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Court of Appeal:
Remote-Testimony Option Doesn’t Bar Change of Venue
Motion Based on Convenience of Witnesses Is Not Outmoded, First District Declares
By a MetNews Staff Writer
A statute enacted in response to the COVID-19 pandemic authorizing testimony via remote technology did not form a valid basis for a San Francisco Superior Court judge denying a motion for a change of venue to San Diego County where the action was over a death occurring in that county and with most of the witnesses residing there, the First District Court of Appeal has held.
San Francisco Superior Court Judge Richard B. Ulmer Jr., in ordering that the action remain where it was, cited “the sea change in litigation over the past 18 months” as to remote testimony, declaring that “it matters little, if at all, where a witness resides at the time of trial as travel is unnecessary.” An opinion by Justice Mark B. Simons of Div. Five was filed on Thursday granting a writ of mandate directing that the motion be granted.
Simons acknowledged that Code of Civil Procedure §367.75, authorizes a court in civil cases, with exceptions, to “conduct conferences, hearings, and proceedings, in whole or in part, through the use of remote technology.” The statute went into effect Jan. 1 and sunsets on July 1, 2023.
Not Historical Relic
“Although section 367.75 appropriately recognizes that remote proceedings have been critical to the administration of justice during the pandemic and likely will have a central place in the state’s system of justice going forward,” Simons wrote, “we reject the Superior Court’s conclusion that the availability of remote testimony means section 397 motions based on the convenience of witnesses are a relic of the past.”
He remarked:
“The only reasonable inference from the evidence is that trying the case in San Francisco County, roughly 500 miles from the residences and workplaces of most of the third party witnesses, would present a substantial inconvenience to those witnesses without being more convenient to virtually any witness.”
The change-of-venue motion was brought by Mark Rycz, a Uber driver who arrived in the early morning hours of May 12, 2018, to pick up Stella Grace Yeh, a sophomore at University of California at San Diego who was in an intoxicated state. She did not enter his vehicle, instead wandering on foot onto a freeway where two cars hit her about a half hour later, causing her death.
CCP §397
Rycz’s motion was pursuant to Code of Civil Procedure §397(c) which authorizes shifting a case to another locality where “the convenience of witnesses and the ends of justice would be promoted by the change.”
Defendants Uber and Louvensky Geffrard, a Uber driver who transported Yeh earlier and allegedly ordered her out of his vehicle, joined in the motion. They did not participate in Rycz’s effort to gain writ relief.
Simons observed in a footnote:
“We…note a factual mystery at the center of the case: The question of how Yeh was transported to the location of her death from the location where Geffrard dropped her off and Petitioner interacted with her, which Petitioner alleges (and Plaintiffs do not dispute) was four or five miles away. Although no witness to that event has been identified, it is probable that any witnesses identified will be located in San Diego County.”
Palma Notice
The Court of Appeal last Nov. 19 announced it was considering issuance of a peremptory writ in the first instance, and on Feb. 8, it ordered the San Francisco Superior Court, as respondent, to show cause why relief should not be granted. Neither the Superior Court nor the decedent’s mother, plaintiff/real party Josefina McGarry, made an appearance.
However, plaintiff/real party McKenna McGarry Limentani, Yeh’s sister, through the San Francisco firm of de la Pena and Holiday LLP, did file a brief and participated at oral argument, via video conference.
Rycz was represented by John V. O’Meara and Casey B. Nathan of the Woodland Hills firm of Bremer Whyte Brown & O’Meara and by Marc J. Poster and Joseph V. Bui of the mid-Wilshire appellate firm of Greines, Martin, Stein & Richland LLP.
The case is Rycz v. Superior Court, 2022 S.O.S. 3332.
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