Gutierrez v. Superior Court, City and County of San Francisco

• Decision Date: 28 July 1966
• Citation: 52 Cal.Rptr. 592,243 Cal.App.2d 710
• Court: California Court of Appeals Court of Appeals
• Parties: Linda GUTIERREZ, a Minor, by Jose A. Gutierrez, her Guardian Ad Litem, Petitioner, v. SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, Respondent, OJAL VALLEY INN, a copartnership, et al., Real Parties in Interest. Civ. 23593.

Page 592

52 Cal.Rptr. 592

243 Cal.App.2d 710

Linda GUTIERREZ, a Minor, by Jose A. Gutierrez, her Guardian Ad Litem, Petitioner, v. SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, Respondent OJAL VALLEY INN, a copartnership, et al., Real Parties in Interest.

Civ. 23593.

District Court of Appeal, First District Division 1, California.

July 28, 1966.

Hearing Denied Sept. 28, 1966.

David B. Gold, San Francisco, for petitioner.

Ernest Arnold, Sedgwick, Detert, Moran & Arnold, San Francisco, for real party in interest, Libbey-Owens-Ford Glass Co.

Robert A. Seligson, John P. Hardy, Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, for real party in interest, Ojai Hotel Co.

Clyde R. Rockwell, San Francisco, for real party in interest, Northrop Architectural Systems.

MOLINARI, Justice.

In this mandamus proceeding the essential question for determination is whether the trial court could disregard the residence of a party who had been sued by a fictitious name, and whose true name was substituted after a motion to change venue, but before the hearing thereon. We have concluded that the court below was required to consider the residence of such party in determining the motion for change of venue, and that since the residence of such defendant was established to be in San Francisco County, the trial court erred in ordering a change of venue to Ventura County. In reaching this conclusion we have determined that the trial court was also in error in finding that plaintiff's joinder of such party defendant was not made in good faith.

In the instant action a complaint for damages for personal injuries was filed on January 11, 1966 ¹ by plaintiff in San Francisco County naming Ojai Valley Inn, Ojai Hotel Company, Northrop Architectural Systems and 15 Does as defendants. The complaint alleged that plaintiff sustained injuries when she came into contact with certain sliding glass doors while a paying lodger at the Ojai Valley Inn. It was alleged that defendants Ojai Hotel Company and Does One through Eight were the owners and operators of Ojai Valley Inn; that defendants Northrop Architectural Systems and Does Nine through Eleven were the manufacturers, fabricators, distributors and installers of the subject glass doors; and that defendants Does Twelve through Fourteen were the manufacturers, fabricators and distributors of the glass used in said doors. With respect to the charging allegations, the complaint was framed in two 'causes of action,' the first alleging negligence against all of defendants 'in designing, manufacturing, constructing, selling, distributing, installing and maintaining' the hotel premises and the subject doors; and the second seeking recovery on a warranty theory against Northrop Architectural Systems and Does Nine through Fourteen.

The subject complaint specifically alleged that Northrop Architectural Systems and Does Nine through Fourteen 'have their principal place of business in the City and County of San Francisco' and alleged that the true names and capacities of all defendants were unknown to plaintiff 'who therefore sues said defendants by such fictitious names and designations.'

On March 15, Ojai Hotel Company, a corporation 'hereinafter referred to as Ojai), filed a notice of motion for change of venue wherein it alleged that it was the defendant sued as Ojai Valley Inn, Ojai Hotel Company and Does One through Eight. The notice stated that on April 1, or as soon thereafter as the matter could be heard, Ojai would move to transfer the cause to Ventura County. The motion was predicated on the allegation that the alleged injury took place in Ventura County, that Ojai's principal place of business was in Ventura County, and that none of defendants resided or had their place of business in San Francisco County. A declaration of facts in support of the motion made by the attorney for Ojai was filed in conjunction with the motion. A similar motion, supported by the declaration of its attorney, was filed on March 21 by Northrop Architectural Systems, a corporation (hereinafter referred to as Northrop), alleging that its place of business was in Los Angeles County and that Ventura County was the proper place for trial of the action.

