California appellate court approves venue change in Dow Agroscience suit

By Jireh Gibson | Dec 15, 2017

SAN FRANCISCO (Legal Newsline) – On Nov. 6, California’s 1st District Court of Appeal overturned a lower court's decision by ruling that the denial of Dow Agroscience’s motion for a change of venue in a Safe Drinking Water and Toxic Environment Act suit was an error.

The Alameda County Superior Court was ordered by the appellate court to vacate its March 1 order denying the motion and change of venue to Kern County.

According to the ruling, the case began when the Center for Environmental Health (CEH) filed a complaint in Alameda County against Dow Agrosciences LLC and other unnamed defendants for allegedly violating the California Safe Drinking Water and Toxic Enforcement Act of 1986.

The order states CEH claimed Dow failed to warn individuals living and working in Shafter, located in Kern County, regarding a soil fumigant manufactured by the chemical company that could potentially cause cancer. Dow’s response to the complaint included a motion to transfer the case to Kern County where the cause of action arose. 

However, the trial court denied the motion, finding that the venue is proper in any county since Dow is a nonresident of California and because the company does not have a principal place of business within the state, according to section 395 of the code.

The code cited by the lower court included actions for personal injury or individual property resulting from the defendant’s negligence may be filed in the county where the injury occurred, or in which the defendant resides. 

CEH also relied on another provision in the code in this case, which states: "If none of the defendants live in the state or if they reside in the state and the county where they reside is not known to the plaintiff, the action may be tried in the superior court in any county the plaintiff designates in the complaint," according to the ruling.

The order states that it is "well established" that a defendant is entitled to file for a change of venue and to have the trial in the county of their residence unless the action falls within some specific exceptions to the standard venue rule. Therefore, Dow petitioned the appellate court to challenge the trial court’s decision.

In the complaint, CEH requested a statutory penalty and injunctive relief, claiming they are part and parcel of its private citizen’s action to enforce the Safe Drinking Water Act. 

However, they are not "inconsistent forms of relief for selecting a venue," as CEH contends, according to the order. 

Furthermore, the allegations bring this case under the exception which states "that the proper venue for an action for the 'recovery of a penalty or forfeiture imposed by statute'" is the county in which the cause arose in part or whole, the order states.

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