What Is a Motion to Change Venue?
The motion for change of venue is a legal filing that asks the court to relocate a case out of the current superior court district. There are limitations on when you may request a change of venue, how you may request a change of venue, and where you may move your case to from its current home court.
In most civil cases, the other side does not have any right to object or consent to you moving the case to a different court than the one you have already filed it in. The factual basis for the motion moves forward , identifying the applicable law to demonstrate why the case should be moved.
While it may seem cavalier, there are logistical reasons why a motion for change of venue matters. The opposing party may be adverse to traveling to another area of the state to litigate within the time lines dictated by the California Rules of Court and/or the local rules of the relevant superior court where the case resides within the State of California. Thus, even if the case is close to home for one party, there may be practical reasons why a party might prefer to litigate in another county.
California Grounds for Change of Venue
In California, parties may cite a number of legal grounds in their motion for change of venue. Of course, the most commonly used basis is the residence of the parties. Under CCP Section 395, cases must be tried in the judicial district where defendants reside at the time of commencement of the action, or where the contract is entered or performed, or where the real property or movable property to be administered is located. Parties may also cite "another acceptable place of trial" in the state. Commonly used legal grounds include:
Bias or Prejudice A request for a change of venue may be made under CCP Section 397 (c). This section provides for change of venue for "the convenience of the witness or the ends of justice." The party requesting the change must show the court that there is a reasonable probability that a fair and impartial trial cannot be held in the original venue. When bias or prejudice is the basis for seeking the change of venue, the party requesting the change must demonstrate that due to the location of trial, the jury pool has been improper swayed regarding the evidence, merits of the case, or the character or reputation of the party.
Convenience and Justice A party may seek a change of venue under CCP Section 397 (d). This section provides that: "When there is no judge of the court qualified to hear an action pending in the court of any county, the judge of the superior court may, in the exercise of his or her discretion, upon such terms as may be just change the place of trial to any other county in the state." In other words, if a judge in a particular county has to recuse himself due to bias or otherwise, it may not be fair to other party to have to maintain the litigation in the same county.
Improper Venue When the improper venue is invoked, the party filing the motion must demonstrate that (i) the action was not properly commenced in the original venue; or (ii) the county where the original action was commenced is inappropriate under the provisions of the Code of Civil Procedures Sections 395 and 395.5.
How to Bring a Motion to Change Venue
A Motion for Change of Venue, or Motion to Move Venue, begins with California Form MC-040, "Motion to Change Venue and Notice of Hearing by Defendant and Supporting Declaration." The other party to the legal action is the "Respondent." The party filing the motion is the "Moving Parent," who must then prepare and file a form called "Prejudicial Effect of Venue in State Facilities: Judicial Council of California Form JV 550."
After moving to the county or area where the family lives or will be living, the Moving Parent is then entitled to the change of venue. This first move is often to the new county of residence. A change of venue may only be granted when the Moving Parent already resides in the new county, and both (or all) parents sign off on the motion. If this is not the case, the Moving Parent must convince the court that the move will be in the children’s best interest.
The Moving Parent needs to put together a proof of service. This is a written summary that your attorney will create for you, and it provides evidence that you have served the other party with a copy of the following paperwork:
You must also bring all applicable orders, supporting declarations, local rules, or law books that will assist the judge in deciding the Motion for Change of Venue.
Once you and your lawyer are ready, you serve the above-mentioned papers and notice to the Respondent parent. You must serve the papers at least 16 court days before the motion is scheduled to be heard. The Respondent parent may file a Response in the case; however, he or she is not required to do so. In fact, non-response is usually considered consent, according to the law. If the Respondent parent doesn’t file a Response, you can include a request for a Judgment by Default in the original case.
If the Respondent parent responds to the motion, he or she will file an Opposition with the court. You will then have an opportunity to reply to the Opposition with a Reply Declaration in Support of Motion for Change of Venue within 5 court days of receiving the Opposition.
The reply must point out which facts in the Respondent parent’s Opposition that he or she disputes. The Reply also has an option for you to add information and facts (known as new and different facts and arguments) that did not appear in the original motion. The Reply must also provide specific reasons why the motion should be granted.
Once the court receives your reply to the Opposition, it will decide the Motion for Change of Venue. In view of the law barring unnecessary inconvenience to the children, the motion is almost always granted if the child’s residence is actually changed.
