Supreme Court of Texas.

JLG Trucking, LLC, Petitioner,

v.

Lauren R. Garza, Respondent

 

No. 13–0978

Argued February 26, 2015

OPINION DELIVERED: April 24, 2015

 

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXASDavid M. Gunn, William Robert Peterson, Beck Redden LLP, Houston, John B. Skaggs, Lynse L. Guerra, Skaggs & Guerra, McAllen, for Petitioner.

 

Dan Pozza, Law Offices of Dan Pozza, San Antonio, Hector Leal Rodriguez, Jaime A. Gonzalez Jr., Gonzalez & Associates, McAllen, Lisa Erin Hobbs, Kuhn Hobbs PLLC, Austin, for Respondent.

 

Justice Lehrmann delivered the opinion of the Court.

*1 This case requires us to review the trial court’s exclusion of evidence on relevance grounds. The plaintiff was involved in two car accidents approximately three months apart. After the second accident, she sued the opposing driver in the first accident and alleged that this collision caused her injuries. The defendant sought to present two alternative defensive theories. First, the defendant presented expert testimony that the plaintiff’s injuries were degenerative and thus not trauma-related at all. Alternatively, the defendant contended that the second accident caused her injuries. On the plaintiff’s pretrial request, and because of the lack of expert testimony supporting the defendant’s alternative theory, the trial court excluded all evidence of the second accident on relevance grounds. The trial court rendered judgment on the jury’s verdict for the plaintiff, and the court of appeals affirmed. We hold that evidence of the second accident was relevant to the central issue of whether the defendant’s negligence caused the plaintiff’s damages. We further hold that the trial court committed harmful error in excluding the evidence, and particularly in refusing to allow cross-examination of the plaintiff’s expert on the subject. Accordingly, we reverse the court of appeals’ judgment and remand the case for a new trial.

 

I. Background

On July 16, 2008, Lauren Garza was traveling south on U.S. Highway 83 in Zapata County when an 18–wheeler driven by a JLG Trucking, LLC employee rear-ended her truck. An ambulance was called to the scene but did not transport Garza to the hospital. Instead, Garza testified that her aunt took her to a nearby emergency clinic where x-rays were taken, although the record contains no medical records from the clinic regarding that visit. Five days later Garza saw an orthopedic surgeon, Dr. Guillermo Pechero, complaining of neck and back pain. An x-ray showed some straightening of the lordotic curve, which Dr. Pechero concluded was associated with muscle spasms in the neck. Dr. Pechero prescribed physical therapy, which Garza underwent for roughly eleven weeks.

 

On October 9, 2008, shortly after ceasing physical therapy, Garza was involved in a second car accident. She was taken by ambulance from the scene of the accident to a hospital on an immobilization board with a hard collar to prevent movement in her neck. At the hospital, Garza complained of pain in her head, neck, and chest. On October 31, Garza returned to Dr. Pechero for a follow-up visit, complaining of continuous pain in her neck that radiated into her shoulders. Dr. Pechero ordered an MRI, which revealed that Garza had two herniated discs in her neck. Dr. Pechero began a conservative treatment of primarily medication in hopes of avoiding surgery, but a March 2009 nerve study revealed that a nerve at the site of the herniations had become compressed, and a second MRI in August 2011 showed two additional herniated discs in her neck. Garza underwent spinal fusion surgery in January 2012. The surgery was successful, and at the time of trial Garza was “doing well.” However, Garza lives with a scar on her neck, reduced neck mobility, the permanent presence of hardware from the surgery, and the possibility of future surgery.

 

*2 Garza sued JLG, alleging that the employee driver’s negligence proximately caused her injuries and seeking damages for past and future medical expenses, loss of earning capacity, physical pain, mental anguish, physical impairment, and disfigurement.FN1 Garza’s treating physician, Dr. Pechero, served as her expert witness to testify that the July 2008 accident caused the herniated discs. JLG designated Dr. Bruce Berberian, a neuroradiologist, as its expert witness to testify that Garza was suffering from degeneration of her discs, and not a trauma-related injury at all. JLG also intended to introduce evidence of the October accident as an alternative cause of Garza’s injuries, although JLG did not designate an expert to testify in support of that theory.

 

FN1. Garza named the employee as a defendant, but it appears that he was never served with citation. Garza also asserted claims against JLG for negligent entrustment and gross negligence, but those claims were not submitted to the jury.

 

Garza filed a pretrial motion to exclude any evidence of the second accident on the grounds that such evidence was not relevant, or that its probative value was substantially outweighed by the unfair prejudice or confusion it would cause the jury, because “there is no causal connection between the injuries [Garza] is complaining of and the subsequent collision.” After a hearing, the trial court granted Garza’s motion to exclude.