The motions for change of venue were not heard on April 1 but were apparently continued by stipulation to either April 7 or 8. ² On April 6 a declaration of service was filed showing that on March 25 Libbey-Owens-Ford Glass Company, a corporation (hereinafter referred to as Libbey), was served as 'Doe Twelve' in San Francisco County, and on the same day a 'First Amendment to Complaint' was served and filed by plaintiff reciting that pursuant to section 474 of the Code of Civil Procedure ³ defendant sued in the complaint under the fictitious name of 'Doe Twelve' was thereby amended to read 'Libbey-Owens-Ford Glass Company.' Additionally, on April 6 counsel for plaintiff filed a declaration stating that on March 25 he had ascertained the name of 'Doe Twelve' and served Libbey as 'Doe Twelve'; that Libbey was an Ohio corporation doing business in California and had designated with the Secretary of State its principal place of business in California as 635 Rialto Building, San Francisco, and the C T Corporation System as its agent to accept service; that Libbey had complied with former section 6202 of the Corporations Code of the State of California; that service of summons and complaint was effectuated by service upon said designated agent on March 25; that on April 6, 'a substitution of name' was filed substituting Libbey for 'Doe Twelve'; that Libbey, accordingly, at all times mentioned in the complaint was a resident of San Francisco County; that Libbey was a necessary party to the action as a manufacturer and distributor of the glass installed in the doors with which plaintiff collided; and that if this glass was defective in its manufacture, construction and distribution as alleged in the complaint, Libbey would be liable to plaintiff in damages. A supplemental declaration was served and filed by counsel for Northrop prior to the hearing on the motion for change of venue asserting that Libbey had its principal place of business in Ohio, with offices in California consisting of a sales office in San Francisco and a regional sales office in Los Angeles, and that any glass sold in the Ventura area would have been sold out of the Los Angeles office. This declaration concluded, on information and belief, that Libbey had been joined solely for placing venue in San Francisco County.

When the motions for change of venue came on for hearing Libbey had not appeared in the action ⁴ nor did it specially appear with respect to these motions. The motions were heard upon the declarations hereinbefore alluded to. In addition there was introduced in evidence by plaintiff a letter from the Secretary of State showing that Libbey had designated San Francisco as its principal place of business in California. On April 8 the motions of Ojai and Northrop to change venue and to transfer the matter to Ventura County were granted. This ruling was based upon the rule that in determining venue the trial court must look only to the residence of defendants who are specifically named at the time the motion for change of venue is tendered; that this rule cannot be circumvented by an amendment substituting the true name of a defendant who has been named in the complaint by a fictitious name; and that plaintiff, in designating Libbey as a defendant, did so solely for the purpose of placing venue in San Francisco County and therefore was not acting in good faith.

Plaintiff contends that although it is the general rule that residence for purposes of venue is to be determined by the pleadings at the time the motion for change of venue is tendered, this rule applies only when a complaint undertakes to make substantive amendments to the pleadings, but does not apply where the amendment merely substitutes the true name of a defendant sued and previously named in the complaint by a fictitious name. Ojai and Northrop maintain that the general rule, requiring that a motion to change venue be determined by the pleadings as they stand at the time the motion is interposed, applies in the instant case. This rule, sometimes denominated the 'freezing of facts' doctrine, has been articulated in a myriad of cases. (See Buell v. Dodge, 57 Cal. 645; Brady v. Times-Mirror Co., 106 Cal. 56, 60, 39 P. 209; Donohoe v. Wooster, 163 Cal. 114, 117, 124 P. 730; McClung v. Watt, 190 Cal. 155, 159, 211 P. 17; Prendergast v. Mitchell-Silliman Co., 65 Cal.App. 456, 458, 224 P. 243; Kallen v. Serretto, 126 Cal.App. 548, 549, 14 P.2d 917; Sims v. Mains, 131 Cal.App. 307, 310, 21 P.2d 447; Story v. Christin, 137 Cal.App. 484, 486, 30 P.2d 1016; Vickerson v. Wehr, 42 Cal.App.2d 678, 682, 109 P.2d 743; Warren v. Ritter, 61 Cal.App.2d 403, 405, 142 P.2d 948; Konnoff v. Fraser, 62 Cal.App.2d 788, 791--792, 145 P.2d 368; Abbey v. Schaefer, 108 Cal.App.2d 554, 556--557, 239 P.2d 44; Wiley v. Long, 148 Cal.App.2d 230, 233, 306 P.2d 1063; Estep v. Budger Mfg. Co., 164 Cal.App.2d 119, 122, 330 P.2d 298; Pfefferle v. Lastreto, 206 Cal.App.2d 575, 581, 23 Cal.Rptr. 834, 99 A.L.R.2d 663; see also 92 C.J.S. Venue § 185, p. 912; 25 Cal. Jur., Venue, § 41, p. 907; 51 Cal.Jur.2d, Venue, § 93, p. 215; 1 Witkin, Cal.Procedure (1954) Actions, § 189, p. 704; 'The Nonresident Defendant--Seventy Years of Confusion,' 4 Stan.L.Rev. 79, 81.) ⁵

Before proceeding with a discussion of the applicability of the subject rule to the instant case it should first be noted that 'A corporation * * * may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.' (Cal.Const., art. XII, § 16.)...