Filed 2/28/18; Certified for Publication 3/26/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WALT DISNEY PARKS AND 

RESORTS U.S., INC.,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

 Respondent.

JOHNNY GALVAN et al.,

Real Parties in Interest.

 B284261

 (Los Angeles County

 Super. Ct. No. BC595235)

ORIGINAL PROCEEDING. Petition for writ of mandate, 

Rita Miller, Judge. Petition for writ of mandate granted.

McDermott Will & Emery, A. Marisa Chun and Gregory R. 

Jones for Petitioners.

No appearance for Respondent.

Law Offices of Scott E. Schutzman and Scott E. Schutzman 

for Real Parties in Interest.
__________________________

Petitioner Walt Disney Parks and Resorts U.S., Inc. 

petitioned this court for relief from an order of the Los Angeles 

Superior Court denying Disney’s motion to transfer venue as 

untimely. Because we conclude that the court erred in 

determining the motion was time-barred, we grant the petition

for a writ of mandate and direct Respondent court to consider the 

motion on the merits.

FACTUAL AND PROCEDURAL SUMMARY

Plaintiffs and real parties in interest Johnny Galvan, 

Sandy Mumma, and Stavros Patsalos (real parties) filed their 

complaint for damages in Los Angeles County Superior Court on 

December 6, 2016. Real parties asserted breach of contract 

claims, as well as claims for negligent and intentional infliction of 

emotional distress, arising out of visits to Disneyland Park in 

Anaheim in 2015. The contracts alleged annual passes and daily 

admission tickets contain venue selection clauses establishing 

Orange County, California as the proper venue for any litigation.

Disney answered the complaint on January 12, 2017 and 

removed the action to federal court the next day, asserting 

diversity jurisdiction. The federal court remanded the matter in 

March 2017; Disney filed its motion to transfer venue on April 17, 

2017, citing as grounds Code of Civil Procedure sections 396b

subdivision (a) and 397 subdivision (a).1 Plaintiffs opposed the 

motion, arguing that it was untimely, and, in any event, that 

1 Further statutory citations are to the Code of Civil 

Procedure.

2

 
Disney’s county of residence was Los Angeles. The court heard 

and denied the motion on July 20, 2017.

The Trial Court’s Ruling

In a hearing at which no court reporter was present, the 

court considered the arguments of counsel2 and adopted its 

tentative ruling. The court denied the motion without prejudice 

to defendant filing a different motion, which the court did not 

identify.

Disney had argued: First, that its removal of the action to 

federal court served to extend its time to file the motion until 

after the remand; and second, that section 397, the alternative 

ground for the motion, is not subject to the timing requirements 

of section 396b, but instead grants the court discretion to change 

venue where the matter was not filed in the proper court. The 

court rejected Disney’s arguments, concluding that the motion 

would have been untimely even before the removal to federal 

court. The court also found that a defendant waives its right to 

ask the court to exercise its discretion under 397 if it fails to 

comply with the time requirements of 396b, and denied the 

motion. 

2 Both petitioner and real parties attempted to provide 

information concerning the oral proceedings, but failed to provide 

either a transcript or a settled statement. While California Rules 

of Court, rule 8.486(b)(3) permits declarations where a transcript 

of the proceedings is not available, that rule requires a fair 

summary of the proceedings “including the parties’ arguments 

and any statement by the court supporting its ruling.” Neither 

declaration met the requirements of the rule. Accordingly, our 

review is solely based on the pleadings and the court’s order.

3

 
Disney filed a petition for writ of mandate, and this Court, 

after real parties filed preliminary opposition, issued an Order to 

Show Cause on September 14, 2017.

DISCUSSION

A. We Review The Trial Court’s Ruling De Novo

Disney’s motion to change venue was explicitly based on 

both sections 396b and 397. The court ruled, as a matter of law, 

that the motion was untimely; the facts were not disputed and 

the court did not resolve any issues of fact in making its decision. 

Accordingly, we review that decision de novo. See 

Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80 

Cal.App.4th 948, 959 [“Questions of law relate to the selection of 

a rule” and are reviewed de novo]; Dow AgroSciences LLC v. 