 

Dr. Pechero testified by deposition at trial that the July accident caused Garza’s injuries. He noted that Garza exhibited neck pain after that accident and that the October MMI revealed injuries consistent with a rear-end collision. One portion of the deposition played to the jury contained the following exchange between Dr. Pechero and Garza’s counsel:

 

Q. Now, up to this point in the treatment of her you took a history, correct?

 

A. Correct.

 

Q. And Lauren indicated to you that she had not had any or been involved in any other accidents other than the one from July—July 16th of 2008; is that correct?

 

A. I don’t think I asked her one way or the other on that.

 

….

 

Q. Well, you took a history, correct?

 

A. Correct.

 

Q. All right. And let’s take a look at the July 21st note real quick.

 

A. Okay. Are you referring to the October note, or the July note?

 

Q. The July note.

 

A. Oh, okay. In the July note, she did not have any other history of injury.

 

Taking the position that this testimony opened the door to questions concerning the second accident, JLG renewed its objection to the exclusion of all mention or evidence of that accident. The trial court upheld its earlier exclusion ruling, and JLG submitted an offer of proof as to the testimony that would have been elicited from Dr. Pechero and the evidence that would have been presented in support of the second accident as an alternative cause. JLG’s offer of proof included the police report regarding the second accident, photos of Garza’s vehicle after the second accident, medical records documenting Garza’s emergency treatment after that accident, and Dr. Pechero’s testimony that he had not reviewed those medical records. Garza responded with an offer of proof consisting of Dr. Pechero’s testimony that he had relied on Dr. Berberian’s testimony that the second accident did not cause Garza’s injuries to rule out that possibility. The jury found that JLG’s employee’s negligence proximately caused the July accident and awarded her $1,166,264.48 in damages. FN2

 

FN2. The jury awarded $108,135.48 for past medical expenses, $110,000.00 for future medical expenses, $583,693.00 for future loss of earning capacity, $42,048.00 for past physical pain, $252,288.00 for future physical pain, $5,000.00 for past physical impairment, $57,600.00 for future physical impairment, and $7,500.00 for future disfigurement. The jury awarded $0 for past loss of earning capacity, past and future mental anguish, and past disfigurement.

 

*3 JLG appealed the trial court’s judgment on the verdict, arguing that evidence of the second accident was relevant and that its exclusion amounted to harmful error because it prevented JLG from holding Garza to her burden of proving that JLG caused her injuries. The court of appeals affirmed, holding that the trial court did not abuse its discretion in excluding evidence of the second accident because “expert testimony would be required to establish any … causal link between the second collision and Garza’s injuries.” ––– S.W.3d ––––, –––– (Tex.App.–San Antonio 2013).

 

II. Analysis

[1]We review a trial court’s exclusion of evidence for an abuse of discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.2001). Erroneous exclusion of evidence is reversible only if it probably resulted in an improper judgment. Id.; TEX. R. APP. P. 44.1(a)(1). In this case, the disputed evidence was excluded as irrelevant, and so the rules of evidence governing relevance are the starting point of our analysis.

 

A. Evidence of the Second Accident Is Relevant to the Issue of Causation

[2]Rule 401 broadly defines relevant evidence to include “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” TEX. R. EVID. 401. Evidence that is not relevant is inadmissible, while relevant evidence is admissible unless otherwise excluded by law. TEX. R. EVID. 402. Relevance also governs the scope of cross-examination in Texas, as the rules allow witnesses to be cross-examined “on any matter relevant to any issue in the case.” TEX. R. EVID. 611(b). And it is well established that “any fact which bears upon the credit of a witness would be a relevant fact, … whether it goes to his indisposition to tell the truth, his want of opportunity to know the truth, his bias, interest, want of memory, or other like fact.” Evansich v. Gulf, C. & Santa Fe R.R. Co., 61 Tex. 24, 28 (1884). Finally, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” TEX. R. EVID. 403.

 

[3][4][5]JLG argues that evidence of the second accident is relevant to the causation element of Garza’s negligence claim. We agree. Establishing causation in a personal injury case requires a plaintiff to “prove that the conduct of the defendant caused an event and that this event caused the plaintiff to suffer compensable injuries.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). For example, when an accident victim seeks to recover medical expenses, she must show both “what all the conditions were” that generated the expenses and “that all the conditions were caused by the accident.” Guevara v. Ferrer, 247 S.W.3d 662, 669 (Tex.2007). Further, “expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors.” Id. at 665. Finally, we have held that “if evidence presents ‘other plausible causes of the injury or condition that could be negated, the [proponent of the testimony] must offer evidence excluding those causes with reasonable certainty.’ ” Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex.1997) (alteration in Crump ) (emphasis in Crump omitted)); see also Harris v. Belue, 974 S.W.2d 386, 393–94 (Tex.App.–Tyler 1998, pet. denied) (rejecting the argument that the plaintiff failed to negate other probable causes of her injury in light of the lack of factual support in the record for those proposed causes).