How to Use the California Venue Change Form
California has its own form for a motion for change of venue from superior court. The website for the California courts provides the basic information about the form. The official form can also be found at the website. It is called "Application to Set Aside/Vacate Stipulation and Order for Publication/Alternative Publication" under the term "Civil Forms." It is form number CIV-140.
The application for change of venue form is four pages long. A single judicial council form cannot contain every single situation that could be encountered. Most situations will be covered, but it is important to look at the statutes and to always assert every single possible reason for obtaining the order. For example, in a California divorce case, even if the residency requirement is not met, the court in exceptional circumstances can acquire personal jurisdiction by the parties tendering themselves to the jurisdiction or by entering a general appearance.
For a motion for change of venue, some of the details required include information about the original marriage proceedings, such as the case number, trial court name, and date filed. There is a block to check if the case was filed on or after January 1, 2005. A box is provided for supporting evidence and if there is any other material to be considered by the court in addition to the written papers.
There are six numbered paragraphs that must be completed satisfactorily. The questions are designed to cover all the bases and to ensure that the court has the necessary information to make an informed decision. The first paragraph covers the necessary information to identify the parties to the original proceedings by the names used during the marriage. The information required includes the addresses, dates of birth or approximate age, and sex. The second paragraph requires information on the current filing and its relationship to the prior proceeding. The information provided is critical to allow the court to distinguish between the two cases so as not to use the wrong information in ruling on the motion.
The third paragraph requires information about the current residence of the party moving to change venue. The time and date of residence is important because it must be compared with the residency requirements imposed under California law. The fourth paragraph requires information on the prior proceedings and how the statute of limitations is governed. For example, in some family law matters, the statute of limitations is not tolled during the pendency of prior proceedings unless the matter is determined on the merits. The fifth paragraph requires information on whether the statute of limitations governing the prior proceedings has run so that the prior motion can be barred. Information is required about the date of service of the complaint or petition, and the entry of default. The sixth paragraph requires information on additional factors such as whether the court has continuing jurisdiction over the children, the proceeding is an enforcement of support, or the primary witness is being relocated.
The form concludes with a section where the signature and date of the person requesting change of venue. The request can be signed by the attorney or the party who is seeking the change of venue.
Objections to Motion to Change Venue
One of the common objections to a motion for change of venue is that the moving party actually suffers no prejudice from litigation in the original venue. In essence, the party opposing the change of venue has two defenses available to it: (1) that the case could be properly tried in either of the current venues, and (2) that there is no prejudice from remaining in the original forum. Responding to those claims is important.
The party resisting the motion may also contend that the motion itself is premature. A motion is not premature simply because it is filed before the action is at issue. However, if it appears that the trial court is likely to establish an early trial date, at which the moving party will be able to obtain a speedy trial in its chosen venue, the court in its discretion may deny the motion for change of venue on the ground of prematurity .
With respect to the availability of evidence, if the evidence is equally available to both parties, the balance favors refusing to change venue. This is especially so where the inconvenience is mutual. A change of venue is equally inconvenient to both parties where they reside within a relatively short distance of each other and either venue is equally accessible.
It may be that it is only the convenience of a witness which has been stated as the basis for the motion. A writer of the all too typical declaration from the moving party seeking to move the case to his or her own home territory would have you believe that the particular witness can only be produced in his county, but that other equivalent witnesses might be able to be produced in the new county. Witnesses are generally accorded no special status in motions for change of venue, the focus being upon the relative convenience of the parties.
Tips for California Change of Venue Motions
Consider Asking for a "Spot" in the Other Venue. If the Court decides to grant your motion for change of venue it may allow you to choose between the two counties on which you identified for your motion. Then, one of the judges in that County will determine if it will be transferred there. Be Realistic. The court will look closely at the convenience of the parties and witnesses and the relevant facts of the case when deciding on the motion. Be realistic in what you argue and do not overstate the issues. Remember that if it is determined that an alternate venue is equally or more convenient than the current venue, it is unlikely the court will grant your motion. Prove Your Case. The first thing you need to do is prove your motion for change of venue is well founded by presenting factual evidence, not just the reasons why you believe it should be granted. California Code of Civil Procedure provides a list of factors that will make your case eligible for change of venue:
- Controversy properly triable in another court.
- Inconvenient place for trial for all parties, for the witnesses, and for the ends of justice.