Superior Court (2017) 16 Cal.App.5th 1067, 1076 [in case 

involving power to transfer where action filed in improper court, 

de novo review is appropriate where the statute is applied to 

undisputed facts]. 

B. The Strict Time Requirements of Section 396a Did Not 

Bar Disney’s Motion under Section 397

1. The Statutory Scheme

Section 396b, which requires the court to grant a timely 

motion, provides:

“(a) Except as otherwise provided in Section 396a, if an 

action or proceeding is commenced in a court having jurisdiction 

of the subject matter thereof, other than the court designated as 

the proper court for the trial thereof, under this title, the action 

may, notwithstanding, be tried in the court where commenced, 

4
unless the defendant, at the time he or she answers, demurs, or 

moves to strike, or, at his or her option, without answering, 

demurring, or moving to strike and within the time otherwise 

allowed to respond to the complaint, files with the clerk, a notice 

of motion for an order transferring the action or proceeding to the 

proper court, together with proof of service, upon the adverse 

party, of a copy of those papers. Upon the hearing of the motion 

the court shall, if it appears that the action or proceeding was not 

commenced in the proper court, order the action or proceeding 

transferred to the proper court.”

Section 397, which gives discretion to the court, provides, in 

relevant part, 

“The court may, on motion, change the place of trial in the 

following cases:

(a) When the court designated in the complaint is not the 

proper court.”

2. Failure To Comply With 396b Does Not Automatically 

Waive A Party’s Rights

Disney argues that, reading the two provisions together, 

and harmonizing their provisions, the mandatory provision 

embodied in section 396b is time-limited, while the discretionary 

provision in section 397 is not. Opposing the petition, real 

parties assert that Disney did not argue it was entitled to relief 

under section 397 at the trial court, and that the denial of the 

motion without prejudice specifically permitted Disney to file a 

motion under that section. Real parties appear to make these 

5
arguments without a basis in the record.3 Real parties do not 

provide any legal authority supporting the respondent court’s 

ruling.

The authority on which respondent court relied was 

Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295. In that 

case, defendants filed a motion for change of venue, based on the 

convenience of witnesses, one month before trial. The trial court 

denied the motions. On appeal, the court found no abuse of 

discretion, concluding that “[t]he determination of motions for 

change of venue upon grounds specified in subdivision 3 of 

section 397 of the Code of Civil Procedure rests largely in the 

sound discretion of the trial judge”. (Id. at p. 293.) With respect 

to the timing issue, the court concluded that the motions, made 

so close in time to the trial date, had not been made within a 

reasonable time. (Id. at p. 295.)

Citing Willingham, the trial court here reasoned that the 

rule allowing motions to be filed within a reasonable time applied 

only to motions based on the convenience of witnesses. While 

sections 396b subdivision (a) and 397 subdivision (a) both refer to 

“wrong court” filings, only section 397 addresses the convenience 

of witnesses. Recognizing that section 397 expressly grants 

discretion to the court to consider “wrong court” filings, the court 

held that the timing limitations in section 396b for mandatory 

3 First, Disney’s motion for change of venue specifically 

argued, citing relevant authority, that both provisions supported 

granting its motion for change of venue. Second, the record before 

this Court demonstrates both that the court found the motion 

untimely under both provisions, and that the court did not 

explain under what provision it believed Disney could file an 

additional motion. 

6

 
relief in such cases did not limit the discretion section 397 gives 

to the court. Instead, the court concluded, the time requirements

limit the moving defendant; by failing to comply with the 

requirements of section 396b, Disney waived its right to move for 

a change of venue. The case law concerning waiver does not 

support the conclusion of the trial court, and real parties cite no 

authority in support of that conclusion.4 The court erred in 

finding waiver as a matter of law.

