Aquino v. Super. Ct.

Filed: 12/23/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ANTHONY CAESAR AQUINO et
al.,
Petitioner,
v. A162836
THE SUPERIOR COURT OF
ALAMEDA COUNTY, (Alameda County
Super. Ct. No. RG18915604)
Respondent;
APRIL SCOTT,
Real Party in Interest.

Anthony Caesar Aquino, Pacific Ocean Auto Parts Co., and Reed Jobs
seek extraordinary writ relief from an order denying their motion to change
venue under Code of Civil Procedure section 397.1 They contend the trial
court should have granted their motion because, while venue was originally
proper based on the location of an accident allegedly caused by one of the
defendants (§ 395), it became improper once the defendant who caused that
accident was dismissed from the case. Petitioners further contend the court
erred in ruling that they waived their right to challenge venue.
As a threshold matter, the parties debate whether the petition was
timely filed in this court. We conclude that the superior court clerk’s service
of a document containing both the order denying the motion to change venue

1 All statutory references hereafter are to the Code of Civil Procedure.

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and a declaration of service satisfied the requirements for written notice
under section 1013a, thereby commencing the period for filing the petition
under section 400. Petitioners’ failure to file their petition by the end of that
period rendered their petition untimely, whether or not real party in interest
should have also given notice of the order under section 1019.5. Accordingly,
the petition will be dismissed.
I. FACTS AND PROCEDURAL HISTORY
A. Scott’s Complaint
On July 30, 2018, April Scott (Scott) filed a complaint in Alameda
County Superior Court against Reed Jobs (Jobs), Jennie Forni (Forni),
Anthony Caesar Aquino (Aquino), Pacific Ocean Auto Parts Co. (Pacific
Ocean Auto), and others, alleging that Scott was involved in three separate
automobile accidents in three different counties in 2017 and could not
determine which accident caused her injuries.
According to the complaint, the first accident occurred in April 2017 in
San Mateo County, when Jobs was unable to stop his car in time and struck
the rear end of a vehicle that collided with Scott’s vehicle. The second
accident occurred on August 2017 in Alameda County, when Scott was
rear-ended by Forni after traffic came to a stop on I-880. The third accident
occurred in September 2017 in Contra Costa County, when Scott was
rear-ended on southbound I-680 by a car that had been struck by Aquino,
who was employed by, and working in the scope of his employment with,
Pacific Ocean Auto.
In filing her complaint in Alameda County, Scott based venue on the
location of the Forni accident. (See § 395 [venue proper in personal injury
action in the county where the injury occurred or where any defendant

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resides].) None of the defendants resided in Alameda County at the time the
complaint was filed.
Jobs answered the complaint and filed a cross-complaint against other
defendants including Aquino and Pacific Ocean Auto, seeking indemnity,
apportionment, and declaratory relief. Aquino and Pacific Ocean Auto
answered the complaint and filed a cross-complaint against Jobs and other
defendants. Jobs, Aquino and Pacific Ocean Auto alleged an affirmative
defense of improper venue in their answers.
B. Settlement and Dismissal as to Forni
In August 2020, Scott settled her case as to the Forni defendants and
sought a judicial determination that the settlement was made in good faith
(§§ 877, 877.6). Aquino and Pacific Ocean Auto challenged the settlement;
Jobs did not. The court issued a good faith settlement determination in
October 2020, and an order dismissing the Forni defendants was filed in
December 2020.
C. Petitioners’ Motion to Transfer Venue
After the dismissal of Forni, the remaining defendants—petitioners
Jobs, Aquino, and Pacific Ocean Auto—filed a motion to transfer venue to
Santa Clara County, where Aquino and Pacific Ocean Auto reside, pursuant
to section 397. Petitioners asserted that they had not waived their right to
challenge venue and, with the dismissal of the Forni defendants, venue could
no longer be based on the location of the Forni collision.
Scott opposed the motion, arguing that it was untimely and that the
dismissal of Forni did not provide a basis for a venue change.
The court issued a tentative ruling denying the motion. After a
hearing, the court signed (electronically) a written order denying the motion
on May 12, 2021. The court concluded that petitioners had waived their right