- Plaintiffs’ convenience.
- Balance of convenience of parties.
- Stay of proceedings until transfer order filed.
- Transfer to family law division.
- Special rules for change of venue in certain cases involving public agencies.
- Inapplicability of other statutes considering convenience of parties.
- Discretion of appellate court to review change of venue order.
- Additional considerations in class actions and representative actions. (ยง 396 – 397.6, as amended and added by Stats. 2003, Ch. 610, Sec. 1.) Consider the Timing. Generally, a motion for change of venue must be made at least 30 days before the trial. However, the court can decide whether or not to accept a late motion for change of venue based on good cause shown. if a motion is made close to the scheduled trial date there may be an additional burden of showing diligence. Exceptions to the 30-day rule are class actions, international arbitration, representative actions, adoption proceedings, conservatorship, guardianship or any other probate related actions. Consider What Can be Done Once the Notice of Transfer has Been Filed. In some cases, a party can ask the transferor court (the court where the original papers were filed) for a stay of proceedings (meaning the case cannot proceed) for some (often short period) period of time while the transferee court (the court to which the case has been transferred) gets itself ready to take control of the case, while a stay is in force. Carefully Plan the Selective Waiver. Selective waiver is the process by which a plaintiff agrees to seek relief from only certain issues, as opposed to all of those potentially viable under the law. This type of waiver would allow the defendant(s) to focus the scope of the case to the critical issues, while not having to defend the less important. There are many circumstances where the defendant will want to consider waiver, but they should carefully plan selective waivers to avoid beyond the scope in any number of directions.
Case Examples of Change of Venue
To put these principles to practical use, let’s consider how an actual motion for change of venue may play out in the California courts.
Case 1 – Motion for Change of Venue Granted
Suppose plaintiff, a minor at the time of the alleged incident, was bitten by a dog. When the dog attacked, plaintiff happened to be walking in a park located in San Bernardino County. Plaintiff’s grandfather owned the dog, and so plaintiff sues both the owner and his grandfather for damages in San Bernardino County superior court, where the dog and owner reside.
The owner and grandfather respond by filing a motion for change of venue. They argue that since they are owners and residents in a different county (Los Angeles County), all the material and key witnesses of the case are located at the proper venue of Los Angeles County superior court.
The animal reasonably confined itself within the physical limits of Los Angeles County. The dog is now being kept in a gated area in Los Angeles County. Any medical experts examining the dog, the dog’s owner, and other potential witnesses to the dog attack reside in Los Angeles County. And the grandfather and owners themselves would be required to make special arrangements to attend and testify at the trial in San Bernardino County.
The opportunity for witnesses to offer better testimony at trial in Los Angeles County would become available to the dog owner and grandfather. This is possible because the dog owner has no way of knowing if the judges of the San Bernardino County superior court will be more or less accommodating than the judges of the Los Angeles County superior court when it comes to inconveniences to the dog owner and grandfather. It is possible that the Los Angeles County court would be willing and able to grant more lenience to the owners and grandfather in terms of time needed to prepare and respond to any discovery and evidence presented at trial. These considerations would heavily weigh in favor of granting the change of venue.
However , cases arise that never progress beyond the very first page of the complaint. Suppose, for example, that neither dogs nor dog bites are in issue in this case at all. The underlying case is rather about a breach of contract, which the dog owner has with a specialty store for dog food, and which breach plaintiff, the son of the dog owner, witnesses in the park when he clearly sees plaintiff bite his dog owner’s hand. The store and plaintiff are both citizens and residents of San Bernardino County. Thus, if the dog owner is sued in San Bernardino County for breach of contract, aside from issues on personal convenience, the case is appropriately handled in San Bernardino superior court. The breach of contract did not happen in Los Angeles County and it did not arise out of or from any antecedent dog bite incident.
A final point to note is that under California Code of Civil Procedure section 395, in the event that a successful motion for change of venue is made by one or more of the defendants, and the court which has jurisdiction over the original action is not the only one that may act in accordance with this section, the court ordering the transfer of venue has a specific duty. That is, the transferring court must make an order by which the entire record of the action and all proceedings to be transferred to the court designated by the order as the court in which the action is to proceed. Upon the court granting that order, the action in the transferring court is then immediately stayed until a certified copy of the transferring order, together with the full record of the action, is deposited in the court designated to receive the transferred action.
