Change of Venue in a California Divorce Case [CCP § 397]
Just in case the Ford Bronco threw you off, one of the most infamous venue changes in California jurisprudence occurred in the 1995 double murder criminal trial of O.J. Simpson for the 1994 murders of Nicole Brown Simpson and Ronald Goldman, when the court granted a change of venue, and ordered the case to be moved from Santa Monica to downtown Los Angeles.
While there are an unlimited number of fact patterns which may give rise to the issue of whether a change of venue is appropriate in the context of a family law matter, the bottom line is that, generally, parties to a divorce action can only seek to transfer a case on the grounds of the witness convenience before or when they filed their response to the divorce petition (Code of Civil Procedure 397), or after a judgment has been entered, where both parties have moved from that venue.
However, as a general rule, the parties cannot seek a venue change after the responding party has appeared in the Petitioner’s chosen jurisdiction, until the proceedings have concluded.
Changing Venue at the Beginning of a Divorce Case
Although it may be waived, proper venue is prescribed exclusively by statute (Code of Civil Procedure 392); and so are the reasons for which venue may be transferred. Courts have no authority to create judicial exceptions to the statutes. Forster v. Superior Court (1992) 11 Cal.App.4th 782, 789.
Section 396(b) establishes the “wrong court” ground for a venue transfer, and specifically requires a motion be made by the responding party “at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering… and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court…”
In the absence of the “wrong” venue ground addressed in Section 396(b), the responding party can file a Section 397 application for the court to transfer the case on the discretionary grounds set forth therein. However, failure to do so within the time limits prescribed by Section 397 results in a waiver of the right to attempt to do so before judgment is rendered.
There is No Statutory Authority to Change Venue Prior to Entry of a Divorce Judgment
There is no statutory authority, in family law or civil proceedings, to transfer venue mid-stream during the proceedings prior to entry of judgment.
Code of Civil Procedure 397 only applies at the inception of a case and upon service of the complaint or petition. This fact is clear from the language of statute, which reads:
The court may, on motion, change the place of trial in the following cases:
(a) When the court designated in the complaint is not the proper court.
(b) When there is reason to believe that an impartial trial cannot be had therein.
(c) When the convenience of witnesses and the ends of justice would be promoted by the change.
(d) When from any cause there is no judge of the court qualified to act.
(e) When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of the commencement of the proceeding is a resident of another county in this state, to the county of the respondent’s residence when the ends of justice would be promoted by the change.
Assuming a motion is timely, the burden is on the moving party to establish whatever facts are needed to justify the venue transfer. This requires declarations containing admissible evidence. Section 397(c) only addresses the convenience of third-party witnesses not the convenience of the parties. Wrin v. Ohlandt (1931) 213 Cal. 158, 160. Although, it is commonly argued that the convenience of the party would fall under the “ends of justice” rationale.
A declaration supporting a motion to transfer a case on the grounds of witness convenience and the ends of justice must be supported by a sufficient factual showing that includes at a minimum (a) the names of each non-party witness; (b) the substance of their expected testimony; (c) whether the witness has been deposed or has given a statement regarding the facts of the case; (d) the reasons why it would be “inconvenient” for the witness to appear locally; (e) the reasons why the “ends of justice” would be promoted by the transfer to a different county. Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16-17.
Under extraordinary circumstances and assuming a proper motion, the court may consider the convenience of a party under Section 397(c), but this is limited to cases where a party is extremely ill or feeble so that travel to a distant county would endanger his or her heath. Simonian v. Simonian (1950) 97 Cal.App.2nd 68, 69.
Change of Venue After Entry of a Divorce Judgment
Following a divorce judgment, Code of Civil Procedure 397.5 provides litigants with a legal basis to change venue in modification or enforcement proceedings when it appears that both petitioner and respondent have moved from the county rendering the judgment and ‘the ends of justice and the convenience of the parties would be promoted by that change.’
Navigating the legal process can be complicated and daunting without the right family law attorney; especially when issues of proper venue arise. If you have questions regarding the topic discussed in this article, it is advisable to contact a California divorce lawyer to find out what your options are.