In Lyons v. Brunswick-Balke-Collender Co., (1942) 20 

Cal.2d 579, 582, the Supreme Court considered the issue of 

waiver in motions to change venue. The defendant in that case 

moved to change venue to his county of residence, pursuant to 

sections 396b and 397; he filed the motion after filing the 

demurrer, but prior to the hearing. Plaintiffs moved to strike the 

filing, arguing defendant had waived his right to seek the change 

of venue by not complying with the time limitations of section 

396b; the trial court denied the motion to strike and granted the 

motion to change venue. (Id. at p. 581.)

The Supreme Court affirmed the order, beginning its 

discussion by commenting: “Section 396b of the Code of Civil 

Procedure permitting the defendant to have certain actions tried 

in the county where he resides is remedial in nature and should 

4 Real parties have waived the argument that the respondent 

court properly interpreted the statute by failing to provide 

argument or authority on this point. (Utility Consumers’ Action 

Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688, 697

[“If a party fails to support a claim of error with argument, or 

support an argument with the necessary citations to the record, 

we may deem the argument waived. In re Marriage of Falcone & 

Fyke (2008) 164 Cal.App.4th 814, 830, 79 Cal.Rptr.3d 588; Nwosu 

v. Uba (2004) 122 Cal.App.4th 1229, 1246, 19 Cal.Rptr.3d 416].)”

7

 
be liberally construed to the end that a defendant may not be 

unjustly deprived of that right. (Lundy v. Lettunich (1920) 50 

Cal.App. 451, 195, P. 451; Code Civ. Proc. § 4.) Therefore in 

considering this appeal we must be guided by that principle.” (Id.

at p. 582.)

The Court examined the cases applying waiver to failure to 

comply with section 396b, and concluded that those cases did not 

require as a matter of law that waiver be found in every case. 

“Waiver is ordinarily a question of fact. (25 Cal. Jur. 932.) While 

it may be true that the failure to institute proceedings for change 

of venue on the ground of residence at the time of filing a 

demurrer or answer, standing alone, requires as a matter of law 

that relief be denied when an attempt to obtain it is made by 

later proceedings, there is nothing in section 396b or the cases 

heretofore cited, which compels a holding that such waiver occurs 

as a matter of law where, as in this case, there is a sufficient 

showing that there was no intent to waive the right or to invoke 

the jurisdiction of the court in which the action is commenced, 

and the defendant has acted in good faith and with diligence. To 

blind one’s self to the realities by a slavish adherence to 

technicalities is not consonant with justice or the liberal 

tendencies with respect to rules of procedure and practice. To 

give the construction to section 396b contended for by plaintiffs 

would be unreasonable and out of line with the rules pertaining 

to waiver. Furthermore, it would require a strict and literal, 

rather than a liberal interpretation of that section.

The right of the defendant to have certain actions tried in 

the county of his residence ‘is an ancient and valuable right, 

which has always been safeguarded by statute and is supported 

by a long line of judicial decisions. “The right of a plaintiff to 

8
have an action tried in another county than that in which the 

defendant has his residence is exceptional, and, if the plaintiff 

would claim such right, he must bring himself within the terms of 

the exception’’ [citations omitted.]’” (Lyons, supra, 20 Cal.2d at 

p. 584; see also Van Gaalen v. Superior Court (1978) 80 

Cal.App.3d 371, 378, fn. omitted [“[T]he time limit for filing a 

notice of motion for change of venue prescribed by section 396b is 

not jurisdictional in the sense that a trial court is without power 

to entertain an untimely [filed] motion.”].)

The Lyons court found no waiver under the circumstances 

of that case. Here too, the record reflects no evidence of an intent 

to waive. Disney sought promptly to comply with federal rules on 

removal (28 U.S.C. § 1441), and made its venue motion shortly 

after the federal court remanded the case. This, like the actions 

of the defendant in Lyons, does not demonstrate consent for the

case to be tried in state court in Los Angeles County; to the 

contrary, every action taken by Disney demonstrated its 

assertion that the case was not properly venued there. This 

record does not support a finding of waiver as a matter of law.

C. Principles of Statutory Construction Support Disney’s 

Motion

Respondent court, in determining that Disney’s motion was 

barred, construed sections 396b and 397 to arrive at its 

conclusion. That result was not, however, compelled by 

application of the rules of statutory construction. 

