California Code of Civil Procedure. California

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СКАЧАТЬ order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party’s papers, or on the court’s own noticed motion, and after opportunity to be heard.

      (c) The court in a proceeding for dissolution of marriage or legal separation or under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code) may, prior to the determination of the motion to transfer, consider and determine motions for allowance of temporary spousal support, support of children, and counsel fees and costs, and motions to determine custody of and visitation with children, and may make all necessary and proper orders in connection therewith.

      (d) In any case, if an answer is filed, the court may consider opposition to the motion to transfer, if any, and may retain the action in the county where commenced if it appears that the convenience of the witnesses or the ends of justice will thereby be promoted.

      (e) If the motion to transfer is denied, the court shall allow the defendant time to move to strike, demur, or otherwise plead if the defendant has not previously filed a response.

      (Amended by Stats. 2005, Ch. 706, Sec. 10. Effective January 1, 2006.)

      397. 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.

      (b) When there is reason to believe that an impartial trial cannot be had therein.

      (c) When the convenience of witnesses and the ends of justice would be promoted by the change.

      (d) When from any cause there is no judge of the court qualified to act.

      (e) When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of the commencement of the proceeding is a resident of another county in this state, to the county of the respondent’s residence when the ends of justice would be promoted by the change. If a motion to change the place of trial is made pursuant to this paragraph, the court may, prior to the determination of such motion, consider and determine motions for allowance of temporary spousal support, support of children, temporary restraining orders, attorneys’ fees, and costs, and make all necessary and proper orders in connection therewith.

      (Amended by Stats. 1992, Ch. 163, Sec. 19. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.)

      397.5. In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party.

      (Amended by Stats. 1994, Ch. 1269, Sec. 2.6. Effective January 1, 1995.)

      398. (a) If a court orders the transfer of an action or proceeding for a cause specified in subdivisions (b), (c), and (d) of Section 397, the action or proceeding shall be transferred to a court having jurisdiction of the subject matter of the action upon agreement of the parties by stipulation in writing, or in open court and entered in the minutes or docket. If the parties do not so agree, the action or proceeding shall be transferred to the nearest or most accessible court where the like objection or cause for making the order does not exist.

      (b) If an action or proceeding is commenced in a court other than one designated as a proper court for the trial thereof by the provisions of this title, and the same is ordered transferred for that reason, the action or proceeding shall be transferred to a proper court upon agreement of the parties by stipulation in writing, or in open court and entered in the minutes or docket. If the parties do not so agree, the action or proceeding shall be transferred to a proper court in the county in which the action or proceeding was commenced which the defendant may designate or, if there is no proper court in that county, to a proper court, in a proper county, designated by the defendant. If the defendant does not designate the court as herein provided, or if the court orders the transfer of an action on its own motion as provided in this title, the action or proceeding shall be transferred to the proper court as determined by the court in which the action or proceeding is pending.

      (c) The designation of the court by the defendant as provided for in subdivision (b), may be made in the notice of motion for change of venue or in open court and entered in the minutes or docket at the time the order for transfer is made.

      (Amended by Stats. 2015, Ch. 303, Sec. 39. Effective January 1, 2016.)

      399. (a) When an order is made transferring an action or proceeding under any of the provisions of this title, the clerk shall, after expiration of the time within which a petition for writ of mandate could have been filed pursuant to Section 400, or if a writ petition is filed after judgment denying the writ becomes final, and upon payment of the costs and fees, transmit the pleadings and papers therein (or if the pleadings be oral a transcript of the same) to the clerk of the court to which the same is transferred. When the transfer is sought on any ground specified in subdivision (b), (c), (d), or (e) of Section 397, the costs and fees thereof, and of filing the papers in the court to which the transfer is ordered, shall be paid at the time the notice of motion is filed, by the party making the motion for the transfer. When the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees (including any expenses and attorney’s fees awarded to the defendant pursuant to Section 396b) shall be paid by the plaintiff before the transfer is made; and if the defendant has paid those costs and fees at the time of filing a notice of motion, the same shall be repaid to the defendant, upon the making of the transfer order. If those costs and fees have not been so paid by the plaintiff within five days after service of notice of the transfer order, then any other party interested therein, whether named in the complaint as a party or not, may pay those costs and fees, and the clerk shall thereupon transmit the papers and pleadings therein as if those costs and fees had been originally paid by the plaintiff, and the same shall be a proper item of costs of the party so paying the same, recoverable by that party in the event that party prevails in the action; otherwise, the same shall be offset against and deducted from the amount, if any, awarded the plaintiff in the event the plaintiff prevails against that party in the action. The cause of action shall not be further prosecuted in any court until those costs and fees are paid. If those costs and fees are not paid within 30 days after service of notice of the transfer order, or if a copy of a petition for writ of mandate pursuant to Section 400 is filed in the trial court, or if an appeal is taken pursuant to Section 904.2, then within 30 days after notice of finality of the order of transfer, the court on a duly noticed motion by any party may dismiss the action without prejudice to the cause on the condition that no other action on the cause may be commenced in another court prior to satisfaction of the court’s order for costs and fees. When a petition for writ of mandate or appeal does not result in a stay of proceedings, the time for payment of those costs shall be 60 days after service of the notice of the order.

      (b) At the time of transmittal of the papers and pleadings, the clerk shall mail notice to all parties who have appeared in the action or special proceeding, stating the date on which transmittal occurred. Promptly upon receipt of the papers and pleadings, the clerk of the court to which the action or proceeding is transferred shall mail notice СКАЧАТЬ