Filed 2/28/18; Certified for Publication 3/26/18 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION SEVEN


WALT DISNEY PARKS AND                           B284261
RESORTS U.S., INC.,
                                                (Los Angeles County
        Petitioner,                             Super. Ct. No. BC595235)

        v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

        Respondent.

JOHNNY GALVAN et al.,

        Real Parties in Interest.


      ORIGINAL PROCEEDING. Petition for writ of mandate,
Rita Miller, Judge. Petition for writ of mandate granted.
      McDermott Will & Emery, A. Marisa Chun and Gregory R.
Jones for Petitioners.
      No appearance for Respondent.
      Law Offices of Scott E. Schutzman and Scott E. Schutzman
for Real Parties in Interest.
                   __________________________

       Petitioner Walt Disney Parks and Resorts U.S., Inc.
petitioned this court for relief from an order of the Los Angeles
Superior Court denying Disney’s motion to transfer venue as
untimely. Because we conclude that the court erred in
determining the motion was time-barred, we grant the petition
for a writ of mandate and direct Respondent court to consider the
motion on the merits.

         FACTUAL AND PROCEDURAL SUMMARY

      Plaintiffs and real parties in interest Johnny Galvan,
Sandy Mumma, and Stavros Patsalos (real parties) filed their
complaint for damages in Los Angeles County Superior Court on
December 6, 2016. Real parties asserted breach of contract
claims, as well as claims for negligent and intentional infliction of
emotional distress, arising out of visits to Disneyland Park in
Anaheim in 2015. The contracts alleged annual passes and daily
admission tickets contain venue selection clauses establishing
Orange County, California as the proper venue for any litigation.
      Disney answered the complaint on January 12, 2017 and
removed the action to federal court the next day, asserting
diversity jurisdiction. The federal court remanded the matter in
March 2017; Disney filed its motion to transfer venue on April 17,
2017, citing as grounds Code of Civil Procedure sections 396b
subdivision (a) and 397 subdivision (a). 1 Plaintiffs opposed the
motion, arguing that it was untimely, and, in any event, that



1    Further statutory citations are to the Code of Civil
Procedure.


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Disney’s county of residence was Los Angeles. The court heard
and denied the motion on July 20, 2017.

      The Trial Court’s Ruling

      In a hearing at which no court reporter was present, the
court considered the arguments of counsel 2 and adopted its
tentative ruling. The court denied the motion without prejudice
to defendant filing a different motion, which the court did not
identify.
       Disney had argued: First, that its removal of the action to
federal court served to extend its time to file the motion until
after the remand; and second, that section 397, the alternative
ground for the motion, is not subject to the timing requirements
of section 396b, but instead grants the court discretion to change
venue where the matter was not filed in the proper court. The
court rejected Disney’s arguments, concluding that the motion
would have been untimely even before the removal to federal
court. The court also found that a defendant waives its right to
ask the court to exercise its discretion under 397 if it fails to
comply with the time requirements of 396b, and denied the
motion.


2      Both petitioner and real parties attempted to provide
information concerning the oral proceedings, but failed to provide
either a transcript or a settled statement. While California Rules
of Court, rule 8.486(b)(3) permits declarations where a transcript
of the proceedings is not available, that rule requires a fair
summary of the proceedings “including the parties’ arguments
and any statement by the court supporting its ruling.” Neither
declaration met the requirements of the rule. Accordingly, our
review is solely based on the pleadings and the court’s order.


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       Disney filed a petition for writ of mandate, and this Court,
after real parties filed preliminary opposition, issued an Order to
Show Cause on September 14, 2017.

                          DISCUSSION

   A. We Review The Trial Court’s Ruling De Novo

      Disney’s motion to change venue was explicitly based on
both sections 396b and 397. The court ruled, as a matter of law,
that the motion was untimely; the facts were not disputed and
the court did not resolve any issues of fact in making its decision.
Accordingly, we review that decision de novo. See
Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80
Cal.App.4th 948, 959 [“Questions of law relate to the selection of
a rule” and are reviewed de novo]; Dow AgroSciences LLC v.
Superior Court (2017) 16 Cal.App.5th 1067, 1076 [in case
involving power to transfer where action filed in improper court,
de novo review is appropriate where the statute is applied to
undisputed facts].

      B. The Strict Time Requirements of Section 396a Did Not
         Bar Disney’s Motion under Section 397

   1. The Statutory Scheme

       Section 396b, which requires the court to grant a timely
motion, provides:
       “(a) Except as otherwise provided in Section 396a, if an
action or proceeding is commenced in a court having jurisdiction
of the subject matter thereof, other than the court designated as
the proper court for the trial thereof, under this title, the action
may, notwithstanding, be tried in the court where commenced,



                                  4
unless the defendant, at the time he or she answers, demurs, or
moves to strike, or, at his or her option, without answering,
demurring, or moving to strike 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, together with proof of service, upon the adverse
party, of a copy of those papers. Upon the hearing of the motion
the court shall, if it appears that the action or proceeding was not
commenced in the proper court, order the action or proceeding
transferred to the proper court.”

