Determining venue for a proceeding concerning the internal affairs of a trust is ordinarily fairly straightforward: the county in which the principal place of administration of the trust is located. The result arises from a standard application of the mixed venue rule, by which the special venue provision for trust proceedings articulated in Probate Code section 17005 overrides the general venue rule in Code of Civil Procedure section 395, subdivision (a). In many breach of trust litigation cases, this is where the analysis ends. For others, though, the analysis must continue. More particularly, when multiple causes of action are plead, two or more of which are governed by concurrently-applicable and contradictory venue statutes, a determination regarding venue must be considered with the mixed action rule. Although the mixed action rule is ordinarily dispositive, it is not without exception. While no California cases have analyzed the special venue statute for trust proceedings in the context of the mixed action rule, a strong case can be made that the mixed action rule should be subordinate to Probate Code section 17005.
II. VENUE IN CIVIL ACTIONS GENERALLY
Perhaps the first strategic decision in litigating a case is choosing the court in which to file the action. In making this decision, although jurisdiction is statewide, a plaintiff’s choice of county for the trial of the action is fairly limited due to the venue rules, which geographically narrow the location of the trial of the action. In general, a defendant’s right to have an action tried in the county of his or her residence “is an ancient and valuable right, safeguarded by statute and supported by a long line of decisions.” This ancient and valuable right is codified in Code of Civil Procedure section 395. Here, the “general venue rule” provides that, “except as otherwise provided by law,” the superior court in the county where the defendant resides at the commencement of the action is the proper court for the trial of the action.
III. THE MIXED VENUE RULE
When two inconsistent venue provisions appear to be concurrently applicable in the same case—most commonly involving the general venue rule and a “special” venue provision—the special venue provision overrides the general venue rule. This result from the statutory construction of the introductory clause to the general venue rule: “Except as otherwise provided by law . . . .” In this way, the general venue rule is subordinating—applied only when no other venue provision applies.
The first case to construe the “[e]xcept as otherwise provided by law” provision was Delgado v. Superior Court. In this case, the plaintiff initiated legal proceedings against Yolo County, a Sacramento automobile dealership, and an automobile manufacturer for damages resulting from a collision with a Yolo County sheriff’s officer that left the plaintiff with serious injuries and which caused the death of plaintiff’s wife. The lawsuit was initially filed in Sacramento County, where the automobile dealership had its principal place of business (e.g., where the business resides).
Prior to filing an answer, Yolo County filed a motion to transfer the proceedings to Yolo County under the special venue provision set forth in Code of Civil Procedure section 394. In pertinent part, section 394 provides that any action against a county for an injury occurring within the county caused by the alleged negligence of the county or its agents or employees must be tried in such county. Importantly, had Yolo County been the sole defendant was is clear that venue was proper only in Yolo County. Similarly, had the automobile dealership been the sole defendant it was clear that venue was proper only in Sacramento County (the county of “residence” for the automobile dealership). The issue, then, discussed by the Court of Appeal was whether the general venue rule permitting venue in Sacramento County was subordinate to the special venue provision in section 394 requiring transfer to Yolo County—making it “one of those troublesome ‘mixed venue’ cases, in which two inconsistent venue provisions appear to be concurrently applicable to the same case. (citation omitted.)”
In reaching its decision upholding the trial court’s order transferring the proceedings to Yolo County, the Court Appeal found great significance in the 1970 amendment to Code of Civil Procedure section 395. Prior to the 1970 amendment, the introductory phrase of section 395 read, “In all other cases, except as in this section otherwise provided, . . . the county in which defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action.” With this introductory language, the controlling authority at the time held that the general venue rule trumped, or was, at least, on par with, the special venue provision of section 394. The 1970 amendment to section 395, though, replaced the introductory language of section 395 with, “Except as otherwise provided by law . . . the county in which the defendants or some of them reside at the commencement of the action is the proper county for the trial of the action.” With this change, the Delgado Court held that the new amendment to the general venue rule “is a true subordinating declaration” and that the general venue rule is to be applied only when there is no other applicable venue provision.
