plaintiff in intervention for summary judgment and vacate and set aside the summary judgment for plaintiff in intervention entered on October 24, 1969, (5) transfer this action to the Superior Court of Alemeda County. --------------- 1 Section 400 of the Code of Civil Procedure, enacted in 1961, is as follows: 'When an order is made by the superior court granting or denying a motion to change the place of trial, the party aggrieved by such order may, within 10 days after service of a written notice of the order, or within such additional time not exceeding 20 days as the court may within the original 10 days allow, petition the court of appeal for the district in which the court granting or denying the motion is situated for a writ of mandate requiring trial of the case in the proper court. The petitioner shall file a copy of such petition in the trial court immediately after the petition is filed in the court of appeal. The court of appeal may stay all proceedings in the case, pending judgment on the petition becoming final. The clerk of the court of appeal shall file with the clerk of the trial court, a copy of any final order or judgment immediately after such order or judgment becomes final.' 2 In Caminetti v. Pac. Mutual L. Ins. Co., 22 Cal.2d 344, at page 360, 139 P.2d 908, at page 916, the Supreme Court stated: 'The members of the Board of Regents of the University of California are not public officers. Lundy v. Delmas, 104 Cal. 655, 658-660, 38 P. 445, 26 L.R.A. 651.' 3 Section 387 of the Code of Civil Procedure is in pertinent part as follows: 'At any time before trial, any person, who has an interest in the matter in litigation, or in the success of either of the parties, * * * may intervene in the action or proceeding. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, * * *.' The plaintiff in intervention contends that if venue as to the cause herein involved is to be determined by the provisions of section 395 of the Code of Civil Procedure, the complaint in intervention makes applicable the following provisions of that section relating to a contractual obligation: 'When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary.' That contention is untenable. Even if the complaint in intervention should be construed to constitute 'an action founded on such obligation,' there is no reason to consider a voluntary intervention as creating a situation of a nature different from that which exists when there is only one complaint containing several causes of action. The governing law is expressed in Archer v. Superior Court, 202 Cal.App.2d 417, at page 419, 21 Cal.Rptr. 48, at page 49, as follows: 'Although there can thus be as many as three counties in which a contract action may properly be brought, the defendant's residence is the preferred place for trial, and if the defendant is entitled to a change of venue on any one of the causes of action alleged in the complaint, the motion must be granted as to all.' 4 The granting of permission to file additional affidavits or declarations with respect to a motion for summary judgment is within the province of the discretion of the trial court. It was stated in Johnson v. Banducci, 212 Cal.App.2d 254, at page 260, 27 Cal.Rptr. 764, at page 767: 'Section 437c of the Code of Civil Procedure does not purport to prescribe in minute detail the procedure to be followed by litigants and the courts. It contents itself with a requirement of those affidavits deemed essential to a proper motion for summary judgment, leaving the details of the procedure to be supplied by the court under its inherent powers. For example, it does not limit the number of affidavits which may be filed by each litigant. It does not provide for, nor prohibit, continuances of the hearing date. It does not provide for, nor prohibit, the reception by the court of affidavits in addition to those specified therein. * * * We conclude that, in summary judgment proceedings, the trial court is vested with discretion to permit the filing of affidavits in addition to those specifically mentioned in the statute and its determination in this respect will not be disturbed on appeal unless an abuse of discretion is clearly shown.'