When confronted with two statutes, one of which contains a 

term, and one of which does not, we do not import the term used 

in the first to limit the second. Instead, it is our obligation to 

interpret different terms used by the Legislature in the same 

9
statutory scheme to have different meanings. (Roy v. Superior 

Court (2011) 198 Cal.App.4th 1337, 1352, 131 Cal.Rptr.3d 536 

[“[w]hen the Legislature uses different words as part of the same 

statutory scheme, those words are presumed to have different 

meanings’”]; Romano v. Mercury Ins. Co. (2005) 128 Cal.App.4th 

1333, 1343, 27 Cal.Rptr.3d 784 [same], see Brown v. Kelly 

Broadcasting Co. (1989) 48 Cal.3d 711, 725, 257 Cal.Rptr. 708, 

771 P.2d 406 [‘“‘when the Legislature has carefully employed a 

term in one place and has excluded it in another, it should not be 

implied where excluded.’”’] (Regents of University of California v. 

Superior Court (2013) 220 Cal.App.4th 549, 558.)

Where, as here, the Legislature has chosen to include a 

phrase in one provision of the statutory scheme, but to omit it in 

the another provision, we presume that the Legislature did not 

intend the language omitted from the first to be read into the 

second. (Cornette v. Department of Transportation (2001) 26 

Cal.4th 63, 73 [“When one part of a statute contains a term or 

provision, the omission of that term or provision from another 

part of the statute indicates the Legislature intended to convey a 

different meaning.”]; see also Craven v. Crout (1985) 163 

Cal.App.3d 779, 783 [“Where a statute referring to one subject 

contains a critical word or phrase, omission of that word or 

phrase from a similar statute on the same subject generally 

shows a different legislative intent.”]; Campbell v. Zolin (1995) 33 

Cal.App.4th 489, 497 [“Ordinarily, where the Legislature uses a 

different word or phrase in one part of a statute than it does in 

other sections or in a similar statute concerning a related subject, 

it must be presumed that the Legislature intended a different 

meaning.”])

10
In arriving at the conclusion that a defendant moving for a 

change of venue under section 397 is barred if the motion was not 

made in compliance with the timing requirements of section 

396b, respondent court violated these principles of statutory 

construction. The issue is not bar, despite the court’s conclusion 

that “defendant cannot bring the motion if it is not brought 

timely.” Instead, the court must determine if the record 

demonstrates waiver. This the trial court failed to do; had it done 

so, it could only have concluded, on the undisputed facts in this 

record, that Disney did not waive its right to seek a change of 

venue.

DISPOSITION

The petition is granted and the superior court is ordered to 

vacate its order denying the motion for change of venue and to 

hold a new hearing at which it will consider Disney’s motion for 

change of venue on its merits. Petitioner shall recover its costs.

ZELON, Acting P. J.

We concur:

SEGAL, J. BENSINGER, J.∗

∗ Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution. 

11

 
Filed 3/26/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WALT DISNEY PARKS AND 

RESORTS U.S., INC.,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

 Respondent.

JOHNNY GALVAN et al.,

Real Parties in Interest.

 B284261

 (Los Angeles County

 Super. Ct. No. BC595235)

 ORDER CERTIFYING

 OPINION FOR 

 PUBLICATION

THE COURT:

The opinion in this case filed February 28, 2018 was not 

certified for publication. It appearing the opinion meets the 

standards for publication specified in California Rules of Court, 

rule 8.1105(c), the request by petitioner pursuant to California 

Rules of Court, rule 8.1120(a) for publication is granted. 
IT IS HEREBY CERTIFIED that the opinion meets the 

standards for publication specified in California Rules of Court, 

rule 8.1105(c); and 

ORDERED that the words “Not to be Published in the 

Official Reports” appearing on page 1 of said opinion be deleted 

and the opinion herein be published in the Official Reports. 

____________________________________________________________

ZELON, Acting P. J., SEGAL, J., BENSINGER, J. (Assigned)

2