Palomar Pomerado Health v. Sup. Ct.

Filed 3/8/07 Palomar Pomerado Health v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, David C. Velasquez, Judge. Petition granted.

The Tayler Law Firm and William C. Tayler for Petitioner.

Henderson & Caverly, Barron E. Ramos, and Kristen E. Caverly for Real Party in Interest.

THE COURT:*

Petitioner Palomar Pomerado Health (Palomar) seeks extraordinary relief

from an order denying its motion to transfer this case to San Diego County. Finding plain error, we issue a peremptory writ of mandate in the first instance directing the trial court to grant the motion to transfer.

Background

Palomar, a hospital district that operates medical facilities, is a public corporation located and operating solely in San Diego County. Real party in interest Chadwick Bowen is the class representative in a class action alleging that Palomar routinely charges more than is allowed by Evidence Code section 1158 for providing patients with copies of their medical records. (Bowen complains he was charged $15 for a copy of his medical record that should have cost only $1.) Bowen sued Palomar in Orange County, alleging merely that Palomar is a California corporation doing business in the . . . County of Orange.

Palomar moved to transfer the action to San Diego County, arguing Bowen filed suit in the wrong county. Palomar cited the general rule that a defendant is entitled to defend an action in the county where the defendant resides (Code Civ. Proc.,  395),^[1]and presented evidence that it is a public corporation with its principal place of business in San Diego. Palomer pointed out that Bowen made no allegations regarding Palomars residency for venue purposes.

Bowen opposed the motion on the ground that Palomar is a corporation and under section 395.5 a plaintiff can sue a corporation where a contract was made, was to be performed, or where an obligation or liability arose. Bowen argued that because he suffered injury (overcharging) at his residence in Orange County, that is where the liability arose and where venue is proper.

Palomars reply pointed out that a long-standing Supreme Court decision holds that the provisions of section 395.5 do not apply to a public corporation, but only to private corporations. (See Gallup v. Sacramento & San Joaquin Drainage Dist. (1915) 171 Cal. 71, 75 (Gallup).) Thus the normal venue provisions under section 395 apply and Palomars county of residence is the only proper forum for this action.

The court denied the motion to transfer on the following ground: If [section] 395.5 does not govern and [section] 395 does govern, the burden is still on the moving party to carry the burden of proof that no ground for venue exists, and defendant has not carried that burden.

Palomar filed a petition for a writ of mandate. We invited Bowen to file an informal response, which he did. After reviewing Bowens informal response, we notified the parties of our intent to issue a peremptory writ of mandate. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) We received no objection to this proposed procedure.

As we explain below, we determine the trial court failed to follow a clear statutory mandate in denying the motion to transfer. Because petitioners entitlement to the relief requested is so obvious that no purpose could be served by plenary consideration of the issue, we issue a peremptory writ of mandate in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260.)

Discussion

Case law clearly holds that section 395.5 does not apply to a public corporation like Palomar, but only to private corporations. (See Regents of University of California v. Superior Court (1970) 3 Cal.3d 529, 534; Gallup, supra, 171 Cal. at p. 75; Yedor v. Ocean Acc. & Guar. Corp. (1948) 85 Cal.App.2d 698, 702; De Campos v. State Compensation Ins. Fund (1946) 75 Cal.App.2d 13, 18-19.)^[2] Instead, the normal venue rules set forth in section 395 apply. Under that statute, the superior court in the county where the defendant[] reside[s] is the proper court for trial of the action. ( 395, subd. (a).)

A public corporations residence for venue purposes is its principal place of business. (Gallup, supra, 171 Cal. at p. 75.) Palomar established that its principal place of business, and thus its residence, is San Diego County. That showing sufficed to require a change of venue.

Bowen alternatively argues that venue is proper in Orange County under the injury to person provisions of section 395. The relevant statutory language is as follows: If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside . . . is a proper court for the trial of the action. ( 395, subd. (a).) Bowen argues he suffered an injury to his person or property when he mailed a $15 check to Palomar from his Orange County home, an overcharging for copies of medical records that amounted to theft.

This argument is way off the mark. The injury to person provisions of section 395 are narrowly construed to include only physical injuries to persons and do not include economic harm. (Cubic Corp. v. Superior Court (1986) 186 Cal.App.3d 622, 625; Carruth v. Superior Court (1978) 80 Cal.App.3d 215, 219-220; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) 3:498.) Bowen wrongly argued at the hearing that the provision is broadly defined, and would include personal as well as economic injury. The court apparently relied on that erroneous representation of the law in finding Palomar failed to carry its burden of proving that no ground for venue exists in Orange County.

Because the proper venue for this action is San Diego County, the court plainly erred in denying the motion to transfer. The statutory mandate is clear: [T]he court shall, if it appears that the action . . . was not commenced in the proper court, order the action . . . transferred to the proper court. ( 396b, subd. (b).)

Finally, we conclude Palomar is entitled to its costs in the trial court and in this writ proceeding. In connection with its motion to transfer, Palomar asked the court for its associated fees and expenses, amounting to $7,235.60. Under section 396b, subdivision (b), such an award is within the courts discretion. In deciding whether to grant such an award, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. ( 396b, subd. (b).)

The facts support awarding Palomar its fees and costs associated with the motion to transfer. Prior to filing its motion, Palomar had asked Bowen to agree to the transfer, but Bowen refused. The case law is clear that an action against a public corporation based on a nonphysical injury must be filed in the county where the entity has its principal place of business. Bowen knew Palomar was a public corporation: The complaint alleges Bowen first filed a claim under the Government Tort Claim Act. Bowen also indisputably knew Palomars principal place of business is in San Diego. Given these facts, an award of costs and fees is justified. ( 396b, subd. (b).) Palomar is also entitled to its costs in bringing this writ petition. (Cal. Rules of Court, rule 8.490(m).)

Disposition

A peremptory writ of mandate shall issue directing the superior court to vacate its order denying the motion to transfer and to enter a new order granting the motion to transfer. Palomar is awarded its attorneys fees and costs in the amount of $7,235.60 incurred in bringing the motion to transfer, and to its costs in this writ proceeding.

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

* Before Sills, P. J., Aronson, J., and Fybel, J.

^[2] These cases dealt with a former provision of the California Constitution (art. XII, 16) that was identical to section 395.5 and was transferred from the Constitution to the Code of Civil Procedure in 1972; its rule (and application) survived the transfer intact. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 927, fn. 6; Rosas v. Superior Court (1994) 25 Cal.App.4th 671, 673, fn. 1.)