 

*4 [6]In this case, Garza sought to prove that the negligence of JLG’s employee caused the July accident. She also sought to prove by expert testimony from Dr. Pechero that this accident caused the herniated discs in her neck along with all of the associated pain, medical expenses,FN3 loss of earning capacity, impairment, and disfigurement. JLG sought to undermine Garza’s theory and Dr. Pechero’s testimony by presenting evidence of the October 2008 accident as an alternative cause of those injuries. Garza argues that the record does not support a connection between the October accident and her injuries, rendering the evidence properly excluded.

 

FN3. Garza did not seek to recover medical expenses associated with her emergency treatment immediately after the second accident.

 

Garza relies in part on Farmers Texas County Mutual Insurance Co. v. Pagan, 453 S.W.3d 454 (Tex.App.–Houston [14th Dist.] 2014, no pet.). In Pagan, the plaintiff alleged that various neck and shoulder injuries were caused by a March 2008 car accident. Id. at 458. The defendant sought to introduce evidence of an April 2009 “horse incident,” FN4 which the trial court excluded. Id. at 459–60. The court of appeals affirmed, holding that the trial court “could reasonably conclude that informing the jury about a horse incident with no apparent connection to the lasting injuries at issue in this case would confuse the issues and mislead the jury.” Id. at 463. The court noted in pertinent part that (1) the interrogatory response in which Pagan identified the horse incident did not mention any resulting neck or shoulder injuries, (2) the medical records associated with the incident noted only “contusions” resulting from the fall, and x-rays showed that her spine and shoulders were normal, and (3) records from Pagan’s family doctor indicating that she complained of neck and shoulder pain at a visit after the horse incident did not reference the incident itself. Id.

 

FN4. The evidence of the facts surrounding that incident is inconsistent. Some evidence indicates that Pagan fell off a horse, other evidence indicates that she was “trampled,” and still other evidence indicates that she fell while leading the horse on foot. 453 S.W.3d at 459–60.

 

Regardless of whether Pagan was correctly decided, which we need not address, the evidence of a connection between the proposed alternative cause and the plaintiff’s injuries that the court found lacking in Pagan is present in this case. JLG’s offer of proof indicates that, as a direct result of the second accident, Garza was transported to a hospital on an immobilization board and constrained with a hard c-collar around her neck, she complained of neck pain once she arrived, and she returned to Dr. Pechero three weeks later for the first time since the conclusion of her physical therapy with complaints of continuous pain in her neck radiating into her shoulder. At that time, the MRI revealed the herniated discs. The circumstances surrounding the second accident and its aftermath provide the necessary factual support to present the second accident as a “plausible cause” of Garza’s injuries.FN5

 

FN5. Certainly, expert testimony in support of the alternative cause would lend support to its plausibility. And in some cases, expert testimony may in fact be necessary to elevate a proposed alternative cause from theoretically possible to plausible. But this is not that case.

 

Significantly, the exclusion of the second accident curtailed JLG’s ability to probe Dr. Pechero’s conclusions about causation by asking him to explain why he discounted the second accident as an alternative cause. JLG’s offer of proof shows that, in formulating his opinion, Dr. Pechero did not review the records from Garza’s emergency treatment after the second accident, which included the statements reflecting that Garza was experiencing neck pain in its wake. According to Garza’s responsive offer of proof, Dr. Pechero’s only explanation for ruling out the second accident as the cause of the herniations was that he relied on Dr. Berberian’s testimony to that effect. But Dr. Berberian concluded that neither accident caused Garza’s injuries, calling into question the credibility of the methods underlying Dr. Pechero’s approach. Cf. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 559 (Tex.1995) (upholding the exclusion of expert testimony when the expert failed to “carefully consider [and rule out] alternative causes”);FN6 see also TEX. R. EVID. 607 (“The credibility of a witness may be attacked by any party….”). JLG could not adequately cross-examine Dr. Pechero on those methods without discussing the improperly excluded evidence.

 

FN6. JLG did not move to exclude Dr. Pechero’s testimony in the trial court. We cite Robinson because it highlights the significance of alternative causes when a plaintiff must prove causation by expert testimony.

 

B. The Court of Appeals Erroneously Conflated Relevance and Evidentiary Sufficiency

*5 [7]The court of appeals held that the trial court correctly excluded evidence of the second accident because “no expert testimony was proffered to establish that the second collision caused any of Garza’s injuries.” ––– S.W.3d at ––––. As support for its holding, the court of appeals relied on a line of cases addressing the necessity of expert medical testimony to prove causation in the personal-injury context. As discussed below, in doing so the court of appeals conflated the concepts of relevance and evidentiary sufficiency and improperly shifted the burden of proof to the defendant.

