Is the ability for video-testimony a consideration for changing venue for party and witness convenience?

By Eric Ganci

Rycz v. Superior Court of San Francisco

In San Diego, and I assume every other county and court in California…probably the United States, our Courts have taken to the use of video-conferencing instead of in-person hearings. Yes, this is true even for trials.

In the age of Zoom and Microsoft Teams hearings, this case is ripe.

This July 28, 2022 filing of Rycz v. Superior Court of San Francisco (cited as 2022 WL 2980934) poses an interesting question: should a Court consider our ability to video-conference when deciding when to grant a motion to change the venue of a case?

Or to put it as the Court addressed in Rycz, did the Trial Court err in concluding since we have the ability for remote testimony, it was thus not important most witnesses were in San Diego and not San Francisco where the case was filed? The answer here is yes, the Court erred. “The Superior Court erred in finding that the availability of remote testimony made it unimportant whether most witnesses were located in San Diego.”

What happened in Rycz?

In San Diego, Plaintiff is “high intoxicated” and gets into an Uber. Uber Driver 1 ends Uber Ride 1, ordering Plaintiff out of Uber Drive 1’s car. Plaintiff orders Uber 2. Uber 2 arrives, but Plaintiff “did not enter that car and instead left the area.” 90 minutes later, Plaintiff walks on the freeway and 2 cars hit and kill Plaintiff.

Plaintiff files suit against Uber in San Francisco. Other parties file a motion to move the case to San Diego (per Code of Civil Procedure 397), where many of the witnesses are located.

The law:

These are direct quotes from Rycz:

“Under section 392 et seq., a plaintiff may file an action or proceeding in various locations, depending on the classification of the action and the classification of the parties. Where there are multiple parties and causes of action, venue may be proper in more than one county. Under section 397, subdivision (a), ‘[w]hen the court designated in the complaint is not the proper court,’ the court may, upon motion, ‘change the place of trial.’”

“[U]nder [CCP] section 397, subdivision (c), the court has discretion to transfer the case to another county “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change,” even if the complaint was filed in a “proper” county.”

“A moving party under [CCP] section 397, subdivision (c) must demonstrate the transfer will promote both the convenience of witnesses and the ends of justice. …Generally, the ‘convenience of the parties is not to be considered upon a motion for a change of venue.’ ‘Before the convenience of witnesses may be considered as a ground for an order granting a change of venue it must be shown that their proposed testimony is admissible, relevant and material to some issue in the case as shown by the record before the court.’” I took out the internal citations.

“’[T]he code imposes no express time limit within which [a section 397 motion to change venue] must be made. However, it has been stated that such motion must be made within a reasonable time after the answer is filed.’”

The Court’s analysis here:

“[CCP] Section 367.75, implemented by [California Rules of Court] rule 3.672, effectively establishes a presumption in favor of remote proceedings, including remote trial testimony, until July 2023.”

However, “[b]ecause none of the pandemic-related statutory or rule changes reflect an intent to supersede section 397, subdivision (c), the Superior Court erred.”

Sure, there is convenience with Zoom testimony, but it may not replace a witness testifying live on the stand. “There have been many benefits from remote proceedings, and [CCP] section 367.75 reflects a conclusion that remote testimony can be adequate. Nevertheless, one operating assumption of our system of justice has long been that the opportunity to observe witnesses ‘upon the stand and the manner in which they gave their testimony … in no small degree aid[s] in the determination of the truth and correctness of testimony.’”

“Of course, modern technology enables the judge and jurors to observe the face and tone of voice of a witness appearing remotely by video, which may be sufficient for the factfinder to make the necessary credibility determinations. However, nothing in the language or legislative history of [CCP] section 367.75 reflects a determination that the opportunity to observe a witness’ overall body language and demeanor is without value. In fact, the clear language of the statute establishes the exact opposite.”

The holding:

“The Superior Court abused its discretion in denying Petitioner’s motion to transfer venue to San Diego County.” And the Court here sends the case back to the Trial Court with the order to “enter a new order granting the motion [to transfer venue to San Diego].”