Full Opinion

Filed 9/23/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT DEPARTMENT OF FISH AND WILDLIFE, F090948 Petitioner, (Super. Ct. No. 23CV-03845) v. OPINION THE SUPERIOR COURT OF MERCED COUNTY, Respondent; CITY OF MERCED et al., Real Parties in Interest. ORIGINAL PROCEEDINGS; petition for writ of mandate. Stephanie L. Jamieson, Judge. Rob Bonta, Attorney General, Iveta Ovsepyan, Assistant Attorney General, Quintin Lucas, Sophia Retchless and Derek J. Onysko, Deputy Attorneys General, for Petitioner. No appearance for Respondent. Marderosian & Cohen, Michael G. Marderosian, Heather S. Cohen; Singleton Schreiber and Benjamin I. Siminou for Real Parties in Interest. -ooOoo- Several local government entities in Merced sued the Department of Fish and Wildlife (CDFW), alleging it was ultimately responsible for property damage caused by flooding after a rainstorm. CDFW moved to transfer the action out of the Merced County Superior Court to a neutral county under Code of Civil Procedure sections 394 and 397, subdivision (b).1 The trial court denied the motion pursuant to Government Code section 955.3. CDFW challenges this ruling through the present petition for writ of mandate. We agree with the trial court that Government Code section 955.3 applies notwithstanding Code of Civil Procedure section 394, and deny the petition. STATEMENT OF THE CASE2 On October 16, 2023, the City of Merced, McSwain Union Elementary School District, and several other plaintiffs (collectively, plaintiffs)3 sued the CDFW after a January 10, 2023 rainstorm allegedly damaged plaintiffs’ properties. Plaintiffs alleged that CDFW prevented or severely limited the ability to properly clean and maintain 1 Subsequent statutory references are to the Code of Civil Procedure unless otherwise noted. 2 We have taken judicial notice of the filings in a prior writ proceeding in this matter (i.e., case No. F089872) on our own motion. We do so solely to provide additional procedural history, and note that the matters so noticed are not “of substantial consequence to the determination of the action.” (Evid. Code, § 459, subd. (c).) 3 The City of Merced et al. were plaintiffs below and are real parties of interest in the present writ proceedings. 2. several waterways, which diminished their capacity and caused substantial flooding. 4 A second amended complaint asserted causes of action labeled inverse condemnation— strict liability, inverse condemnation—reasonableness standard, dangerous condition, and nuisance. In late 2023 through 2024, several other parties—including homeowners, business owners, and insurers—filed complaints against the County of Merced, the City of Merced, and CDFW based on claims concerning the same rainstorm.5 On January 31, 2024, the County of Merced filed a complaint against CDFW for inverse condemnation, dangerous condition of property, and private and public nuisance.6 The court consolidated the cases on August 19, 2024. In October 2024, CDFW filed demurrers to the complaints in three of the consolidated actions. On December 3, 2024, CDFW (and CDWR) filed a demurrer to a fourth complaint. In March and April 2025, the trial court overruled CDFW’s demurrers. 4 Plaintiffs have requested that we take judicial notice of Exhibits A through F. Exhibits A through C are pleadings filed in the case. Exhibit D is a local rule of the Merced County Superior Court. Exhibit E is the register of actions in the case. Exhibit F is a declaration with legislative history materials attached concerning Senate Bill No. 1427 (Reg. Sess. 1979–1980). CDFW raises procedural irregularities with plaintiffs’ request not being in motion format (Cal. Rules of Court, rule 8.252(a)(1)) and objects that the requested items were not before the trial court. The request for judicial notice filed on February 18, 2026, is granted as to Exhibits A through E, as these items were either filed with the trial court prior to its ruling or, in the case of the local rule and register of actions, did not need to be filed. The request for judicial notice is denied as to Exhibit F because it does not appear the exhibit was presented to the trial court prior to its ruling and yet is being offered to support a substantive challenge to the ruling. (See Baer v. Associated Life Ins. Co. (1988) 202 Cal.App.3d 117, 122, fn. 3.) Plaintiffs’ request for judicial notice filed on July 24, 2026, is denied. 5 The Department of Water Resources (CDWR) was included as a defendant in one of the actions. 6 The parties stipulated to staying this case indefinitely. 3. The present action was severed from the consolidated cases on August 8, 2025, leaving CDFW as the sole nonresident party. CDFW filed a motion for summary judgment, which was scheduled to be heard in January 2026, after the present writ petition was filed. On November 17, 2025, CDFW filed a motion to change venue pursuant to sections 394 and 397, subdivision (b). Plaintiffs opposed the motion. The trial court ruled that Merced County was the proper venue under Government Code section 955.3, and that the motion to change venue was untimely. Accordingly, it denied the motion to change venue. On December 29, 2025, CDFW filed the present petition for writ of mandate challenging the trial court’s ruling on the motion to change venue. DISCUSSION I. Government Code Section 955.3 Controls and Establishes Merced County Superior Court as the Proper Venue for the Present Action Law There are three statutes at the center of the arguments presented by the parties: Code of Civil Procedure sections 394 and 397, subdivision (b), and Government Code section 955.3. Code of Civil Procedure Section 394 Section 394 provides, in pertinent part, “[A]ny action or proceeding brought by a … city[] or local agency within a certain county … against a resident of another county, … shall be, on motion of either party, transferred for trial to a county… other than that in which the plaintiff is situated, if the plaintiff is a city, or a local agency, and other than that in which the defendant resides, or is doing business, or is situated.” This statute is to be construed liberally to guard against local prejudices. (McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1033.) 