Wins

A tort defendant moved pre-trial to transfer the case from San Francisco superior court to San Diego superior court for the “convenience of the witnesses” under Code of Civil Procedure section 397, subdivision (c).  He argued that most of the witnesses were based in San Diego, where the alleged wrongful conduct took place.  The trial court denied the motion.  It reasoned that because “[m]any depositions and much trial testimony are now given via audio/video platforms . . . it matters little, if at all, where a witness resides at the time of trial as travel is unnecessary.”

The defendant then hired GMSR, which obtained rare interlocutory review of the ruling.

In a published opinion, the Court of Appeal held that the trial court abused its discretion in denying a venue change.  Among other things, the Court of Appeal concluded that the trial court erred (1) in reasoning that the witnesses’ location was unimportant because they could appear remotely under a statute enacted in response to the COVID-19 pandemic, and (2) in finding that the defendant failed to show a venue change would be more convenient for most witnesses and promote the interests of justice.

The Court of Appeal further agreed with GMSR’s argument that the trial court’s reasoning “would effectively render section 397, subdivision (c) meaningless, ‘since the same reasoning would permit courts to deny a venue change in almost any case no matter how many witnesses would be inconvenienced.'”  That result cannot be right, the Court explained, given that “the Legislature could have revised or repealed section 397, subdivision (c) if it intended courts to assume remote testimony will be utilized at trial, at least during the duration of the pandemic.”  But the Legislature left that statute “undisturbed,” instead enacting Code of Civil Procedure section 367.75, which is a “temporary” measure that allows for remote hearings only under limited circumstances and only through July 1, 2023.  Because witnesses’ location continues to be a basis to change venue, the Court of Appeal ordered the trial court to vacate its ruling and grant the venue change sought by GMSR’s client.

Click here to read the Court of Appeal Opinion: Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824 [First District, Division 5]