IV. MIXED ACTIONS
While Delgado established a rule for resolving conflicts between contradictory venue provisions applicable to the same cause of action—that is, mixed venue cases—Delgado and its progeny did not address the scenario where a plaintiff alleges two or more causes of action that are each governed by a different venue statute—that is, mixed actions. The law regarding venue in mixed actions is well-settled: “When several causes of action are alleged in a complaint, a motion for change of venue must be granted on all causes if defendant is entitled to a change on any one.” Stated differently, “Where the defendant is entitled to a change of venue as to one cause of action, the entire action is transferred.” While this result may seem harsh for a plaintiff who, for the purposes of judicial economy, brings multiple causes of action, perhaps against multiple defendants, the California Supreme court has stated—as early as 1889—“It is the plaintiff’s own doing if the complaint be so drawn. He cannot deprive the defendant of his right to a change of venue by the addition of something to the complaint. If this were not the rule, it would be very easy for a plaintiff to defeat the defendant’s right in the matter. All that plaintiff would have to do would be to add another cause of action to his complaint.”
V. A SPECIAL VENUE RULE MAY TRUMP THE MIXED ACTION RULE
Lest the mixed action rule be too easy to apply, it is not without exception. In Brown v. Superior Court, the California Supreme Court took up the issue of whether, under certain circumstances, a special venue statute overrides the mixed action rule.
In Brown, the plaintiffs were employed on a highway construction project in Alameda County. As alleged, the defendants discriminated against and ultimately discharged two the plaintiffs because they were black and another plaintiff, the foreman, was discharged because he refused to go along with the defendants’ discriminatory practices. In response, the plaintiffs filed a complaint in the Alameda County Superior Court seeking damages for intentional infliction of emotion distress, wrongful discharge, and violation of the plaintiffs’ federal civil rights. All causes of action were based on the same factual allegations.
Approximately one year after first filing their complaint but before it had been served, the plaintiffs amended their complaint to add a cause of action under California’s Fair Employment and Housing Action (“FEHA”) and to delete the federal civil rights claim. The addition of the FEHA claim was initiated by a letter that the plaintiffs received from the California Department of Fair Employment and Housing, which informed the plaintiffs of their right to sue under FEHA. The FEHA claim was based on the same factual allegations regarding liability and damages as the emotional distress and wrongful discharge claims.
Prior to answering, the defendants moved to transfer the venue of the action to Sacramento. The defendants’ request for a change of venue was based on the fact that three individual defendants resided there, the corporate defendants’ principal places of business were located there, and none of the defendants resided in Alameda County. Without stating the legal basis for its decision, the Alameda County Superior Court granted the motion and ordered the case transferred to Sacramento County. The plaintiffs then sought a writ of mandate to compel the Alameda County Superior Court to vacate its order.
In considering the matter, the California Supreme Court first turned to analyzing the interplay between the general venue rule, the special venue statute under FEHA, and the mixed venue rule. Here, the Court noted that it was undisputed that had the plaintiffs only alleged FEHA violations the FEHA special venue statute would govern, making venue proper in Alameda County. As for the emotion distress and wrongful discharge claims, those would normally be governed by the general venue rule. Neither party disputed the fact that the FEHA special venue statute constitutes an exception to the general venue rule, consistent with the mixed venue rule. Instead, the question was whether the FEHA special venue statute controls both the FEHA and non-FEHA claims.
To resolve this question, the Court resorted to the standard rules of statutory construction: “The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] Moreover, ‘every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.’ [Citation.]” To this end, a construction resulting in statutory language surplusage “‘is to be avoided.’” Turning to the language of the FEHA venue statute, it provides in pertinent part that “the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization or employment agency named in the verified complaint . . . . Such an action may be brought in any county in the state in which the unlawful practice is alleged to have been committed . . . .” (Italics added.) The Court determined that the phrase “a civil action under this part” is reasonably susceptible to two constructions: (1) only FEHA claims may be pursued in the county where the discriminatory practice allegedly occurred, and (2) any civil action that contains an FEHA claim may be pursued in the county where the discriminatory practice allegedly occurred.
Because both constructions are reasonable, the Court turned to the purpose of FEHA in order to ascertain the Legislature’s intent. The express purpose of the FEHA is “to provide effective remedies which will eliminate such discriminatory practices.” The Court then examined the practical implications and realities associated with litigating FEHA claims. First, the Court pointed out, venue considerations have a substantial impact on an attorney’s decision to undertake representation, and an attorney is more likely to represent a client if venue is available in a location that facilitates prosecution of the action and minimizes travel and other costs, including the costs of securing the necessary witnesses for trial. Second, employment discrimination cases, by their very nature, give rise to multiple causes of action based on the same set of facts. Given this, “[a] responsible attorney . . . must plead a variety of statutory, tort and contract causes of action in order to fully protect the interests of his or her client.” Third, the Court found that if the FEHA venue statute is construed to apply only to cases involving FEHA causes of action, the plaintiff would be faced with a Hobson’s choice: “If [plaintiffs] wished to avail themselves of the FEHA venue rules, they would be forced to abandon their non-FEHA claims or to try those claims in a separate action in a different county than that in which the FEHA claims were tried. Such a result would fly in the face of judicial economy. On the other hand, if FEHA claimants wished to have the entire action tried in one county, they would be forced to accede to the defendant’s chosen place of venue. This scenario would render the FEHA’s special venue rules mere surplusage. Surely, the Legislature never intended either result.”
