Dow Agrosciences LLC v. Superior Court of Alameda Cnty.
16 Cal. App. 5th 1067
| Cal. Ct. App. 5th | 2017Background
- CEH sued Dow in Alameda County under Proposition 65 (Health & Safety Code §25249.6), alleging Dow's soil fumigant (Telone, containing 1,3‑D) exposes Shafter residents/workers to a carcinogen without clear warnings.
- Complaint seeks both injunctive relief and statutory civil penalties under Prop 65 (up to $2,500/day) and attorney fees.
- Dow is a nonresident corporation with no designated principal place of business in California; the alleged exposure (the cause) arose in Kern County.
- Dow moved to transfer venue to Kern County under Code Civ. Proc. §393(a) (actions to recover a statutory penalty/forfeiture must be tried where the cause arose).
- Trial court denied the motion, reasoning the primary relief was an injunction (a transitory remedy) so venue was proper in any county under §395(a).
- The court of appeal granted mandamus, holding §393(a) applies and directing transfer to Kern County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §393(a) (venue where cause arose for recovery of a statutory penalty/forfeiture) governs venue for a Prop 65 private enforcement action | CEH: §393(a) does not apply; the action primarily seeks an injunction (transitory), so §395(a) allows venue in any county because Dow is nonresident | Dow: CEH seeks statutory penalties; §393(a) applies and the proper venue is Kern County where the cause arose | Held: §393(a) applies; Kern County is the proper venue because CEH seeks statutory penalties enforcing Proposition 65 |
| Whether the “main relief” / local vs transitory analysis controls application of §393(a) | CEH: court must apply the main‑relief rule to decide whether the action is local or transitory; main relief is injunction (transitory) | Dow: §393(a) applies by its plain terms where plaintiff seeks recovery of a statutory penalty; local/transitory analysis is for §392(a) real‑property cases | Held: Main‑relief/local‑vs‑transitory analysis is inapplicable here; it is chiefly used for §392(a) (real property) issues and does not defeat §393(a) |
| Whether an injunction under Prop 65 is a “forfeiture” within §393(a)’s phrasing | CEH: an injunction is not a forfeiture and is classic transitory relief, so §393(a) should not apply | Dow: The complaint seeks the statutory penalty in addition to injunction; §393(a) speaks to actions to recover a statutory penalty or forfeiture regardless of label | |
| Held: The court rejects the narrow forfeiture definition argument; because CEH seeks statutory penalties under Prop 65, §393(a) governs venue | |||
| Whether other venue statutes or doctrines (e.g., §395.5 or transfer for convenience) alter the result | CEH: relies on §395(a) and argues §395.5 or nonresident rule expand venue options | Dow: §393(a) supplants §395(a) where it applies; convenience transfer not at issue here | Held: §393(a) controls venue selection here; court did not decide discretionary transfer/convenience motions |
Key Cases Cited
- Brown v. Superior Court, 37 Cal.3d 477 (Cal. 1984) (discusses venue rules and when statutory venue provisions may govern joined claims)
- Peiser v. Mettler, 50 Cal.2d 594 (Cal. 1958) (explains local vs transitory analysis and the "main relief" rule in the real‑property context)
- County of Riverside v. Superior Court, 69 Cal.2d 828 (Cal. 1968) (section 393 can override general venue rules when it applies)
- Regents of Univ. of Cal. v. Superior Court, 3 Cal.3d 529 (Cal. 1970) (statutory venue provisions determine proper county where applicable)
- California State Parks Foundation v. Superior Court, 150 Cal.App.4th 826 (Cal. Ct. App. 2007) (applies §393(b) to public‑rights CEQA enforcement; statutory venue can govern even when relief is public/equitable)
- Foundation Engineers, Inc. v. Superior Court, 19 Cal.App.4th 104 (Cal. Ct. App. 1993) (distinguishes local actions from transitory actions and venue implications)
- Fontaine v. Superior Court, 175 Cal.App.4th 830 (Cal. Ct. App. 2009) (mandate available from orders granting/denying change of venue)
- DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (Cal. Ct. App. 2007) (characterizes Proposition 65 as informational/preventive with equitable enforcement mechanisms)