 

Principal among the cases cited by the court of appeals was Guevara v. Ferrer, 247 S.W.3d 662 (Tex.2007). That case, like this one, involved a car accident that a jury found the defendant caused. Id. at 663, 665. The plaintiff, who had a complicated medical history that included hypertension, heart disease, and kidney failure, complained of stomach pains and received emergency treatment, including abdominal surgery, immediately after the accident. Id. at 663–64. Following that surgery, he spent three-and-a-half months in the hospital, two weeks in a continuing care facility, and two more weeks in another medical facility. Id. at 664. His family sought to recover all the medical bills generated by his stays at the hospital and both facilities, which exceeded $1 million, but did not present expert medical evidence to prove that the accident caused those expenses to be incurred. Id. at 664–65. We held that, while “the evidence [was] legally sufficient to support a finding that some of his medical expenses [such as those associated with his post-accident treatment in the emergency room] were causally related to the accident,” it was “not legally sufficient to prove what the conditions were that generated all the medical expenses or that the accident caused all of the conditions and the expenses for their treatment.” Id. at 669–70 (emphases added).

 

In Guevara, we applied the well-established general rule, cited above, that “expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors.” Id. at 665 (citing cases). And we did so in the context of considering the legal sufficiency of non-expert evidence to support a finding of causation. But we did not hold that the lack of expert testimony rendered any of the evidence irrelevant or otherwise admissible. In fact, relevance was not at issue in Guevara.FN7 In this case, although the court of appeals was purporting to analyze relevance, in effect it was improperly analyzing whether the evidence was legally sufficient to support a finding that the second accident caused Garza’s injuries. But JLG did not have the burden to prove causation; Garza did. It was Garza’s burden to prove that the first accident caused her injuries, and, as discussed above, the record in this case sufficiently demonstrates that the second accident is at least relevant to that inquiry even without an expert proponent.

 

FN7. We did confirm in Guevara that “evidence of temporal proximity … between an event and subsequently manifested conditions” is not irrelevant to causation, although “temporal proximity … does not, by itself, support an inference of medical causation.” 247 S.W.3d at 667–68.

 

[8][9]Further, JLG did not rule out the relevance of the second accident by presenting expert testimony that Garza’s injuries were degenerative and not trauma-induced. Parties may plead conflicting claims and defenses in the alternative so long as they have a “reasonable basis in fact [and] law.” Low v. Henry, 221 S.W.3d 609, 615 (Tex.2007). In turn, parties may present evidence of alternative, and even inconsistent, theories of relief, leaving to the jury to “choose the theory that it believes based upon its resolution of the conflicting evidence.” Wilson v. Whetstone, No. 03–08–00738–CV, 2010 WL 1633087, at *10 (Tex.App.–Austin April 20, 2010, pet. denied) (mem. op.) (holding that the plaintiff’s claim and evidence of the parties’ acquiescence to the alleged property boundary line were not fatal to her adverse possession claim, even assuming that the claims were mutually exclusive); see also In re Arthur Andersen LLP, 121 S.W.3d 471, 482 n.32 (Tex.App.–Houston [14th Dist.] 2003, orig. proceeding) (noting that a defendant could deny liability for conspiracy while simultaneously alleging that third parties were also liable for conspiracy). But the burden still falls on the plaintiff to establish the elements of her cause of action.

 

*6 In this case, as explained above, the burden was on Garza, the plaintiff, to establish both that JLG caused the July 2008 accident and that this accident caused her injuries. Part of that burden was to exclude with reasonable certainty other plausible causes of her injuries supported by the record. Crump, 330 S.W.3d at 218. JLG’s decision to present Dr. Berberian’s testimony in support of its theory that Garza’s injuries were degenerative—which the jury apparently found unpersuasive—did not relieve Garza of that burden. The defendant’s responsibility “is not that of proving, but the purely negative one of repelling or making ineffective the adversary’s attempts to prove.” James B. Thayer, The Burden of Proof, 4 HARV. L. REV.. 45, 56 (1890). In its efforts to repel Garza’s attempts to prove her case, JLG was entitled to present evidence of the second accident to the jury, which was relevant to Garza’s theory of causation irrespective of Dr. Berberian’s testimony. The trial court therefore abused its discretion in excluding that evidence.