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to challenge venue because they filed cross-complaints and Aquino and
Pacific Ocean Auto had opposed Forni’s good faith settlement application.
The court also concluded that the motion to challenge venue could not be
based on Forni’s dismissal.
As discussed in greater detail ante, the superior court clerk served the
parties with a copy of the court’s order and a declaration of service, which
indicated that the order was mailed and the declaration was executed on May
12, 2021. According to evidence provided by petitioners, the clerk’s envelope
bore a metered postage date of May 13, 2021.
Petitioners did not file their writ petition in this court until June 11,
2021. We obtained briefing from the parties, who each proposed conflicting
interpretations of the relevant statutes. We decided writ review should be
granted to resolve questions of first impression of importance to the bench
and bar, which bear not only on petitioners’ claims but also future cases,
including the timeliness of petitions to this court for extraordinary writ
review. (Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 129–130; see also
Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266,
1273–1274.) “[G]iven that the petition raised a question of first impression
appropriate for resolution in a published opinion, we deliberately chose to
issue an OSC [order to show cause] instead of an alternative writ, since the
latter procedure would have permitted reversal of the challenged order with
the undesirable result of potentially rendering the issue moot.” (Paul
Blanco’s Good Car Company Auto Group v. Superior Court (2020) 56
Cal.App.5th 86, 99, internal citation omitted.) Pursuant to our order to show
cause, real party in interest Scott filed a return and petitioners filed a reply.

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 II. DISCUSSION
The petition gives rise to three issues: (1) was the petition timely filed
in this court; (2) did petitioners waive their right to challenge venue in the
trial court; and (3) where venue is proper at the commencement of the action
based on the location of the injury (§ 395), does the matter become subject to
transfer on the ground of improper venue under section 397 if the defendants
allegedly responsible for that injury have been dismissed pursuant to a good
faith settlement determination. We need address only the first issue to
resolve the petition.
A. Applicable Law
Whether a writ petition was timely filed in this court constitutes a
threshold jurisdictional issue; if the petition was not timely filed, it must be
dismissed. (People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675,
683–684.)
The time to file a petition for writ review of an order denying a motion
to “change the place of trial” (§ 397) is set forth in section 400. Section 400
provides in relevant part: “When an order is made by the superior court
granting or denying a motion to change the place of trial, the party aggrieved
by the order may, within 20 days after service of a written notice of the order,
petition the court of appeal for the district in which the court granting or
denying the motion is situated for a writ of mandate requiring trial of the
case in the proper court. The superior court may, for good cause, and prior to
the expiration of the initial 20-day period, extend the time for one additional
period not to exceed 10 days.” (Italics added.) The salient question here is
whether the clerk’s service of the order and declaration of service constituted
“service of a written notice of the order” under section 400 and, if so, whether
the petition was filed within 20 days thereafter.

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 B. The Clerk’s Written Notice and the Petitioners’ Filing
The clerk served the parties with a copy of the court’s May 12 order and
an attached Declaration of Service by Mail that was signed on May 12, 2021.
The clerk’s declaration reads as follows:

As certified by the court clerk, the “foregoing document” (the order)
“was mailed” as of the date the clerk executed the declaration on May 12,
2021. Based on this May 12 date, and counting 20 days pursuant to section
400 plus five days for mailing pursuant to section 1013, subdivision (a), the
period for filing the petition would have elapsed on June 6, 2021; since June 6
was a Sunday, the last day to file the petition was Monday, June 7, 2021
(§ 12a). (Although the clerk’s envelope bore a metered postage date of May
13, 2021, using May 13 as the triggering date would still result in a deadline
of June 7.) The petition was not filed until June 11, 2021. It was untimely.

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 C. Petitioners’ Arguments
Petitioners contend the clerk’s written notice did not commence the
20-day period after all, arguing that (1) the clerk’s declaration of service did
not comply with section 1013a, and (2) the notice should have been given not
by the clerk, but by Scott pursuant to section 1019.5. Their arguments are
meritless.
1. Section 1013a
“Service by mail must be made in strict compliance with the mandates
of sections 1013 and 1013a.” (Simplon Ballpark, LLC v. Scull (2015) 235
Cal.App.4th 660, 664.) As relevant here, section 1013a, subdivision (4)
states: “In case of service by the clerk of a court of record, a certificate by
that clerk setting forth the exact title of the document served and filed in the
cause, showing the name of the clerk and the name of the court of which he or
she is the clerk, and that he or she is not a party to the cause, and showing
the date and place of deposit in the mail, the name and address of the person
served as shown on the envelope, and also showing that the envelope was
sealed and deposited in the mail with the postage thereon fully prepaid. This
form of proof is sufficient for service of process in which the clerk or deputy
clerk signing the certificate places the document for collection and mailing on
the date shown thereon, so as to cause it to be mailed in an envelope so sealed
and so addressed on that date following standard court practices. Service
made pursuant to this paragraph, upon motion of a party served and a
finding of good cause by the court, shall be deemed to have occurred on the
date of postage cancellation or postage meter imprint as shown on the
envelope if that date is more than one day after the date of deposit for
mailing contained in the certificate.” (Italics added.)

