Summary

Prop 65 Plaintiffs routinely file most Prop 65 cases in Alameda County, presumably because they believe it is a plaintiff-friendly forum. However, the California Court of Appeal recently issued a victory for Prop 65 defendants, finding that Prop 65 matters may be transferred to the venue where the cause arose. Dow Agrosciences LLC v. Superior Court (2017 1^st Dist.)16 Cal.App.5th 1067.^[1]

Background

In 2016, the Center for Environmental Health (“CEH”) filed a complaint in Alameda County alleging that Dow Agrosciences LLC (“Dow”) violated the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Health and Safety Codes section 25249.5 et seq.) (“Prop 65”) by failing to warn individuals who live or work in the town of Shafter, located in Kern County, that Telone – a soil fumigant applied to agricultural crops – manufactured by Dow contains a chemical known to cause cancer. CEH’s complaint sought civil penalties and an injunction. Dow filed a motion to transfer the case to Kern County, pursuant to Code of Civil Procedure section 393(a),^[2] arguing the only proper court for trial is the county where the claim arose. CEH opposed, arguing that Section 393(a) does not apply because the case is “properly characterized as an action to enjoin unlawful conduct rather than to recover a statutory penalty; an action of injunctive relief is ‘transitionary’ as opposed to ‘local’ in nature; and therefore, under the general venue rules set for in [S]ection 395(a), any county is the proper court.” The trial court sided with CEH, finding that venue is proper in any county under Section 395(a) because Dow is a nonresident defendant with no principal place of business in California. On review, the First District Court of Appeal held that the proper court for trial is in Kern County.

The Court of Appeal’s Analysis

Usually, proper venue is the county where: (i) the defendant lives or does business; or (ii) the dispute arose. In this case, the Court articulated how venue is to be determined by outlining the various venue statutes in play in the matter.

• As codified in Section 395(a), a defendant is entitled to have an action tried in the county of residence unless the action falls within certain exceptions.
• Some cases are governed by Section 392(a) and are characterized as “local” in nature (i.e., when the relief sought pertains to a real property right such as the statutory penalties sought by CEH) and are distinguished from cases seeking personal – “transitionary” – relief (i.e., when the relief sought is personal in nature such the injunction sought by CEH).
• Cases seeking transitionary relief are governed by the general venue rule codified in Section 393(a). Section 393(a) provides that “the county in which the cause, or some part of the cause, arose, is the proper county for the trial of…actions…for the recovery of a penalty or forfeiture imposed by statute…” The pertinent language of Section 393(a) is not narrow, but applies to action to recover a penalty or to secure a forfeiture pursuant to a statute. When a provision of Section 393 applies, it specifies the proper county for the initial filing of an action, overriding the general rule providing for trial in the county of the defendant’s residence.
• Because complaints often pray for multiple remedies, courts have established the “main relief” rule to determine whether an action is local or transitionary in nature. This rule comes into play when a court is required to select between inconsistent venue rules applicable to distinct types of relief, and thereby implicating the special venue rules set forth in Section 392.

The court found that when, as in the present case, an action does not involve interests in real property, that potential conflict does not arise between the distinct forms of relief prayed for and the “main relief” rule does not apply. Thus, the court found the complaint to be within the scope of Section 393(a), dictating transfer to Kern County, the county where the cause of action arose. The Court further found that because Section 393(a) requires a different venue than the defendant’s residence, it supplants the general venue rule codified in Section 395(a). Thus, Dow’s status as a nonresident defendant was not relevant to the selection of the proper venue for trial of this case under Section 393(a).

_{[1] http://caselaw.findlaw.com/ca-court-of-appeal/1879175.html.}

_{[2] Any statutory reference not otherwise identified shall be to the California Code of Civil Procedure.}