 

C. Reversible Error

[10][11]The trial court’s error in excluding evidence of the second accident is reversible only if it probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1). We have declined to establish any “specific test” for determining whether evidentiary error resulted in an improper judgment, but we have held that the appellate court must review the entire record, “considering the state of the evidence, the strength and weakness of the case, and the verdict.” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex.2008) (internal quotation marks and citation omitted). We explained in Sevcik that “if erroneously admitted or excluded evidence was crucial to a key issue, the error was likely harmful.” Id. at 873. “By contrast, admission or exclusion is likely harmless if the evidence was cumulative, or if the rest of the evidence was so one-sided that the error likely made no difference.” Id. In this case, the evidence of the second accident was crucial to whether JLG’s negligence caused Garza’s injuries, and the harm in its exclusion was compounded by JLG’s curtailed cross-examination of Dr. Pechero. Accordingly, we hold that the trial court’s exclusion of evidence regarding the second accident was reversible error requiring a new trial.FN8

 

FN8. JLG did not contest on appeal the finding that its negligence caused the first accident. It asserted only that the erroneously excluded evidence tainted the findings as to the damages caused by that accident. However, because liability was contested in the trial court, both liability and damages must be remanded. Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex.2001) (per curiam) (applying TEX. R. APP. P. 44.1(b)).

 

III. Conclusion

The trial court abused its discretion in excluding evidence of the second accident, which was relevant to whether JLG’s negligence caused Garza’s damages. Accordingly, we reverse the court of appeals’ judgment and remand the case to the trial court for a new trial in accordance with this opinion.

Court of Appeal,

Third District, California.

CHOLAKIAN & ASSOCIATES et al., Petitioners,

v.

The SUPERIOR COURT of Sacramento County, Respondent;

Elaine McDonold et al., Real Parties in Interest.

 

C076759

Filed April 29, 2015

 

ORIGINAL PROCEEDING in mandate. Robert C. Hight, Judge. Petition granted with directions. (Super. Ct. No. 34–2014–00157913–CU–IC–GDS)Hinshaw & Culbertson, Edward F. Donohoe, Kendra L. Basner and Jared W. Matheson, San Francisco, for Petitioners.

 

No appearance for Respondent.

 

Dreyer BabichBuccola Wood Campora, Robert A. Buccola and Steven M. Campora, Sacramento, for Real Parties in Interest.

 

DUARTE, J.

*1 Under Code of Civil Procedure section 396b, subdivision (a),FN1 where an action has been filed in the “wrong venue,” a defendant may move to transfer the case to the “proper court for the trial thereof.” In such a case, “if an answer is filed,” the court may consider opposition to the motion to transfer and may retain the action in the county where filed to promote the convenience of witnesses or the ends of justice. (§ 396b, subd. (d).) The question in this case is whether, in a multi-defendant case, an answer must be filed by all defendants before the court may consider opposition to the motion to transfer venue. We conclude the answer is yes. In this case, the trial court considered opposition to the motion before all defendants had answered the complaint. Accordingly, we issue a peremptory writ of mandate directing the trial court to vacate its order denying the motion to transfer and to issue a new order granting the motion.

 

FN1. Further undesignated statutory references are to the Code of Civil Procedure.

 

BACKGROUND

The Underlying Action

In 2010, Debra Hackett was seriously injured in an accident in Sacramento County in which a tractor and trailer owned by Silva Trucking, Inc. and driven by Elaine McDonold jackknifed and collided with the vehicle being driven by Hackett.

 

Silva Trucking was insured by Carolina Casualty Insurance Company (CCIC), who retained the law firm Cholakian & Associates to provide a defense. Silva Trucking had an excess liability insurance policy with Lexington Insurance Company (LIC), who retained the law firm Lewis, Brisbois, Bisgaard & Smith, LLP (Lewis Brisbois) as counsel.

 

Prior to filing suit, Hackett and her husband William made a settlement demand of $5,000,000, the policy limits. The demand was not accepted.

 

In 2012, the Hacketts filed a personal injury action in Sacramento County against Silva Trucking and McDonold. The jury awarded the Hacketts $34.9 million in damages.

 

The Current Action

In 2014, Silva Trucking and McDonold brought suit in Sacramento County against LIC, CCIC, Cholakian & Associates and individual attorneys Kevin Cholakian and Jennifer Kung (collectively Cholakian), and Lewis Brisbois and individual attorney Ralph Zappala (collectively Lewis Brisbois). As to LIC and CCIC, the complaint alleged bad faith and breach of contract. As to the law firms and attorneys, the complaint alleged legal malpractice. The gravamen of the complaint was that the insurers unreasonably refused to accept the policy limit demand when the insured’s liability was clear and damages were known to be in excess of the policy limit. The attorneys failed to advise their insurer clients to accept the demand and the consequences of failing to do so, and failed to advise Silva Trucking and McDonold of their need for personal counsel.

 

LIC and CCIC responded with demurrers. Lewis Brisbois answered with a general denial and asserted 22 affirmative defenses.

 

Motion to Transfer Venue

Cholakian moved to transfer venue to San Mateo County, and requested attorney fees and costs. The motion was made on the ground that Sacramento County was not a proper venue because no individual defendant resided there and no corporate defendant had its principal place of business there. Cholakian presented supporting declarations by the individual attorneys attesting to their county of residence and their firm’s principal place of business. San Mateo was the residence of Kevin Cholakian and the principal place of business of Cholakian & Associates.