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 Petitioners contend that the clerk’s declaration is defective because it
does not specifically state whether or when the order was “deposited” in the
mail. They misperceive the statute.
As relevant here, section 1013a requires the clerk’s certificate to
“show[] the date . . . of deposit in the mail” and to “show[] that the envelope
was sealed and deposited in the mail with the postage thereon fully prepaid.”
In this case, the clerk’s certificate stated that the order “was mailed, first
class, postage prepaid, in a sealed envelope” and that the declaration was
executed on May 12. The certificate therefore “show[s]” the envelope was
sealed and postage was prepaid. (§ 1013a, subd. (4).) It also “show[s]” the
date of deposit in the mail for purposes of the statute: since the declaration
says the order “was mailed” as of May 12, and the May 12 order could not
have been mailed before May 12, the declaration “show[s]” it was mailed on
May 12.
Petitioners quibble that the declaration uses the word “mailed” rather
than the phrase “deposit[ed] in the mail.” They argue that “[o]ne may say a
document ‘was mailed’ by simply throwing an envelope in an office outbox
expecting someone to later deposit it in the mail.” (Original italics.)
In making this argument, petitioners overlook the point of section
1013a, subdivision (4), which explicitly pertains where “the clerk or deputy
clerk signing the certificate places the document for collection and mailing on
the date shown thereon, so as to cause it to be mailed in an envelope so sealed
and so addressed on that date following standard court practices.” (§ 1013a,
subd. (4), italics added.) Subdivision (4) clearly targets the situation where
the clerk does not directly deposit the order in the mailbox but initiates the
process. It would make no sense to say that this provision, which does not
require the clerk to deposit the document in the mail, is unmet because the

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clerk did not say the document was deposited in the mail. The clerk’s
declaration complied with the requirements of section 1013a. 2
Petitioners also direct us to the meter mark on the clerk’s envelope,
which bears a postage date of May 13 and thereby suggests that the May 12
mailing date stated in the declaration may be incorrect (or the meter mark is
incorrect). But on this point petitioners confuse two issues: (1) compliance
with the rules for the content of a notice, which was satisfied as discussed
above; and (2) what happens if the content of the notice appears erroneous in
light of the extrinsic evidence of a postage meter imprint. As to the latter
issue, our Legislature has anticipated the situation and instructed us how to
handle it: “Service made pursuant to this paragraph [§ 1013a, subd. (4)],
upon motion of a party served and a finding of good cause by the court, shall
be deemed to have occurred on the date of postage cancellation or postage
meter imprint as shown on the envelope if that date is more than one day
after the date of deposit for mailing contained in the certificate.” (Italics
added.)

2 In a one-sentence footnote in their Reply, petitioners claim the
declaration does not meet the requirement to set forth the “exact title of the
document served and the name of the clerk.” Petitioners did not make this
assertion in their petition, and their failure to elaborate on it in their briefs
constitutes a waiver of the argument. In any event, the requirement is met.
The clerk’s declaration states that “a true and correct copy of the foregoing
document” was being served (italics added), and the foregoing document is
the court’s May 12 order bearing the title, “Order [¶] Motion for Change of
Venue (Out of County) Denied.” The declaration further confirms that it
pertains to the order after the hearing of May 12. Petitioners provide no
authority for the proposition that the section 1013a requirement to “set[]
forth the exact title of the document served” is not met by attaching the exact
document being served. In addition, the declaration sets forth the name of
the clerk by stating above the signature line, “Chad Finke Executive
Officer/Clerk of the Superior Court” and by including a digital signature of
the deputy clerk.

