State Water Resources Control
Bd. v. Superior Court
Filed 6/29/12
State Water Resources Control Bd. v. Superior Court CA1/1
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
STATE WATER RESOURCES CONTROL BOARD,
Petitioner,
v.
THE SUPERIOR COURT OF MENDOCINO COUNTY,
Respondent;
MILLVIEW COUNTY WATER DISTRICT et al.,
Real Parties in
Interest.
A135114
(Mendocino County
Super. Ct. No. SC UK CVPT 1259715)
By the Court:
Petitioner,
the State Water Resources Control Board (State Water Board), is one of several
parties in an administrative mandamus
proceeding in respondent superior court (Code Civ. Proc.,
§ 1094.5) brought by Millview County Water District (Millview) and
individuals Thomas P. Hill and Steven L. Gomes.
The case concerns the State Water Board’s cease and desist order
preventing Millview
from diverting more water than it is lawfully allowed to divert. By this timely
petition for writ of mandate (§ 400), the State Water Board contends the
superior court erred in denying its motion to transfer venue to a neutral
county or refer the case to the Judicial Council for assignment of an
out-of-county judge (§ 394, subd. (a), hereafter
section 394(a)). We agree. Having previously stayed all proceedings in
the superior court, we will order issuance of a peremptory writ.
Millview properly filed its section
1094.5 petition for administrative mandamus in Mendocino County.
(§ 393, subd. (b).) But the
State Water Board, as a state agency residing in Sacramento (
Superior Court (1970) 3 Cal.3d 529, 537), was entitled to have venue
changed to a neutral county or to have an out-of-county judge assigned,
pursuant to section 394(a), as interpreted by us in McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023 (
held section 394(a) “in essence provides that, whenever a county sues a
resident of another county, the action must either be removed to a
neutral forum, or request made to the Chairman of the Judicial Council for
assignment to the plaintiff county of a disinterested judge. [Citation.] [¶] Our state Supreme Court has
repeatedly expressed the central purpose of Code of Civil Procedure section 394
to be ‘to guard against local prejudices’ [citation], and has directed lower
courts to construe the statute liberally to that end. [Citation.]
And here, of course, the opportunity to obviate the mere appearance of
possible local prejudice may be accomplished by the pro tempore assignment of a
neutral county judge as contemplated by the statute.†(McCarthy,
at p. 1033.)
title="">[3]
The
superior court was required to follow our decision in McCarthy. (
(1962) 57 Cal.2d 450.) We notified the
parties we might choose to act by issuing a peremptory
writ in the first instance. (
(1984) 36 Cal.3d 171, 177–180.) The State Water
Board’s right to relief is clear, and no useful purpose would be served in this
case by issuance of an alternative writ and
Therefore,
let a peremptory writ of mandate issue commanding respondent Mendocino County
Superior Court to set aside its order filed April 6, 2012 denying the motion to
change venue, and to enter an order granting the motion of the State Water
Board to change venue to a neutral county or, alternatively to request
assignment of a disinterested judge as required by section 394, subdivision
(b).
The
stay previously imposed shall remain in effect until the remittitur issues.
The parties shall bear their own costs.
This
opinion is final as to this court immediately.
name="_ftn1" title="">[1] Before Marchiano, P.J., Margulies, J., and Dondero, J.
name="_ftn2" title="">[2] All statutory references are to the Code of Civil Procedure unless
otherwise indicated.
