VENUE & Service of Process Flashcards
Venue Basic idea.
Now we know the case will be filed in state court in California. But where?
In federal court, we lay venue in an appropriate federal district. What is the relevant place for laying venue in state court?
An appropriate county
What are Local actions
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.)
In a local action, where do we lay venue?
In the county where the land lies
If it’s not a local action, it is called a….
“transitory action.”
“transitory action.” Venue choices:
– General rule:
venue is OK in a county where any D resides when the case is filed.
Additional venue in contract cases: venue is also OK in the county where….
the contract was entered or to be performed
Additional venue in personal injury or wrongful death: venue is also OK in the county where…
Injury Occured
If D is a corporation, venue is OK in the county where:
(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.
If D is an unincorporated business, venue is OK in….
county of PPB if that is on file with secretary of state. Otherwise, where any member or partner resides.
What if all the defendants are non-residents of California? Venue is OK:
In any county
Transfer of venue.
We’re moving the case from the Superior Court in one county in California to the Superior Court in another county in California.
If the original venue is improper, D can move to transfer to a proper county. When must this motion be made?
It is with or before your answer, demurrer, or motion to strike
If the original venue is proper, a court may, on motion, transfer if:
- There is reason to believe impartial trial cannot be had in the original venue; or
- Convenience of witnesses and ends of justice would be promoted; or
- No judge is qualified to act.
If venue is proper and the court grants the motion:
it transfers to a county on which the parties agree.
and if the parties don’t agree, the court chooses the county.
Inconvenient forum (forum non conveniens).
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.
If the court grants the motion of forum non-conviens, it may do so on condition, e.g., that….
D waive a personal jurisdiction or statute of limitations objection in the other forum.
SERVICE OF PROCESS
Basic idea
D must be served with process (summons and a copy of the complaint).
Who may serve process?
Any non-party who is at least 18
Methods of service.
- Personal service.
- Substituted Service
- Corporations and other businesses
- Service by mail
- Service by publication
Personal service.
Good anywhere in the state (same in federal court).
Substituted service. Different from federal court in some ways.
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.
Substituted service. the requirements are:
- Must be made at D’s usual abode;
- Must be left with a competent member of the household who is at least age 18;
- That person must be informed of the contents; and
- Process must also be mailed by first-class mail, postage prepaid to D.
When is such substituted service deemed effective?
It is 10 days after the mailing
Corporations and other businesses.
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
Service by mail.
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.”
Two other points on Service by Mail:
- D has 20 days (instead of 30 days in federal court) to return the form, and
- service deemed complete when the D executes the waiver
Service by publication.
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.
Service outside California
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.
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?
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
Subsequent documents.
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.)
