Dunas v. Superior Court

• Decision Date: 26 June 1970
• Citation: 87 Cal.Rptr. 719,9 Cal.App.3d 236
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph DUNAS, Petitioner, v. The SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF LOS ANGELES, the Honorable Robert W. Kenny, Judge Thereof, Respondent, Wilbur H. MAXWELL, Frances J. Maxwell, and Stewart Title Company of Orange County, Real Parties in Interest. Civ. 36141.

Page 719

87 Cal.Rptr. 719

9 Cal.App.3d 236

Joseph DUNAS, Petitioner, v. The SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF LOS ANGELES, the Honorable Robert W. Kenny, Judge Thereof, Respondent Wilbur H. MAXWELL, Frances J. Maxwell, and Stewart Title Company of Orange County, Real Parties in Interest.

Civ. 36141.

Court of Appeal, Second District, Division 5, California.

June 26, 1970.

Lipofsky & Schulman, Louis A. Lipofsky, Los Angeles, and Barry A. Schulman, Los Angeles, for petitioner.

No appearance for respondent.

Waldron & Bryant, Robert F. Waldron, and Kenneth A. Bryant, Santa Ana, for Wilbur H. Maxwell and Frances J. Maxwell, real parties in interest.

SELBER, ^* Associate Justice pro tem.

Petitioner seeks mandamus to compel the respondent Superior Court of Los Angeles County to vacate its order of February 20, 1970, by which said court, upon a motion for reconsideration, reaffirmed its earlier order granting a motion for change of venue, and to require said court to deny the motion for change of venue to Orange County.

The record shows that a first amended complaint for specific performance was filed in respondent court on October 14, 1969, by petitioner Joseph Dunas against Wilbur H. Maxwell, Frances J. Maxwell, Stewart Title Company of Orange County, and several Does. It is alleged therein that plaintiff entered into a contract to purchase certain real property, the agreements being embodied in a certain escrow held by defendant title company, that the matter went into escrow, and that defendants defaulted and refused to convey the property to plaintiff. On December 2, 1969, defendants Maxwell filed a demurrer to the complaint and a motion for change of venue to Orange County, upon the grounds that '(1) The County of Orange, being the residence of said defendants at the commencement of this action, is the proper County for the trial of this action (C.C.P. 395); (2) The contract sued upon was entered into in Orange County and was to be performed there (C.C.P. 395); and (3) The convenience of witnesses and the ends of justice would be promoted by changing the venue to the County of Orange (C.C.P. 397(3)).' The motion was opposed upon the ground that the action is one to compel the conveyance of real property located in Los Angeles County and therefore the action was properly commenced in Los Angeles County under the provisions of section 392, Code of Civil Procedure. The motion for change of venue was granted by respondent court on December 9, 1969. Counsel for defendants mailed notice of this ruling to petitioner's counsel on December 19, 1969.

On December 30, 1969, petitioner noticed a motion 'for reconsideration' of the December 9 order granting the change of venue. It is stated therein that the motion 'will be based upon this notice of motion, declaration of merits and of the facts supporting the motion, and a memorandum of points and authorities in support of the motion attached hereto and upon all of the pleadings on file in the within case.' Said 'declaration' is not signed, nor is it made under penalty of perjury. A reading of said documents and the supporting points and authorities shows that the motion was simply an attempt to relitigate the merits of the matter. It was but a further attempt to convince the trial court that the action was one for recovery of real property and thus properly triable in Los Angeles County. The motion does not purport to be one under section 473 of the Code of Civil Procedure. There are no allegations of mistake, inadvertence, surprise or excusable neglect; no claim is made that petitioner was not given an opportunity to fully present his case at the prior hearing.

On February 20, 1970, respondent court granted petitioner's motion to reconsider and, upon such reconsideration, again ruled that the cause be transferred to Orange County. Notice to this effect was mailed by counsel for defendants on February 27, 1970. The within petition, seeking a writ of mandate pursuant to the provisions of section 400, Code of Civil Procedure, was filed on March 6, 1970.

It is our conclusion that, under the circumstances of this case, there is no recognized procedure for petitioner's motion to 'reconsider' and, accordingly, respondent court acted in excess of its jurisdiction in entertaining and ruling upon said motion.

The appropriate method to obtain relief from an order granting or denying a motion for change of venue is a petition for a writ of mandate pursuant to the provisions of section 400, Code of Civil Procedure. (Hennigan v. Boren, 243 Cal.App.2d, 810, 814, 52 Cal.Rptr. 748.) Said section provides that 'within 10 days after service of written notice of the order, or within such additional time not exceeding 20 days as the court may within the original 10 days allow' the party aggrieved may petition the court of appeal for a writ of mandate requiring trial of the case in the proper court. Notice of the granting of the original motion for change of venue in the instant case was served upon petitioner, through his attorney, by mail on December 19, 1969. He had ten days within which to petition this court for a writ of mandate but, instead of following this procedure, petitioner noticed a motion for reconsideration. Insofar as the order of December 9, 1969 is concerned, the within petition for mandate under section 400 was not timely filed. The question remains whether petitioner may invoke the remedy provided by section 400 with regard to the order of February 20, 1970 made upon reconsideration.

There is no statutory authority for a motion for 'reconsideration.' In San Francisco Lathing, Inc. v. Superior Court, 271 Cal.App.2d 78, 80--81, 76 Cal.Rptr....