4. Code of Civil Procedure Section 397 Section 397 provides, in pertinent part, that “[t]he court may, on motion, change the place of trial …: [¶] … [¶] (b) When there is reason to believe that an impartial trial cannot be had therein.” Government Code Section 955.3 Government Code section 955.3 provides, “Notwithstanding any provision of law, when a city, county, or city and county, or local agency is a plaintiff in an action or proceeding against the State of California, the action may be tried in any city or county, or city and county, where the city, county, or city and county, or local agency is situated. “The Attorney General may, on behalf of the State of California, before answering, move to change the place of trial to Sacramento County in accordance with the provisions of Section 397 of the Code of Civil Procedure. “For the purposes of this section, ‘local agency’ means any governmental district, board, or agency, or any other local governmental body or corporation, or elected local public official, but shall not include the State of California or any of its agencies, departments, commissions, or boards, or elected public officials in the executive branch of the state government.” Analysis The effect of these statutes in the present case is relatively straightforward. This is clearly a case where “a city, county, or city and county, or local agency is a plaintiff in an action or proceeding against the State of California.” (Gov. Code, § 955.3.) Therefore, “the action may be tried in any city or county, or city and county, where the city, county, or city and county, or local agency is situated.” (Gov. Code, § 955.3.) The local government plaintiffs are situated in Merced County, and it is therefore the proper venue for trial under Government Code section 955.3. While the Attorney General could have 5. moved for a change of venue due to anticipated local bias before answering the complaint (Gov. Code, § 955.3, citing Code Civ. Proc., § 397), he did not do so here. Code of Civil Procedure section 394 does not come into play at all because even if its provisions otherwise would have encompassed the situation present here,7 Government Code section 955.3 applies “[n]otwithstanding any provision of law.” This phrase is not difficult to understand—it “means what it says.” (Watkins v. County of Alameda (2009) 177 Cal.App.4th 320, 344.)8 “When a statute employs this phrase, ‘it is generally acknowledged that its “broad and unambiguous scope” operates to “override[] the application, if any, of [contradictory law].” ’ ” (Criminal Justice Legal Foundation v. Department of Corrections and Rehabilitation (2025) 113 Cal.App.5th 26, 35, review granted Oct. 22, 2025, S292887.) Indeed, it is unclear what other effect could be given to the phrase. CDFW emphasizes that Government Code section 955.3 does not mention Code of Civil Procedure section 394. However, that is immaterial because it instead says, “[n]otwithstanding any provision of law.” (Gov. Code, § 955.3, italics added.) Because the meaning of this phrase is clear and broad, there was no need to list the individual statutes to which it applied. CDFW observes that Government Code section 955.3 does reference Code of Civil Procedure section 397, but not section 394. Perhaps that argument would have some force if it was identifying Code of Civil Procedure section 397 as a specifically superseded statute, which would make us question why it did not also list Code of Civil Procedure section 394 in the same manner. But Government Code section 955.3 does not 7 Plaintiffs assert section 394 only applies where a city, county, or local agency is the only plaintiff. We do not address this contention. 8 Here, Government Code section 955.3 uses the phrase “[n]otwithstanding any provision of law,” without the word “other” before “provision.” We doubt this makes any difference; but if it did, it would be to have a broader effect than the more common clause. 6. reference Code of Civil Procedure section 397 in order to identify it as a superseded statute. Indeed, it references section 397 in a completely separate paragraph from the “[n]otwithstanding” phrase. Rather, the reference to section 397 is to permit the Attorney General to file a motion under its provisions before answering the complaint. In other words, it references section 397 to make clear it is not superseded to a specific extent. In fact, the inclusion of this express reference to section 397 supports our reading of the statute. If Government Code section 955.3 would not have otherwise superseded statutes like Code of Civil Procedure section 397, there would be no need to expressly allow the Attorney General to avail him or herself of its provisions. Instead, this reference is consistent with the notion that statutes like Code of Civil Procedure section 397 would not have applied to the circumstances covered by Government Code section 955.3 if the latter statute had not expressly allowed it. CDFW nonetheless contends we should not conclude that Government Code section 955.3 repealed Code of Civil Procedure section 394 by implication. It is true that “there is a general presumption against repeals by implication,” which “may be overcome where the later provision gives undebatable evidence of an intent to supersede the earlier.” (Arvin Union School Dist. v. Ross (1985) 176 Cal.App.3d 189, 199.) But it seems peculiar to view Government Code section 955.3 as “repealing” Code of Civil Procedure section 394 when there is no doubt the latter continues to apply in a host of situations when the nonresident defendant is anyone other than the State of California. Even if we could shoehorn the present situation into the repeal-by-implication framework by calling it a partial repeal, it would still be far more apt to apply a different framework: the well-worn rule that specific statutes control over 7. general ones.9 “ ‘It is well settled … that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.’ ” (San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577.) CDFW argues that general “notwithstanding” clauses only subordinate existing laws to the extent the two laws are irreconcilable. (See Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors (1968) 263 Cal.App.2d 41, 55.) We agree. But the two laws are irreconcilable as to the proper venue for the present action. To the contrary, CDFW claims the two statutes can operate simultaneously because one is a venue statute and one is a transfer statute. Specifically, that Government Code section 955.3 governs where a suit against the State can be properly filed, while Code of Civil Procedure section 394 governs where trial should be held to safeguard against local prejudice. This argument, too, goes against the plain language of Government Code section 955.3, which expressly governs where an action “may be tried,” not simply where it can be filed. (Italics added.) Transfer out of the venue where the local government plaintiff resides (i.e., Merced County) is mandatory once requested under section 394. (See Arntz Builders v. Superior Court (2004) 122 Cal.App.4th 1195, 1203.) Yet, the plain language of Government Code section 955.3 expressly says the action “may be tried” in the venue where the local government plaintiff is situated (i.e., Merced County). Thus, the 9 It cannot be that every specific statute “partially repeals” the corresponding general statute, otherwise these two canons of statutory construction would be plainly contradictory. In our view, when the general statute continues to apply to a wide range of situations even when the specific statute is enforced, then the partial repeal canon is less appropriate than the general versus specific canon. 8. two statutes are irreconcilable with respect to the present situation. The “[n]otwithstanding” clause makes clear what we do in this situation—we apply Government Code section 955.3. Moreover, Government Code section 955.3 already provides a safeguard against local prejudice: it allows the Attorney General to file a pre-answer motion under Code of Civil Procedure section 397 on the grounds that “there is reason to believe that an impartial trial cannot be had” in the present venue. This takes the wind out of CDFW’s insistence that our reading undermines the Legislature’s antibias intent. To the contrary, adhering to the plain language of the statutes fully protects the Legislature’s antibias goals. It merely imposes a procedural restriction requiring the motion to transfer be filed before an answer. A party is not permitted to end run this procedural restriction by departing from the statutes’ plain language.10 CDFW asserts that Government Code section 955.3 does not apply because the gravamen of the suit at issue here is inverse condemnation, which does not require the filing of a government tort claim. Nothing in the statute limits its application in the manner suggested by CDFW. However, CDFW cites McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1033, which observed that the statute had been previously held inapplicable in a case where “the matter at issue was not one involving ‘… claims for money or damages for 10 CDFW criticizes the trial court’s observation that the prejudice to be remedied by section 394 does not apply to the State of California because the jurors would be residents of both Merced County and California. CDFW also argues the court was incorrect to say that subdivision (b) of section 394 might render the statute inapplicable to the State of California. We would likely agree with CDFW on both points, but do not ultimately resolve them because they are not dispositive. Because Government Code section 955.3 applies to the present situation, and not Code of Civil Procedure section 394, the court’s possible misunderstanding of section 394 is immaterial. In any event, we review the court’s ruling, not its reasoning. (Pomona Valley Hospital Medical Center v. Kaiser Foundation Health Plan, Inc. (2026) 119 Cal.App.5th 43, 71.) 9. which the filing of a claim is a statutory prerequisite or actions on claims for money or damages … specifically exempted from the filing requirement.’ ” (Ibid., italics added.) As noted above, this limitation appears nowhere in the statute’s text. In any event, the present suit does involve a tort claim for money damages for which the filing of a claim is required (i.e., dangerous condition of public property), alongside the inverse condemnation claims. In sum, it is hard to envision a statute that would more clearly govern the present situation than Government Code section 955.3. While the present situation arguably also falls within Code of Civil Procedure section 394’s more general scope, Government Code section 955.3 contains specific language that clearly provides for its application even when other, contradictory statutes could otherwise apply.11 The trial court correctly applied Government Code section 955.3. DISPOSITION The petition for writ of mandate is denied. The stay previously issued by this court is lifted. Real parties in interest are awarded their costs on appeal. GUERRA, J. WE CONCUR: HILL, P. J. LEVY, J. 11 Given this conclusion, we need not reach the remaining contentions of the parties. 10.