Testimony Via Technology Does Not Preclude Changes of Venue
There is little doubt that COVID-19 changed the courts. Motivated by health and safety concerns, California legislators enacted a statute that authorized testimony via remote technology. Now, judges have to grapple with the legal implications of the new law and new technologies. The petitioner in a recent case involving the death of a young woman argued for a change of venue from where the case was filed to where he and most of the witnesses reside. The motion was denied by a judge who ruled that testimony by technology is the equivalent of personal appearance. An appellate court disagreed.
The case involved the tragic death of Stella Grace Yeh, a student at the University of San Diego who drank too much and partied too hard. To make sure she got home safely, her friends called an Uber and a driver arrived to take her home. On the way, she “forcefully vomited” all over his dashboard and the interior of his vehicle. He exited the highway and ordered her out of the car. About half an hour later, she called another Uber and petitioner Mark Rycz arrived to pick her up.
Accounts differ about what happened next, but it is undisputed that Yeh never entered Rycz’s car. Half an hour after Rycz drove away, witnesses report seeing Yeh walking onto Interstate 805, where she was struck by two different cars and died. Rycz says he was several miles away from the accident site at the time of Yeh’s death.
Uber Technologies, petitioner Rycz, and one other Uber driver are defendants in a civil action filed by several of Yeh’s relatives who are seeking damages for her death. They allege common carrier negligence by both drivers and negligent hiring, training, and supervision against Uber. Additional claims included wrongful death and misrepresentation by Uber relating to its “assertions about rider safety.” They argue that the Uber drivers left Yeh in an “unsafe area” and they “should have recognized the risk of harm.”
Plaintiffs’ case was filed in San Francisco County, where the headquarters of Uber Technologies is located. The vast majority of the witnesses live in San Diego County where the tragic accident occurred. Rycz filed a motion for a change of venue, citing Section 397(c) of the California Code of Civil procedure. The section says that “motions for change of venue in California can be filed on the grounds that both the convenience of witnesses and the ends of justice would be promoted by the change.”
Rycz felt that the statute supported his motion for the venue change. Not only was San Diego the accident site, he and most of the other co-defendants and witnesses, including police officers and health care providers. lived nearly 500 miles from the San Francisco courthouse. Plaintiffs countered that witnesses who live out of the area “could testify remotely.”
On July 28, the Court of Appeal in Division Five of the First Appellate District agreed with Rycz as they granted writ relief that will require the Superior Court of San Francisco County to grant petitioner’s motion. The unanimous opinion by a three-judge panel was written by Associate Justice Mark B. Simons.
Simons noted that a court has “the discretion” to change venue “when the convenience of witnesses and the ends of justice would be promoted by the change.” He believed that Rycz satisfied these criteria, and he discounted plaintiffs’ arguments that Zoom testimony would be adequate. “None of the pandemic-related statutory or rule changes reflect an intent to supersede section 397, subdivision (c)” he wrote. When they ruled against the venue change, he concluded, “The Superior Court erred.”
He also noted that the new statute is temporary and is scheduled to expire on July 1, 2023, and he also emphasized that the rule has exceptions. For example, a judge can require in-person testimony if it “would materially assist in the determination of the proceeding or in the effective management or resolution of the case.”
Simons continued, “More fundamentally, there is no basis to conclude the enactment of (the statute) reflects a legislative direction that courts should assume all testimony will be taken remotely when adjudicating motions to transfer under section 397…” He also wrote that it was not correct to assume the legislature meant that remote testimony is “always an adequate substitute for in-person testimony.” The Superior Court should not have “relied on” these assumptions. Decisions about the propriety of remote testimony must always be made on a case-by-case basis.
“The Superior Court’s reasoning in the present case—a blanket determination at an early stage in the case that all trial testimony will be done remotely—entirely undermines the discretion and flexibility built into the statutory scheme,” he admonished.
Simon’s conclusion recounted all the advantages of a change of venue to San Diego: it was more convenient to most of the witnesses; it would help avoid delay and expense both to witnesses and to the courts; there are local interests that will be served; witnesses would be available for immediate recall; and it will minimize the time that law enforcement or health care personnel have to be away from work. In addition, site visits to key locations are easier to access.
“The convenience of witnesses,” he wrote, is not a “relic of the past.”