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 Here, the “date of . . . postage meter imprint” is May 13, 2021, which is
not more than one day after the May 12, 2021 date shown by the clerk’s
certificate. Pursuant to the statute, service is deemed to have occurred on
May 12, 2021. Accordingly, the petition was due to be filed by June 7, 2021,
and as a matter of law and strict adherence to the statutory requirements,
the petition was untimely.
Petitioners refer us to M’Guinness v. Johnson (2015) 243 Cal.App.4th
602, 612, 613 (M’Guinness), arguing that the order had an “ambiguous proof
of service” such that the time period for filing the petition never commenced.
But M’Guinness does not stand for that proposition. At issue in M’Guinness
was whether the clerk’s service of a file-endorsed order, and the clerk’s later
mailing of a separate proof of service, could collectively establish the
requirement of rule 8.104 (a)(1)(A) to serve a “file-stamped copy of the
judgment, showing the date [the judgment] was served,” and commence the
period for filing a notice of appeal. (Id. at p. 611.) Contrary to petitioners’
suggestion, the court in M’Guinness did not state that the proof of service was
ambiguous. Instead, it explained that our Supreme Court had found the
applicable rule of court ambiguous, but interpreted it to require service of a
single, self-sufficient document satisfying all the conditions of the rule.
(Id. at p. 612.) If M’Guinness has any application here, it confirms that the
single document served by the court clerk in this case—the declaration of
service with the order attached—met the statutory requirements.
Finally, we note that petitioners’ attorney attended the May 12 hearing
and had personal knowledge that the judge denied their motion orally on
May 12. Petitioners admit that they received a copy of the minute order with
the clerk’s declaration of mailing the following week, meaning as early as
May 17. Petitioners knew or should have known that the clerk’s declaration

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showed that service of the order was made on May 12 and section 400
required them to file the petition by June 7. Petitioners never claimed that
the clerk’s service was ineffective or late, never complained they had too little
time to prepare the petition, and never sought an extension from the superior
court (§ 1013a). Instead, petitioners chose to file their petition four days after
the declaration of mailing indicated it was due. We do not see how the court
clerk did anything to cause petitioners’ tardiness.3
2. Section 1019.5
As mentioned, section 400 requires that a writ petition be filed within
20 days (plus five days for mailing) after “service of a written notice of the
order.” (Italics added.) The statute does not specify whether it must be the
court clerk or the prevailing party who serves the notice. Petitioners argue
that section 1019.5 required Scott to serve it, and Scott’s failure to do so
means the section 400 time limit never commenced. Petitioners are incorrect.
Nothing in section 1019.5, subdivision (a) precludes or nullifies the
service of notice by a court clerk; it merely places upon counsel an obligation
to provide notice in certain circumstances. The provision reads: “When a
motion is granted or denied, unless the court otherwise orders, notice of the

3 Petitioners more broadly attack the Alameda County Superior Court
clerks generally, expressing “concern[]” that the “clerks are not actually
mailing materials, including orders, on the date they execute their ‘service’ by
mail declarations, since materials from that court’s Hayward branch
oftentimes take five or more days to arrive in Walnut Creek, and the
declarations do not contain required language attesting to mailing via United
States Postal Service or familiarity with the process to ensure that the
document is submitted to the USPS for mailing on a particular date.”
Petitioners do not provide specifics or account for other variables such as mail
delays during the COVID-19 pandemic. Based on the record, we see no
indication that the clerks perform their tasks with anything less than
dedication and integrity. That said, it may be prudent for all lower courts to
scrutinize the language they use in proofs of service from time to time.

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court's decision or order shall be given by the prevailing party to all other
parties or their attorneys, in the manner provided in this chapter, unless
notice is waived by all parties in open court and is entered in the minutes.”
(Italics added.) At the hearing in this case, the parties did not waive notice
and the court did not direct how notice should be given.
But whether Scott should have served notice of the order pursuant to
section 1019.5 is not the point here. The point is whether what was served—
the clerk’s notice—constituted “service of a written notice of the order” for
purposes of commencing the 20-day period under section 400 to file a writ
petition. Long-standing California precedent in an analogous context tells us
that the clerk’s notice sufficed.
As respondents note, section 437c uses language similar to that in
section 400 to specify the time by which a writ petition may be filed from the
denial of a motion for summary judgment. Section 437c, subdivision (m),
formerly subdivision (l), reads: “Upon entry of an order pursuant to this
section, except the entry of summary judgment, a party may, within 20 days
after service upon him or her of a written notice of entry of the order, petition
an appropriate reviewing court for a peremptory writ.” (Italics added.) For
decades, courts have held that the clerk’s service of the order denying a
summary judgment motion commences this 20-day period to seek writ
review. (Sturm, Ruger & Co. v. Superior Court (1985) 164 Cal.App.3d 579,
582 (Sturm) [clerk’s mailing of a copy of a minute order to the parties was
sufficient to commence the period established by former § 437c, subd. (l), for
filing a writ petition in the appellate court]; Schmidt v. Superior Court (1989)
207 Cal.App.3d 56, 60 (Schmidt) [where petitioner became aware of a minute
order from the court clerk mailing a copy to the parties, the clerk’s mailing