In the end, the court held that the FEHA venue statute controls over the general venue statute, consistent with the mixed venue rule. But the Court did not stop there. The Court went on to state that, because of the important public policy and practical considerations behind the FEHA venue statute, the FEHA venue statute controlled even in mixed actions when FEHA claims are joined with non-FEHA claims arising from the same factual allegations. As the Court put it, “A contrary conclusion would render the special venue provisions of the FEHA mere surplusage and frustrate the intent of the Legislature. Although the mixed action rule recognizes a preference for trial in the county of a defendant’s residence, that preference is outweighed by the strong countervailing policy of the FEHA which favors a plaintiff’s choice of venue.”
VI. VENUE IN TRUST PROCEEDINGS
In trust proceedings, the Probate Code provides its own special venue provision. Here, the proper venue for the commencement of a trust proceedings depends, first, on the type of trust involved. For a living trust, the proper county for the commencement of a trust proceeding is the county where the principal place of administration of the trust is located. For a testamentary trust, the proper county for the commencement of a trust proceeding is either the county where the decedent’s estate is administered or the county where the principal place of administration of the trust is located. The principal place of administration of the trust is determined by referring to Probate Code section 17200:
(a) The principal place of administration of the trust is the usual place where the day-to-day activity of the trust is carried on by the trustee or its representative who is primarily responsible for the administration of the trust.
(b) If the principal place of administration of the trust cannot be determined under subdivision (a), it shall be determined as follows:
(1) If the trust has a single trustee, the principal place of administration of the trust is the trustee’s residence or usual place of business.
(2) If the trust has more than one trustee, the principal place of administration of the trust is the residence or usual place of business of any of the cotrustees as agreed upon by them or, if not, the residence or usual place of business of any of the cotrustees.
In practice, the principal place of administration is ordinarily the residence or usual place of business of the trustee or the usual place of business of the attorney for the trustee. Taken together, the proper county for the commencement of a trust proceeding will ordinarily be the county wherein either the trustee resides or the attorney for the trustee maintains his or her office.
VII. VENUE IN BREACH OF TRUST LITIGATION
In pure trust proceedings—proceeding concerning only redress from breach of trust claims—ascertaining the proper venue involves a relatively straightforward analysis. In light of Delgado and the mixed venue rule, it is clear that the general venue rule set forth in Code of Civil Procedure section 395, subdivision (a), is subordinate to the special venue provisions found in Probate Code section 17005. This result is confirmed by Probate Code section 1000, which provides that the rules applicable to civil actions apply to, and constitute the rules of practice in, proceedings under the Probate Code only if the Probate Code itself does not provide an applicable rule. Accordingly, in order to determine venue in breach of trust litigation, even if joined with other trust claims, a petitioner simply needs to identify the principal place of administration of the trust. Oftentimes, if the trust is properly administered, the identification of the principal place of administration is set forth in the notification provided by the trustee pursuant to Probate Code, section 16061.7.
The issue of venue potentially becomes much more complicated, however, when a petition includes additional causes of action or requests for relief. In more complex breach of trust litigation, it is not uncommon for the petition to include—in addition to a request for accounting, removal, and redress from breach of trust (all trust claims)—such additional causes of action as financial elder abuse, transfer of trust property (i.e., an 850 petition), quiet title, rescission, fraud, conversion, or tortious interference with an expectant inheritance. The addition of these non-trust claims implicate multiple venue provisions. For example, the request for accounting, removal, and redress from breach of trust will be governed by Probate Code section 17005. If the 850 petition is for the recovery of real property, it and the quiet title claim will be governed by Code of Civil Procedure, section 392, subdivision (a). Since the trustee-respondent is no doubt being sued in both his or her fiduciary and individual capacities, Code of Civil Procedure section 395. applies to the remaining claims against the respondent in his or her fiduciary capacity, and Code of Civil Procedure section 395 applies to the remaining claims against the respondent in his or her individual capacity.