 

*2 Silva Trucking and McDonold opposed the motion. They first argued that venue was proper in Sacramento County under the special contract rule of section 395, subdivision (a), because Cholakian’s letter of retention was a special contract with an obligation to perform the contract in Sacramento County. They further argued that the case should stay in Sacramento County based on the convenience of witnesses and because answers had been filed. FN2 They provided numerous declarations from people they identified as likely witnesses, attesting that Sacramento County was more convenient than San Mateo County for trial.

 

FN2. LIC filed an answer shortly after this opposition was filed.

 

The trial court found venue was not proper in Sacramento County as to the professional negligence cause of action, rejecting the argument that the retention letter constituted a special contract. However, the court found persuasive the opposition to the motion to transfer based on convenience of witnesses, and denied the motion to transfer venue to San Mateo County.

 

Cholakian petitioned this court for a writ of mandate directing the trial court to vacate its order denying the motion to transfer venue and to enter a new order granting the motion. We issued an alternative writ of mandate.

 

DISCUSSION

I

Rules of Venue

[1][2][3]“Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.]” ( Brown v. Superior Court (1984) 37 Cal.3d 477, 482, 208 Cal.Rptr. 724, 691 P.2d 272 ( Brown ).) “For venue purposes, actions are classified as local or transitory. To determine whether an action is local or transitory, the court looks to the ‘main relief’ sought. Where the main relief sought is personal, the action is transitory. Where the main relief relates to rights in real property, the action is local. [Citation.]” ( Ibid., fn. 5.) Here the action sought damages for bad faith, breach of contract, and legal malpractice. The relief sought is personal, not related to real property, and thus the action is transitory. (See Peiser v. Mettler (1958) 50 Cal.2d 594, 601–602, 328 P.2d 953 [cause of action for damages for breach of contract is clearly a transitory cause of action].)

 

[4]Ordinarily, the proper county for trial of a transitory action is the county in which the defendants or some of them reside. (§ 395.) “It is well established that a defendant is entitled to have an action tried in the county of his or her residence unless the action falls within some exception to the general venue rule. [Citations.]” ( Brown, supra, 37 Cal.3d at p. 483, 208 Cal.Rptr. 724, 691 P.2d 272.) In this writ proceeding, Silva Trucking and McDonold have abandoned their argument that the “special contract” exception applies. They rely solely on section 396b.

 

Where the action is commenced in the wrong venue, that section permits a defendant to move to transfer the action to the proper court. This motion must be made at or before the time the defendant answers, demurs, or moves to strike. (§ 396b, subd. (a).) “In any case, if an answer is filed, the court may consider opposition to the motion to transfer, if any, and may retain the action in the county where commenced if it appears that the convenience of the witnesses or the ends of justice will thereby be promoted.” (Id. subd. (d).)

 

[5]“The court will not entertain a motion for change of venue on the ground of convenience of witnesses when the defendant has not filed an answer, for the reason that until the issues are joined the court cannot determine what testimony will be material. [Citations.] For the same reason, a motion for change of venue cannot be defeated on the ground of convenience of witnesses until an answer is filed.” ( Johnson v. Superior Court (1965) 232 Cal.App.2d 212, 214, 42 Cal.Rptr. 645.)

 

*3 [6][7][8]“A party aggrieved by an order granting or denying a motion to change the place of trial may petition this court for a writ of mandate requiring trial of the matter in the proper court. [Citations.] An appellate court reviews such an order under the abuse of discretion standard. [Citation.] A trial court abuses its discretion when venue is mandatory in a county other than the county where the action has been brought. [Citation.]” ( State Bd. of Equalization v. Superior Court (2006) 138 Cal.App.4th 951, 954, 42 Cal.Rptr.3d 116, fn. omitted.)

 

II

Petitioners’ Contention and Rules of Statutory Construction

[9]Cholakian contends venue in Sacramento County was improper and transfer to San Mateo County was mandatory. He argues that because he had not yet filed an answer, the court’s consideration of the opposition was premature. Cholakian relies on an encyclopedia entry: “[W]here there are several proper and necessary defendants, all of them must have filed answers before the plaintiff’s countermotion will be entertained.” (61 Cal.Jur.3d (2012) Venue, § 105, p. 498, citing Woods v. Berry (1931) 111 Cal.App. 675, 296 P. 332 ( Woods ).)

 

To determine whether the encyclopedia correctly states the rule requires interpretation of section 396b, subdivision (d). The interpretation of a statute presents a question of law, which we review de novo. ( Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 13, 21, 92 Cal.Rptr.3d 441.)