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constituted written notice of entry of the order to commence the statutory
period, notwithstanding a later notice of the order sent by the defendants].)
A provision allowing for writ review under the Public Records Act (Gov.
Code, § 6250, et seq.) has been given a similar interpretation. In MinCal
Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259,
Government Code section 6259, subdivision (c) required a writ petition to be
filed within 20 days after service of the notice of entry of an order. Following
Sturm and Schmidt, the court held that the period was triggered by the
clerk’s mailing of a copy of the minute order. (Id. at p. 265.)
The conclusion that a clerk’s notice is sufficient to trigger the time to
file a writ petition flows naturally from the purpose of the statutory
provisions. As Sturm observed from the legislative history of section 437c,
subdivision (l), the intent of the subdivision was to prevent the party who lost
in the trial court from causing delays through the use of dilatory petitions to
the appellate court, and the subdivision should be applied “in a manner
which compels litigants timely to seek extraordinary relief upon their being
made aware of the trial court's ruling.” (Sturm, supra, 164 Cal.App.3d at
p. 582. Italics added.)
The same interpretation should be given to section 400. Section 400
was amended in 1989 to provide for a 20-day time period (reducing it from 30
days and authorizing the superior court to extend it up to 30 days for good
cause), in the same legislation that amended the time period in section 437c.
(Stats. 1989, ch. 1416, §§ 12, 16.) The language in each statute is virtually
identical: section 400 requires filing “within 20 days after service of a written
notice of the order,” while section 437c, former subdivision (l) (and current
subdivision (m)) require filing “within 20 days after service upon him or her

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of a written notice of entry of the order.”4 Although a motion to change the
place of trial is not the same thing as a motion for summary judgment, the
important point here is that both statutory provisions address the time
within which an extraordinary writ petition may be filed to challenge a trial
court order. The judicial construction of the deadline in section 437c strongly
informs our construction of the deadline in section 400. (See Estate of
Griswold (2001) 25 Cal.4th 904, 915–916.)5
The clerk’s service of a copy of the May 12 order triggered the 20-day
period to file a writ petition under section 400. The clerk’s declaration of
mailing, attached to the May 12 order, showed that the mailing occurred on
May 12 for purposes of section 1013a. Because petitioners did not file their
petition until June 11, their petition is untimely and must be dismissed.

4 While section 437c, subdivision (m) requires notice of entry of the order,
section 400 requires only notice of the order. It therefore makes no difference
whether the copy of the order served by the clerk in this case was
file-stamped to designate its entry. We also observe that the order was made
by the court on the day of the hearing pursuant to its ruling at the hearing,
rather than after the matter had been taken under submission; rule 3.1109 of
the California Rules of Court does not apply.

5 Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183 is
not to the contrary. That case held that the time to file a motion for
reconsideration, which begins to run with service of written notice of the
entry of an order (§ 1008, subd. (a)), was triggered by a party’s service of
written notice of entry pursuant to section 1019.5, rather than the clerk’s
earlier service of the order. (Id. at p. 203.) Here we deal not with a motion
for reconsideration in the trial court, but a petition for extraordinary writ
review in the appellate court. Forrest did not consider the issue before us and
is therefore inapposite.

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 III. DISPOSITION
The petition for a writ of mandate or prohibition is dismissed. Real
party in interest shall recover her costs from petitioners. (Cal. Rules of
Court, rule 8.493(a).)

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 NEEDHAM, J.

We concur.

JACKSON, P.J.

BURNS, J.

Aquino v. Superior Court / A162836

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A162836 / Aquino v. Superior Court

Trial Court: Superior Court of Alameda County

Trial Judge: Honorable Delbert C. Gee

Counsel: Stone & Associates, Colette F. Stone and Ronald F. Berestka Jr.;
Law Office of Shawn C. Moore, Douglas Wood; Hassard Bonnington, Peter
Mallon, for Petitioner.

No appearance for Respondent.

Alan Charles Dell’Ario; The Tillis Law Firm, Shawn Tillis; Winer, Burritt, &
Scott, John D. Winer, for Real Party in Interest.

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