With the addition of these non-trust claims, the petition now has multiple causes of action, two or more of which are governed by concurrently-applicable and contradictory venue statutes. Accordingly, the determination of venue must now be made with consideration to the mixed action rule. As such, if a defendant is entitled to a change of venue on any cause of action, the entire action must be transferred. In an effort to avoid having the entire action transferred to another county, it is worth considering—and arguing—that the holding in Brown should be extended to breach of trust litigation.
VIII. DOES THE SPECIAL VENUE STATUTE FOR TRUST PROCEEDINGS GOVERN OTHER CAUSES OF ACTION STEMMING FROM THE SAME FACTS?
Remember, Brown stands for the proposition that a special venue statute may govern all causes of action and overrule the mixed action rule if applying the mixed action rule has the effect of undermining the legislative intent behind the special venue statute or results in the special venue statute being reduced mere surplusage. Neither the California Supreme court nor the Courts of Appeal have issued any decisions regarding whether the special trust proceeding venue statute also governs non-trust claims stemming from the same set of facts. Notwithstanding, several notable similarities exist between the basis for the Brown decision and breach of trust litigation that support extending Brown to breach of trust litigation.
In arguing that Probate Code section 17005 should be applied to non-trust claims that arise from the same facts as the trust claims, the Legislature’s intent must be ascertained so as to effectuate the purpose of the law, and the statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. Here, a construction rendering statutory language surplusage is to be avoided. To determine the Legislatures intent, we must look first to the words of the statute.
A. Probate Code Section 17005 is Subject to Two Reasonable Constructions
Probate Code section 17005, subdivision (a), provides in relevant part, “The proper county for commencement of a proceeding pursuant to this division is . . . the county where the principal place of administration of the trust is located.” As already discussed, the principal place of administration is determined pursuant to the guidelines set forth in Probate Code section 17002. Here, “this division” refers to Division 9 of the Probate Code, or sections 15000 through 19403. Most proceedings commenced pursuant to Division 9 are brought pursuant to Probate Code section 17200. In pertinent part, Section 17200 empowers a trustee or beneficiary of a trust to petition the court concerning the internal affairs of the trust. The statute goes on to provide a non-exclusive list of purposes that are considered to concern the internal affairs of the trust. As relevant to breach of trust litigation, the internal affairs of the trust include proceedings to compel a trustee to account to the beneficiary, removing a trustee, and “[c]ompelling redress of a breach of trust by any available remedy.” Additionally, Probate Code section 16420 (which is also part of Division 9 of the Probate Code) expressly deals with actions against a trustee for breach of trust. This section includes no less than nine available remedies, including removal, the imposition of a constructive trust, and the payment of money. The statute goes on to provide, “The provision of remedies for breach of trust in subdivision (a) does not prevent resort to any other appropriate remedy provided by statute or common law.”
The phrase “by any available remedy” in Probate Code section 17200, subdivision (b), along with the additional non-exclusive language of Probate Code section 16420, leads to the conclusion that “a proceeding pursuant to this division”—as used in the special venue statute applicable to trust proceedings—is reasonably susceptible to two constructions: (1) only the expressly stated remedies in Probate Code section 16420, subdivision (a), and purposes in Probate Code section 17200, subdivision (b), pay be pursued in the county where the principal place of administration of the trust is located, and (2) any action that contains a request for relief from breach of trust, regardless of the remedies sought, may be pursued in the county where the principal place of administration of the trust is located.
B. The Purpose Behind the Special Venue Statute
Because both constructions are reasonable, the analysis must turn to the purpose of the trust proceeding special venue statute in order to ascertain the Legislature’s intent. Unlike FEHA, trust proceedings are not aimed at protecting fundamental or civil rights. As such, Division 9 of the Probate Code does not contain an express recitation of the Legislature’s purpose in enacting the laws applicable to trusts.
More generally, though, the purpose of the Probate Code sections regarding jurisdiction and venue is to “facilitate the exercise of the court’s power” to the fullest extent allowable within constitutional limitations. Further, the probate court has the power and duty to supervise the administration of the trust. Importantly, the probate court with jurisdiction over the trust estate has the “inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust.” It is recognized that this inherent equitable power encompasses the authority to take remedial action to prevent or rectify abuses of a trustee’s powers.