 

The rules of statutory construction are well settled. “Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.] If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we ‘ “select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” [Citation.]’ [Citations.]” ( Day v. City of Fontana (2001) 25 Cal.4th 268, 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)

 

III

Analysis

Silva Trucking and McDonold contend the “the plain language of the statute” refutes Cholakian’s contention that all defendants must file an answer before the trial court may consider the convenience of witnesses in opposition to a motion to transfer venue, providing instead that only a single defendant need answer in a multiple defendant case. They rely on section 396b, subdivision (d)’s provision that “if an answer is filed,” the court may consider opposition to the transfer motion. They argue that “an answer” requires only one. Since Lewis Brisbois, and subsequently LIC, filed an answer, Silva Trucking and McDonold assert the trial court properly considered the convenience of witnesses in denying the motion to transfer venue.

 

We reject this “plain meaning” argument. To the extent that the argument is based on the use of the seemingly singular classification of the term “an answer,” in interpreting the Code of Civil Procedure, “the singular number includes the plural.” FN3 (§ 17, subd. (a); see also Morgan v. Imperial Irrigation District (2014) 223 Cal.App.4th 892, 907, 167 Cal.Rptr.3d 687 [“under the general rules of statutory construction, the use of a word in the singular form is interchangeable with the use of the word in the plural form”].) To the extent the argument is based on the use of the indefinite article “an,” we observe that in these cases courts reverse the usual presumption favoring plain meaning, “and typically find that a term introduced by ‘a’ or ‘an’ applies to multiple subjects or objects, absent a contrary intent.” (Singer & Singer, 2A Sutherland Statutes and Statutory Construction (7th ed. 2014) § 47:34, p. 507.)

 

FN3. Appellate counsel for Cholakian surprised us at oral argument by appearing not only to be unfamiliar with this general rule of interpretation, but also to argue against it.

 

*4 Thus, in a case with multiple defendants, the statute may properly be read to say, “if answers are filed.” This reading suggests that all defendants’ answers must be filed prior to considering any opposition. At a minimum, the disputed meaning is ambiguous. In determining the meaning of the ambiguous statute, we look to the purpose of the statute and the “ostensible objects to be achieved.” ( Day v. City of Fontana, supra, 25 Cal.4th at p. 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)

 

[10]We first consider the reason for the requirement that an answer be filed prior to consideration of opposition to transfer based on witness convenience. As discussed, an answer must be filed to settle the issues and permit the trial court to determine what testimony (and thus what witnesses) are material. ( Johnson v. Superior Court, supra, 232 Cal.App.2d at p. 214, 42 Cal.Rptr. 645.) “When in opposition to a motion for a change to the residence of defendant the convenience of witnesses is alleged, and requires that an action be tried in the county where it was brought, the place of trial will not ordinarily be changed. This rule, however, is subject to the exception that, unless answer has been filed at the time the demand for change of venue is made, a counter-motion to retain the case on such ground will not lie, for the obvious reason that until the issues are settled the court cannot determine what testimony will be material. [Citations.]” ( Gordon v. Perkins (1928) 203 Cal. 183, 185, 263 P. 231, italics added.)

 

This reason for requiring an answer on file can be fulfilled only by requiring answers from all defendants so that all issues are settled. Although Silva Trucking and McDonold argue that here the issues can be determined by the answers that have already been filed, we interpret the statute as it must apply in all cases. (See Cal. Const., art. IV, § 16, subd. (a) [“[a]ll laws of a general nature have uniform operation”].) It is not difficult to foresee a case where a particular defendant’s answer raises new and different issues from another defendant’s answer, necessitating new and different witnesses, such as by raising a particular affirmative defense. Further, where, as here, some defendants have demurred, resolution of the demurrers may change the matters at issue and the material witnesses whose convenience should be considered in opposition to transfer.

 

[11][12]Second, we consider the long-standing policy of law favoring and safeguarding a defendant’s right to defend in his county of residence and construe section 369b in light of that policy. “The right of a defendant to have an action brought against him tried in the county in which he has 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 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.’ [Citation.]” ( Brown v. Happy Valley Fruit Growers (1929) 206 Cal. 515, 521–522, 274 P. 977 ( Happy Valley ).) “[I]t has been declared to be the policy of the law jealously to guard the right of the defendant to have a trial in the county where he resides….” ( Neet v. Holmes (1942) 19 Cal.2d 605, 612, 122 P.2d 557.) “Because the law favors the right of trial at the defendant’s residence, a plaintiff who lays venue elsewhere must be able to show the action is either local or is a transitory action triable outside the county of the defendant’s residence. [Citations.]” ( Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469, 39 Cal.Rptr.2d 787.)

