I respectfully dissent. I agree with the majority that under the provisions of section 395 of the Code of Civil Procedure, the plaintiff *426mother was entitled to file her action to establish the foreign judgment in any court in the state. There is no question of jurisdiction involved. Although the superior court is organized into separate courts in 58 counties, it is properly referred to as a one state court for the purpose of jurisdiction. “The superior courts of the state of California, while, located and functioning in the several counties of the state, are not local or county courts, but constitute a system of state courts, being vested with and exercising the judicial power of the state under the express terms of section 1 of article VI of the state constitution. . . .” (Sacramento etc. D. Dist. v. Superior Court (1925) 196 Cal. 414, 432 [238 P. 687]. Cf. §§ 1, 4, 10 and 11 of art. VI, as revised Nov. 8, 1966; and see 1 Witkin, Cal. Procedure (2d ed. 1970) Courts, §§132 and 133, pp. 403-404.) The Legislature by statute and the courts by rule and decision can determine what is the proper venue of an action. This is particularly recognized in section 395 which commences by stating, “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title . . . .” I, therefore, conclude that there is no denial of due process or equal protection ,of laws if the plaintiff is provided a forum which' is consistent with the law and decisions governing venue.
The parties have failed to furnish the court with any of the pertinent papers in the proceedings below, other than the. court’s order which petitioner seeks to have reviewed. In Dow Chemical Co. v. Superior Court (1969) 2 Cal.App.3d 1 [82 Cal.Rptr. 288], the petitioner sought a writ of mandate to compel the court to set aside its order of denial and to grant petitioner’s motion for a commission to take the deposition of a nonresident witness. The court adverted to the requirements of California Rules of Court, and noted as follows: “Rule 56, California Rules of Court, provides that ‘A petition to a reviewing court for a writ of mandate, certiorari, or prohibition, or for any other writ within its original jurisdiction, must be verified and shall set forth the matters required by law to support the petition. . . .’ The petition must, of course, set forth the grounds for the relief sought (3 Witkin, Cal. Procedure (1954) § 56, p. 2544), but that is not all. Thus it has been held that when a writ of mandate is sought to compel a superior court to make an order different from that which it has entered, the record upon which the court acted in coming to its conclusion should be presented with the petition (Charles L. Donohoe Co. v. Superior Court, 79 Cal.App. 41 . . .). (See also Favorite v. Superior Court, 52 Cal.App. 316, 318-319 . . .; Rose v. Superior Court, 44 Cal.App.2d 599, 601 . . .; In re Rapken, 111 Cal.App. 107 .. . .)” (2 Cal.App.3d at p. 8, fn. 6.)
*427Turning to the record the petitioner advises that on July 13, 1973 she “filed a complaint to establish foreign judgment of divorce and for modification of foreign judgment as established to award custody of child to plaintiff and for order for temporary custody and restraining order” against the nonresident father. (Italics added.) She admits that the complaint alleges “plaintiff is now, and since 1970, has been a resident of the County of Santa Clara, City of San Jose, State of California.” Since the petition alleges that defendant’s default was entered, it may well be that the first part of the relief sought by the plaintiff—the establishment of the judgment—was granted. Thereafter the nonresident sought and obtained relief from the default. It is impossible to ascertain from the record whether the relief extended to an opportunity to attack the validity of the foreign judgment, or merely an opportunity to litigate the question of the second issue raised by petitioner, to wit, the issue of custody. In view of the paucity of the record, and because of the presumption in favor of the lower court’s action, I am prepared to rule on the basis that the latter was the case.
In Charles L. Donohoe Co. v. Superior Court (1926) 79 Cal.App. 41 [248 P. 1007], the court observed, “The rule seems to be settled that where a petition for a writ of mandate and the answer of the court are submitted without evidence the answer must be taken as true.” (79 Cal.App. at pp. 44-45. See also Lotus Car Ltd. v. Municipal Court (1968) 263 Cal.App.2d 264, 268 [69 Cal.Rptr. 3847] [Molinari, P. J.].) The verified answer alleges, “Petitioner did have notice of the Court’s Order granting defendant’s motion and vacating his default and of the Court’s Order that the case be transferred to the County of Santa Clara on September 28, 1973,[1] when the Court ruled following the arguments of both counsel, however. The Court stated that the reason for the transfer of the case to Santa Clara County was the residence of the Plaintiff as set forth in the Complaint in addition to the fact that the Probation Department of the County of Santa Clara had previously prepared a social service report on the best interests of the minor child and subject matter of the Complaint.” From the fore*428going it may be assumed in support of the court’s order that there was no issue remaining as to the establishment of the foreign judgment, and the case was in the posture where a mother was seeking modification of the custody proceedings against a non-state resident in a county in which she was not a resident. Sections 4600-4603 of the Civil Code govern proceedings where there is at issue the custody of a minor child. Section 4602 provides for the investigation to which the court referred when it made its order. The Legislature has expressed its stand with respect to resident parents in section 397.5 which provides: “In any enforcement or modification proceedings after a final judgment under the Family Law Act, Part 5 (commencing with Section 4000) of Division 4 of the Civil Code, when it appears that both petitioner and respondent have moved from the county rendering the decree, 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.”
It does not stretch the judicial function beyond the breaking point to engraft on the above section a rule that in order to give those who were divorced out of the state equal protection of the law, an action brought to enforce or modify a final judgment of divorce rendered by a foreign state is subject to the same rule when neither party is a resident of the county where the action was commenced. The record, such as it is, indicates that the ends of justice and the convenience of the parties, and particularly the best interests of the child would be promoted by a change of venue to the county in which the mother has the child’s physical custody.
No reason is suggested for the mother’s choice of forum. If for the convenience of her counsel whose card bears a San Francisco address, that should not suffice. (See Great Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105, 112 [90 Cal.Rptr. 461] [cert. den. (1971) 401 U.S. 1013, 28 L.Ed.2d 550, 9 S.Ct. 1254].) Speculation on other reasons for the mother’s adamant stand is profitless. She has failed to show why the order is not sensible and in the best interest of all concerned. This court should not use its process to upset the order made. There is no abuse of process or violation of a fundamental right.
It is suggested that because the court cannot order a transfer under section 397 on its own motion, the case be returned to San Mateo County, and that there the father can take appropriate proceedings to secure a transfer under sections 397 and 398 of the Code of Civil Procedure. His answer here evidences that he would do so. The court’s ruling shows the facts and the reasons for the change. The petitioner has failed to give this court an adequate record. I would, therefore, in the exercise of discretion *429deny the writ in order to avoid mere circuity of action which will but delay the final adjudication of the custody of the child. I would discharge the alternative writ and deny a peremptory writ.
Code of Civil Procedure section 400 provides, “When an order is made by the superior court granting ... a motion to change the place of trial, the party aggrieved by such order may, within 10 days after service of a written notice of the order, . . . petition the court of appeal. . . .” Here the wife although aware of the court’s ruling on September 28, 1973, waited until she was advised November 1, 1973 that the record had been sent to Santa Clara County. It is not clear whether or not she had written notice of the order signed October 24 and filed October 25, 1973, prior to November 1. It has been assumed that the order, which refers to a hearing on October 11, 1973, was not served on the petitioner earlier, and that-the 10 days, exclusive of the weekend of November 10 and 11, ran through November 12, 1973, when the petition was filed.