Dept. of Fish & Wildlife v. Super. Ct.
CourtCalifornia Court of Appeal
Date FiledSeptember 23, 2026
DocketF090948
StatusPublished
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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.