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Need to Challenge Venue

By George Williams,2014-06-17 20:40
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Need to Challenge Venue

Venue: Challenging Venue in Small Claims Court (CCP 116.370)

What is Venue?

    Venue is the place of a cause of action and the jurisdiction where a case is heard. A

    case must be filed in the correct court location and venue. The appropriate venue must

    be one of the following:

    ? Where the Defendant lives or Defendant’s business is located.

    ? Where the Plaintiff’s property was damaged.

    ? Where the Plaintiff was injured.

    ? Where a contract (written or spoken) was made, signed, performed, or broken by

    the Defendant or where the Defendant lived or did business when the Defendant

    made the contract1

    How Do I Challenge Venue?

    If you feel that the plaintiff has filed in the wrong court, or venue, you may be able to

    challenge that venue.

    ? Challenge venue by writing a letter to the court. Address the letter to the judge

    (Dear Judge, name not needed), explaining why the plaintiff's choice of venue

    was incorrect and send a copy of your letter to the other party. Make sure you

    include a notation in the letter that you mailed it to the other party.

You may also:

    ? Challenge venue by objecting to the venue at the hearing. If the judge decides

    that the plaintiff's choice of venue was proper, then the hearing will proceed. If

    the judge decides that the plaintiff's choice of venue was improper, the case may

    be transferred to the proper venue or dismissed without prejudice. If the case is

    dismissed, the plaintiff may then sue you in the proper venue.

    NOTE: If you feel that it would be more convenient to have the hearing in the county

    selected by the plaintiff (because, for example, you live in a neighborhood county

    only five miles from the courthouse), you could appear at the hearing and waive

    (give up) your right to challenge venue.

Must I Appear at the Hearing?

    If you have challenged venue by submitting a letter, you do not need to attend the

    hearing. If the judge believes the venue is proper and you are not present at the hearing,

    the judge cannot render a decision on the plaintiff’s claim and must postpone the

1 Other rarely used venue provisions ? Where the buyer or lessee signed the contract, lives now, or lived when the contract was made, if a claim is about an offer or contract for personal, family, or household goods, services or loans. (CCP ? 395(b)) ? Where the buyer signed the contract, lives now, or lived when the contract was made, if this claim is about a retail installment contract (like a credit card). (CC ? 1812.10) ? Where the buyer signed the contract, lives now, or lived when the contract was made, or where the vehicle is permanently garaged, if this claim is about a vehicle finance sale. (CC ? 2984.4)

hearing for 15 days. If the judge believes the venue is improper, then the case will

    either be transferred or dismissed without prejudice.

Here is the exact language in the statute:

    CCP 116.370 (c)(2) If the court determines that the action was commenced in the

    proper venue and court location, the court may hear the case if all

    parties are present. If the defendant challenged venue or court

    location and all parties are not present, the court shall postpone

    the hearing for at least 15 days and shall notify all parties by mail

    of the court's decision and the new hearing date, time, and place.

Even if you do not challenge venue, it is the judge’s obligation to find that the location of

    the hearing is proper. Also, even if the location of the court selected by the plaintiff is

    correct the judge may, on rare occasion, transfer the case to another court that is more

    convenient for the parties and their witnesses (for example, you have many witnesses

    who must travel to the court from a distant location), the judge may order that the case

    be transferred to a court near that location. In evaluating transfer requests, the courts

    give greater weight to the convenience of those disputants who are individuals rather

    than those that are legal entities such as corporations, partnerships, and public

    entities.

SAMPLE LETTER:

John Smith (Your name and address)

    123 Sunnyside Ave.

    San Francisco, CA 90000

    (510) 555-1234

(DATE)

Judge of the Superior Court

    County of Orange

    700 Civic Center Dr.

    Santa Ana, CA 92701

Re: Improper Venue

Dear Judge,

I am the defendant in case number ________ and I wish to challenge the venue chosen

    by the plaintiff. The current venue is improper because____________

    (for example: My business is located in San Francisco. The plaintiff called me in San

    Francisco and ordered three boxes of widgets. Those widgets were shipped from my

    facility in San Francisco. The defendant sent payment to me in San Francisco yet, the defendant is suing me in Orange County). I believe the proper venue for this case is __________ (San Francisco because everything happened in San Francisco). Thank you for your consideration.

    I declare under penalty of perjury that the foregoing is true and correct.

Sincerely,

__________________

    John Smith

JS/

Copy: Joe Plaintiff, 123 Melrose Pl., Santa Ana, CA 92701

    (You need to show to the Judge that you sent a copy of this letter to the other party.)

For more information or assistance you can contact:

    Small Claims Advisory Program

    Legal Aid Society of Orange County

    2101 N. Tustin Ave.

    Santa Ana, CA 92705

    Phone: (714) 571-5277

    www.ocsmallclaims.com

Code of Civil Procedure:

    www.leginfo.ca.gov/calaw.html

Revised 4/10

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