      Section 397, which gives discretion to the court, provides, in
relevant part,
      “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.”

   2. Failure To Comply With 396b Does Not Automatically
      Waive A Party’s Rights

      Disney argues that, reading the two provisions together,
and harmonizing their provisions, the mandatory provision
embodied in section 396b is time-limited, while the discretionary
provision in section 397 is not. Opposing the petition, real
parties assert that Disney did not argue it was entitled to relief
under section 397 at the trial court, and that the denial of the
motion without prejudice specifically permitted Disney to file a
motion under that section. Real parties appear to make these




                                 5
arguments without a basis in the record. 3 Real parties do not
provide any legal authority supporting the respondent court’s
ruling.
       The authority on which respondent court relied was
Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295. In that
case, defendants filed a motion for change of venue, based on the
convenience of witnesses, one month before trial. The trial court
denied the motions. On appeal, the court found no abuse of
discretion, concluding that “[t]he determination of motions for
change of venue upon grounds specified in subdivision 3 of
section 397 of the Code of Civil Procedure rests largely in the
sound discretion of the trial judge”. (Id. at p. 293.) With respect
to the timing issue, the court concluded that the motions, made
so close in time to the trial date, had not been made within a
reasonable time. (Id. at p. 295.)
       Citing Willingham, the trial court here reasoned that the
rule allowing motions to be filed within a reasonable time applied
only to motions based on the convenience of witnesses. While
sections 396b subdivision (a) and 397 subdivision (a) both refer to
“wrong court” filings, only section 397 addresses the convenience
of witnesses. Recognizing that section 397 expressly grants
discretion to the court to consider “wrong court” filings, the court
held that the timing limitations in section 396b for mandatory

3     First, Disney’s motion for change of venue specifically
argued, citing relevant authority, that both provisions supported
granting its motion for change of venue. Second, the record before
this Court demonstrates both that the court found the motion
untimely under both provisions, and that the court did not
explain under what provision it believed Disney could file an
additional motion.



                                 6
relief in such cases did not limit the discretion section 397 gives
to the court. Instead, the court concluded, the time requirements
limit the moving defendant; by failing to comply with the
requirements of section 396b, Disney waived its right to move for
a change of venue. The case law concerning waiver does not
support the conclusion of the trial court, and real parties cite no
authority in support of that conclusion. 4 The court erred in
finding waiver as a matter of law.
       In Lyons v. Brunswick-Balke-Collender Co., (1942) 20
Cal.2d 579, 582, the Supreme Court considered the issue of
waiver in motions to change venue. The defendant in that case
moved to change venue to his county of residence, pursuant to
sections 396b and 397; he filed the motion after filing the
demurrer, but prior to the hearing. Plaintiffs moved to strike the
filing, arguing defendant had waived his right to seek the change
of venue by not complying with the time limitations of section
396b; the trial court denied the motion to strike and granted the
motion to change venue. (Id. at p. 581.)
       The Supreme Court affirmed the order, beginning its
discussion by commenting: “Section 396b of the Code of Civil
Procedure permitting the defendant to have certain actions tried
in the county where he resides is remedial in nature and should

4      Real parties have waived the argument that the respondent
court properly interpreted the statute by failing to provide
argument or authority on this point. (Utility Consumers’ Action
Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688, 697
[“If a party fails to support a claim of error with argument, or
support an argument with the necessary citations to the record,
we may deem the argument waived. In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 830, 79 Cal.Rptr.3d 588; Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246, 19 Cal.Rptr.3d 416].)”


                                 7
be liberally construed to the end that a defendant may not be
unjustly deprived of that right. (Lundy v. Lettunich (1920) 50
Cal.App. 451, 195, P. 451; Code Civ. Proc. § 4.) Therefore in
considering this appeal we must be guided by that principle.” (Id.
at p. 582.)
       The Court examined the cases applying waiver to failure to
comply with section 396b, and concluded that those cases did not
require as a matter of law that waiver be found in every case.
“Waiver is ordinarily a question of fact. (25 Cal. Jur. 932.) While
it may be true that the failure to institute proceedings for change
of venue on the ground of residence at the time of filing a
demurrer or answer, standing alone, requires as a matter of law
that relief be denied when an attempt to obtain it is made by
later proceedings, there is nothing in section 396b or the cases
heretofore cited, which compels a holding that such waiver occurs
as a matter of law where, as in this case, there is a sufficient
showing that there was no intent to waive the right or to invoke
the jurisdiction of the court in which the action is commenced,
and the defendant has acted in good faith and with diligence. To
blind one’s self to the realities by a slavish adherence to
technicalities is not consonant with justice or the liberal
tendencies with respect to rules of procedure and practice. To
give the construction to section 396b contended for by plaintiffs
would be unreasonable and out of line with the rules pertaining
to waiver. Furthermore, it would require a strict and literal,
rather than a liberal interpretation of that section.
       The right of the defendant to have certain actions tried in
the county of his residence ‘is an ancient and valuable right,
which has always been safeguarded by statute and is supported
by a long line of judicial decisions. “The right of a plaintiff to




