VENUE & Service of Process

Question 1

Venue Basic idea.

Answer 1

Now we know the case will be filed in state court in California. But where?

Question 2

In federal court, we lay venue in an appropriate federal district. What is the relevant place for laying venue in state court?

Answer 2

An appropriate county

Question 3

What are Local actions

Answer 3

Cases for the recovery of land, or determination of an interest in land, or for injury to land are called “local actions.” (We did not worry about this in federal court.)

Question 4

In a local action, where do we lay venue?

Answer 4

In the county where the land lies

Question 5

If it’s not a local action, it is called a….

Answer 5

“transitory action.”

Question 6

“transitory action.” Venue choices:
– General rule:

Answer 6

venue is OK in a county where any D resides when the case is filed.

Question 7

Additional venue in contract cases: venue is also OK in the county where….

Answer 7

the contract was entered or to be performed

Question 8

Additional venue in personal injury or wrongful death: venue is also OK in the county where…

Answer 8

Injury Occured

Question 9

If D is a corporation, venue is OK in the county where:

Answer 9

(1) it has its principal place of business (PPB), or
(2) where it entered or is to perform a contract, or
(3) where the breach occurred or liability arises.

Question 10

If D is an unincorporated business, venue is OK in….

Answer 10

county of PPB if that is on file with secretary of state. Otherwise, where any member or partner resides.

Question 11

What if all the defendants are non-residents of California? Venue is OK:

Answer 11

In any county

Question 12

Transfer of venue.

Answer 12

We’re moving the case from the Superior Court in one county in California to the Superior Court in another county in California.

Question 13

If the original venue is improper, D can move to transfer to a proper county. When must this motion be made?

Answer 13

It is with or before your answer, demurrer, or motion to strike

Question 14

If the original venue is proper, a court may, on motion, transfer if:

Answer 14

1. There is reason to believe impartial trial cannot be had in the original venue; or
2. Convenience of witnesses and ends of justice would be promoted; or
3. No judge is qualified to act.

Question 15

If venue is proper and the court grants the motion:

Answer 15

it transfers to a county on which the parties agree.

and if the parties don’t agree, the court chooses the county.

Question 16

Inconvenient forum (forum non conveniens).

Answer 16

As in federal court, this is where a court dismisses (or stays) because the far more convenient and appropriate court is in a different judicial system (e.g., state court in Missouri or a court in a foreign country).

By statute in California, state courts may dismiss or stay on motion (by a party or by the court). It must find that “in the interest of substantial justice an action should
be heard in a forum outside [California].” The court looks at the same factors as in federal court.

Question 17

If the court grants the motion of forum non-conviens, it may do so on condition, e.g., that….

Answer 17

D waive a personal jurisdiction or statute of limitations objection in the other forum.

Question 18

SERVICE OF PROCESS

Basic idea

Answer 18

D must be served with process (summons and a copy of the complaint).

Question 19

Who may serve process?

Answer 19

Any non-party who is at least 18

Question 20

Methods of service.

Answer 20

1. Personal service.
2. Substituted Service
3. Corporations and other businesses
4. Service by mail
5. Service by publication

Question 21

Personal service.

Answer 21

Good anywhere in the state (same in federal court).

Question 22

Substituted service. Different from federal court in some ways.

Answer 22

You can only use substituted service to serve an individual if personal service “cannot with reasonable diligence” be had. So you must try personal service first and only if it is not possible can you use substituted.

Question 23

Substituted service. the requirements are:

Answer 23

1. Must be made at D’s usual abode;
2. Must be left with a competent member of the household who is at least age 18;
3. That person must be informed of the contents; and
4. Process must also be mailed by first-class mail, postage prepaid to D.

Question 24

When is such substituted service deemed effective?

Answer 24

It is 10 days after the mailing

Question 25

Corporations and other businesses.

Answer 25

Deliver process to agent for service of process or
to an officer, or general manager.

These people may be served personally or process left with someone apparently in charge at her office during usual office hours.

Can always serve the Registered Agent

Question 26

Service by mail.

Answer 26

Copy of summons and complaint and two copies of acknowledgment (waiver form) are mailed to D, with self-addressed stamped envelope addressed to P. Works like waiver in federal court, except this is considered “service” and not “waiver of service.”

Question 27

Two other points on Service by Mail:

Answer 27

1. D has 20 days (instead of 30 days in federal court) to return the form, and
2. service deemed complete when the D executes the waiver

Question 28

Service by publication.

Answer 28

Only available on affidavit from P’s attorney showing that D cannot be served, after demonstrating reasonable diligence to serve D in another way. It is a last resort.

Question 29

Service outside California

Answer 29

Can be made out of state in any manner allowed by California law OR by mail, postage prepaid, return receipt requested.

If by mail, deemed complete tenth day after the mailing.

Question 30

Immunity? D, a nonresident, is served with process in Bakersfield while in California to be a witness or party in a civil case. Is D immune from being served with process for a California state-court civil case?

Answer 30

No, she is not immune from being served for CA State Court Civil Case - but she would be immune for a case in Federal Court because coming to the State to be a witness or party in a case is not a substantial contact for Federal Court

Question 31

Subsequent documents.

Answer 31

As in federal court, can be delivered or mailed. If mailed, add 5 days to time required for response (10 days if out of state). (Federal court we add 3 days.)