 

*5 [13]This right is personal to each defendant and cannot be waived by another defendant. “ ‘The language of section 395 requires the action to be tried in the county in which the defendants, or some of them, reside, not where they do not reside. The consent of certain defendants not residing in the county where the action is brought could not take away from the defendants who do not reside there the right to have the cause transferred to the county of their residence. To hold otherwise would be a violation of the provisions of section 395.’ ” ( Happy Valley, supra, 206 Cal. at p. 521, 274 P. 977, quoting Wood, Curtis & Co. v. Herman Min. Co. (1903) 139 Cal. 713, 716, 73 P. 588, italics added.) Because the right of each defendant to defend in its own county cannot be forfeited by the actions of other defendants, the answers of other defendants cannot take the place of each defendant’s own answer, necessary to permit consideration of opposition to that same defendant’s motion to transfer venue.

 

Thus both the purpose of section 396b, subdivision (d) and the policy relating to venue favor interpreting that subdivision to require answers of all proper defendants be filed before an opposition to a motion to transfer to a correct court will be considered on the basis of convenience of witnesses or the ends of justice.FN4

 

FN4. Answers are required from only proper defendants because only proper defendants are considered in determining venue. “If any person is improperly joined as a defendant or has been made a defendant solely for the purpose of having the action tried in the superior court in the county where he or she resides, his or her residence shall not be considered in determining the proper place for the trial of the action.” (§ 395, subd. (a).)

 

Silva Trucking and McDonold contend no statute or case law supports this interpretation. They contend the Woods case, decided two years before section 396b was enacted, explicitly declined to address the issue of whether all defendants’ answers had to be filed in order to consider opposition. Further, they assert—erroneously—that in Woods all defendants had filed answers.

 

In Woods, supra, 111 Cal.App. 675, 296 P. 332, an action was filed in Shasta County. Three defendants, all San Francisco residents, separately moved to transfer venue to San Francisco. All defendants had demurred and two had filed answers; the third, Berry, had not. Plaintiff filed a counter motion to retain venue in Shasta County based on convenience of witnesses. ( Id. at p. 681, 296 P. 332.) This court found Berry’s motion for transfer should have been granted, despite his bankruptcy. ( Id. at p. 680, 296 P. 332.) In support of our reasoning, we quoted at length from Happy Valley, as we have done ante. ( Id. at p. 682, 296 P. 332.)

 

The Woods court declined to consider the transfer motions filed by the two answering defendants. ( Woods, supra, 111 Cal.App. at p. 683, 296 P. 332.) Nor did it address the argument that the answers of these defendants were filed only to follow the then prevailing rule requiring an answer at the same time as the demurrer, so the answers should not open the door to a counter motion based on the convenience of witnesses. ( Ibid.) Silva Trucking and McDonold cite to this portion of Woods in asserting that Woods did not address the issue before this court.

 

Woods does, however, support our current and continuing interpretation of section 396b. In Woods, we held the motion to transfer by defendant Berry, who had not filed an answer, should have been granted, notwithstanding the counter motion by plaintiffs. ( Woods, supra, 111 Cal.App. at p. 681, 296 P. 332.) That is the same result we reach here. We recognize that the Woods decision predated section 396b, but it reflects the strong and continuing policy favoring trial in the county of defendant’s residence.

 

*6 Silva Trucking and McDonold contend that judicial economy and the policy to eliminate delay in the trial courts (see Gov.Code, §§ 68600 et seq.) are best served by permitting a trial court to consider the convenience of witnesses before all answers are filed. But that is not always the situation. As discussed, we can easily imagine multiple defendant cases where a late answering defendant’s answer changes the calculus as to what county is the most convenient for witnesses. Further, the potential for a retransfer pursuant to section 397 appears to have been contemplated. “After the answer is filed, plaintiff may move for retransfer to the original court for the convenience of witnesses and the ends of justice. [Citation.]” ( Scribner v. Superior Court (1971) 19 Cal.App.3d 764, 766, 97 Cal.Rptr. 217.)

 

[14]Further, these general policies do not trump the language of the statute—which may be read to require “answers,”—the reason for the answer requirement, and the policy specific to venue. We note that nothing in the law provides for venue to be determined at the commencement of the action based on the convenience of plaintiff’s witnesses. Plaintiff can control the number of transfers by following the venue rules. “If a plaintiff has failed to heed the venue rules above, and the defendant makes timely objection, the court must order the action transferred to any ‘proper’ county requested by defendant. (This is true even if grounds exist for retransferring the action back to the county where filed, on the grounds of ‘convenience of witnesses’ …)” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 3:551, pp. 3–134 to 3–135.)

 

DISPOSITION

Cholakian’s petition for a writ of mandate is granted. Let a peremptory writ of mandate issue directing the trial court to: (1) vacate its order denying Cholakian’s motion to transfer venue to San Mateo County; and (2) enter a new and different order granting that motion. Cholakian shall recover costs on appeal. (Cal. Rules of Court, rule 8.493(a)(1)(A).)

 

We concur:

NICHOLSON, Acting P.J.

MAURO, J.