                                8
have an action tried in another county than that in which the
defendant has his residence is exceptional, and, if the plaintiff
would claim such right, he must bring himself within the terms of
the exception’’ [citations omitted.]’” (Lyons, supra, 20 Cal.2d at
p. 584; see also Van Gaalen v. Superior Court (1978) 80
Cal.App.3d 371, 378, fn. omitted [“[T]he time limit for filing a
notice of motion for change of venue prescribed by section 396b is
not jurisdictional in the sense that a trial court is without power
to entertain an untimely [filed] motion.”].)
       The Lyons court found no waiver under the circumstances
of that case. Here too, the record reflects no evidence of an intent
to waive. Disney sought promptly to comply with federal rules on
removal (28 U.S.C. § 1441), and made its venue motion shortly
after the federal court remanded the case. This, like the actions
of the defendant in Lyons, does not demonstrate consent for the
case to be tried in state court in Los Angeles County; to the
contrary, every action taken by Disney demonstrated its
assertion that the case was not properly venued there. This
record does not support a finding of waiver as a matter of law.

      C. Principles of Statutory Construction Support Disney’s
         Motion

      Respondent court, in determining that Disney’s motion was
barred, construed sections 396b and 397 to arrive at its
conclusion. That result was not, however, compelled by
application of the rules of statutory construction.
      When confronted with two statutes, one of which contains a
term, and one of which does not, we do not import the term used
in the first to limit the second. Instead, it is our obligation to
interpret different terms used by the Legislature in the same




                                 9
statutory scheme to have different meanings. (Roy v. Superior
Court (2011) 198 Cal.App.4th 1337, 1352, 131 Cal.Rptr.3d 536
[“[w]hen the Legislature uses different words as part of the same
statutory scheme, those words are presumed to have different
meanings’”]; Romano v. Mercury Ins. Co. (2005) 128 Cal.App.4th
1333, 1343, 27 Cal.Rptr.3d 784 [same], see Brown v. Kelly
Broadcasting Co. (1989) 48 Cal.3d 711, 725, 257 Cal.Rptr. 708,
771 P.2d 406 [‘“‘when the Legislature has carefully employed a
term in one place and has excluded it in another, it should not be
implied where excluded.’”’] (Regents of University of California v.
Superior Court (2013) 220 Cal.App.4th 549, 558.)
       Where, as here, the Legislature has chosen to include a
phrase in one provision of the statutory scheme, but to omit it in
the another provision, we presume that the Legislature did not
intend the language omitted from the first to be read into the
second. (Cornette v. Department of Transportation (2001) 26
Cal.4th 63, 73 [“When one part of a statute contains a term or
provision, the omission of that term or provision from another
part of the statute indicates the Legislature intended to convey a
different meaning.”]; see also Craven v. Crout (1985) 163
Cal.App.3d 779, 783 [“Where a statute referring to one subject
contains a critical word or phrase, omission of that word or
phrase from a similar statute on the same subject generally
shows a different legislative intent.”]; Campbell v. Zolin (1995) 33
Cal.App.4th 489, 497 [“Ordinarily, where the Legislature uses a
different word or phrase in one part of a statute than it does in
other sections or in a similar statute concerning a related subject,
it must be presumed that the Legislature intended a different
meaning.”])




                                10
        In arriving at the conclusion that a defendant moving for a
change of venue under section 397 is barred if the motion was not
made in compliance with the timing requirements of section
396b, respondent court violated these principles of statutory
construction. The issue is not bar, despite the court’s conclusion
that “defendant cannot bring the motion if it is not brought
timely.” Instead, the court must determine if the record
demonstrates waiver. This the trial court failed to do; had it done
so, it could only have concluded, on the undisputed facts in this
record, that Disney did not waive its right to seek a change of
venue.
                            DISPOSITION
        The petition is granted and the superior court is ordered to
vacate its order denying the motion for change of venue and to
hold a new hearing at which it will consider Disney’s motion for
change of venue on its merits. Petitioner shall recover its costs.



                                     ZELON, Acting P. J.



We concur:



      SEGAL, J.                      BENSINGER, J. ∗




∗     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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Filed 3/26/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION SEVEN


WALT DISNEY PARKS AND                B284261
RESORTS U.S., INC.,
                                     (Los Angeles County
       Petitioner,                   Super. Ct. No. BC595235)

       v.
                                     ORDER CERTIFYING
THE SUPERIOR COURT OF                OPINION FOR
LOS ANGELES COUNTY,                  PUBLICATION

       Respondent.

JOHNNY GALVAN et al.,

       Real Parties in Interest.


       THE COURT:
       The opinion in this case filed February 28, 2018 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), the request by petitioner pursuant to California
Rules of Court, rule 8.1120(a) for publication is granted.
      IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
      ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.



____________________________________________________________
ZELON, Acting P. J., SEGAL, J., BENSINGER, J. (Assigned)




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