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Ease of Zoom Testimony and CCP § 367.75 Not Enough to Defeat Venue and CCP § 397

An extremely tragic case arose when a UCSD student was killed after walking into freeway traffic in early morning hours.  She had been drinking with friends who ordered an Uber for her to go back to her dorm on campus.  During the ride, she vomited in the vehicle and was asked if she wanted to go back to the origin of her ride or get out.  Evidently, she opted to leave the Uber, getting out on the side of the road.  Once out, she ordered another Uber to take her back to her dorm.  When the second Uber driver arrived, the student refused to get in and ran into some bushes alongside the roadway.  Thirty minutes later, she was seen walking into traffic, ultimately being struck and killed.  The student’s family brought a suit against, among others, Uber and its drivers.  The suit was filed in San Francisco.

One of the drivers, Mr. Rycz, moved, pursuant to CCP § 397(c) to have the venue changed to San Diego, arguing that, among other things, this is where the incident occurred, it is where the two alleged dangerous conditions are located, and where the vast majority of the relevant and third-party witnesses are based.

Petitioner’s argument continued: “the vast majority of the relevant third-party witnesses—police officers, fire department personnel, AMR personnel, toxicologists, coroners, etc.—are from the County of San Diego. … [T]he events and circumstances leading to [Yeh’s] death [were] investigated by the California Highway Patrol in San Diego, the automobile accident causing her death occurred on a freeway in the County of San Diego, and [Yeh’s] body was handled by government personnel in the County of San Diego following [*8]  her death. [Citation.] Police officers from the County of San Diego also met with relevant percipient witnesses who lived [in] and were from the County of San Diego in order to investigate the cause of [Yeh’s] death, and [Yeh’s] belongings were also taken and tested by the local police and a local lab in the County of San Diego.”

Plaintiff’s counsel argued that the case should remain in San Francisco as that is where Uber is based.

The Superior Court denied the motion to change venue, reasoning:

“[Petitioner’s] motion ignores the sea change in litigation over the past 18 months. Many depositions and much trial testimony are now given via audio/video platforms such as Zoom. This is certainly what San Francisco jurors expect. Thus, it matters little, if at all, where a witness resides at the time of trial as travel is unnecessary.” (Rycz v. Superior Court (July 28, 2022, No. A163741) ___Cal.App.5th___ [2022 Cal. App. LEXIS 668, at *10].)

The Court also dismissed the possibility of jurors visiting the San Diego locations involved in the case, reasoning:

“given modern video technology, such visits are rare. Moreover, the at-issue events occurred in the 1 a.m. time frame, so a jury visit at that time would be required to try to replicate conditions. Such a visit would be even more unlikely.” (Rycz v. Superior Court (July 28, 2022, No. A163741) ___Cal.App.5th___ [2022 Cal. App. LEXIS 668, at *10].)

Mr. Rycz appealed this ruling.  On Appeal, the First District Court of Appeal reversed and granted the motion, transferring the case to San Diego.

The Court of Appeal reasoned:

The Superior Court erred in finding that the availability of remote testimony made it unimportant whether most witnesses were located in San Diego. Remote trial testimony may well be routine, even after the pandemic recedes. Attorneys and the courts may become so effective at presenting remote testimony that a consensus forms that remote testimony is adequate in civil cases for all but the most critical witnesses. However, even putting aside the temporary nature of the scheme, section 367.75 and rule 3.672 do not reflect any such judgment—instead, the scheme leaves the determination to a court’s informed, individualized exercise of discretion. Moreover, even if a consensus were to emerge in favor of remote testimony, that would not mean the locations of witnesses is irrelevant, given the discretion afforded the trial judge to require in-person testimony. In sum, construing section 367.75, rule 3.672, and section 397, subdivision (c) in harmony (State Dep’t of Pub. Health v. Superior Ct. (2015) 60 Cal.4th 940, 955 [184 Cal. Rptr. 3d 60, 342 P.3d 1217] [*25] ), the availability of remote testimony is a circumstance that may ease the inconvenience for any witnesses that live in a location distant from the site of trial, but it is not a proper basis for denying a motion to transfer a case to the county where most witnesses are located.

(Rycz v. Superior Court (July 28, 2022, No. A163741) ___Cal.App.5th___ [2022 Cal. App. LEXIS 668, at *24-25].)

That analysis complete, the Court of Appeal went on to rule that the petitioner had more than made a showing that the appropriate venue in the case was San Diego, not San Francisco.

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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