Given the function and purpose of the broad equitable powers and authority granted to the probate court with jurisdiction over the trust estate—that is, the probate court in the county where the principal place of administration is located—an overly technical reading of Probate Code section 17005 would frustrate the intent of the statute, curtain and fragment the inherent power and duty of the probate court, and lead to absurd results.
C. Breach of Trust Claims and Non-Trust Claims Generally Arise from the Same Facts
An important factor for the Brown Court in reaching its ruling was that both the FEHA claims and non-FEHA claims arose out of the same facts. Again, the Court noted that employment discrimination claims, by their very nature, give rise to multiple causes of action based on the same set of facts, and that, in order to protect the interest of his or her client, a responsible attorney must plead a variety of statutory, tort, and contract causes of action. Indeed, a footnote to the Brown decision expressly states that a plaintiff may not defeat a defendant’s right to trial in the defendant’s county of residence by adding a FEHA claim to the complaint. Accordingly, in order for the non-FEHA claims to be governed by the FEHA venue statute the non-FEHA claims “must rest on similar factual allegations as the FEHA count.”
Similar considerations apply to breach of trust litigation. A petition for redress from breach of trust, by its very nature, gives rise to multiple causes of action based on the same set facts. As such, a responsible attorney must plead several causes of action in order to protect the interest of his or her client. For example, there may be uncertainty regarding when the respondent-trustee assumed the office of trustee. Thus, other causes of action not predicated on a fiduciary relationship must be plead in order to establish liability and damages. Similarly, at the outset, the petitioner-beneficiary is often at a disadvantage when it comes to specific information regarding the status of the trust estate. More particularly, a trust estate that once consisted of real property may have since been liquidated and the cash proceeds dissipated. As such, a petitioner often pleads causes of action based on the recovery of or an interest in real property, as well as personal property. So long as all claims arise from the same facts, as in Brown, the special venue statute for trust proceedings should apply to causes of action joined to the trust proceeding but normally raised in civil actions.
D. An Application of the Mixed Action Rule Results in Surplusage
Furthermore, if the trust venue statute were to be applied to cases involving only causes of action accruing under Division 9 of the Probate Code, aggrieved beneficiaries would be faced with a Hobson’s choice: If beneficiaries wish to avail themselves of the trust venue rules, they would be forced to abandon their civil claims or to try those claims in a separate action in potentially a different county than that in which the trust claims are tried. Such a result would undermine the public policy of promoting judicial economy and potentially deprive the beneficiaries of desirable remedies, such as the enhanced remedies under the financial elder abuse statutes. On the other hand, if beneficiaries wish to have the entire action tried in one county, they would be forced to accede to the trustee-defendant’s chosen place of venue. This scenario would render the special venue statute mere surplusage.
What is more, the extremely narrow venue afforded petitioners by Probate Code section 17005 facilitates the probate court’s power and duty to supervise the administration of trusts by permitting venue in breach of trust litigation only in the county in which the trust has its principal place of administration. To this end, by allowing petitioners in breach of trust litigation to seek statutory or common law remedies not otherwise expressly provided in the Probate Code, the Legislature clearly intended the trust proceeding special venue statute to apply to related civil claims pled under alternative theories but based on the same set of facts. To hold otherwise dilutes the efficacy of the Probate Code’s special venue provisions, does not give effect to Probate Code section 17200, subdivision (b)—“by any available remedy”—and Probate Code section 16420, subdivision (B)—“any other appropriate remedy”—and reduces these phrases to surplusage.
At the end of the day, each party wants to try the case in the county that is most convenient to him or her. While many trust proceedings do not trigger a complicated analysis of concurrently-applicable and contradictory venue provisions, some do. In a portion of these, an applicable of the relevant venue state will not make a practical difference regarding venue since there may be only one defendant and the principal place of administration is the county in which the defendant resides. But there are many instances in which the combination of the causes of the location of the plaintiffs and necessary witnesses, the number and location of the defendants, the location of the principal place of administration of the trust, and the joiner of non-trust claims will result in different venues for different causes of action. In these cases, the plaintiff will surely try to maintain venue in the county that is most convenient to him or her, which will likely compel the defendant or defendants to file a motion to change venue. At this point, the mixed action rule presumably directs the court to transfer the entire proceeding if a defendant is entitled to a change of venue on any cause of action. But the analysis should not stop there. Counsel for the plaintiff should analyze the motion to change venue using the factors and considerations articulated in Brown and, if appropriate, make the case that the mixed action rule should be subordinate to Probate Code section 17005.