Harden v. Skinner and Hammond

• Decision Date: 15 February 1955
• Citation: 279 P.2d 978,130 Cal.App.2d 750
• Court: California Court of Appeals Court of Appeals
• Parties: John HARDEN, Jr., Plaintiff, Cross-Defendant and Respondent, v. SKINNER AND HAMMOND et al., Defendants, Cross-Complainants and Appellants. Civ. 16166.

Page 978

279 P.2d 978

130 Cal.App.2d 750

John HARDEN, Jr., Plaintiff, Cross-Defendant and Respondent, v. SKINNER AND HAMMOND et al., Defendants, Cross-Complainants and Appellants.

Civ. 16166.

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

Feb. 15, 1955.

Philip S. Ehrlich, Albert A. Axelrod, Irving Rovens, San Francisco, for appellants.

Morgan & Beauzay, San Jose, for respondent.

PETERS, Presiding Justice.

On the grounds of the convenience of witnesses and that the ends of justice would be promoted by the change, plaintiff John Harden, Jr., moved for a change of venue from San Francisco to Santa Clara County. The trial court granted the motion. Defendants, Skinner and Hammond, et al., appeal. The sole question presented is whether the trial court abused its discretion in granting the motion.

By his first amended complaint respondent sought an accounting after dissolution of a claimed partnership. So far as pertinent here, it is therein alleged that by oral agreement respondent entered into a partnership with Skinner and Hammond, a then existing partnership, for the purpose of engaging in the accounting business in San Jose under the name 'Skinner and Hammond'; that the firm was thereafter dissolved by mutual consent; and that although respondent, in reliance on the dissolution, abandoned the San Jose office, no steps have been in fact taken to wind up the partnership's affairs.

Appellants, who are the partnership of 'Skinner and Hammond,' and five individuals, other than respondent, comprising that firm, by answer denied that any partnership relationship ever existed between respondent and Skinner and Hammond. By cross-complaint it is alleged that respondent was an employee of the partnership and that, as such, he breached his position of trust by soliciting clients of the partnership as clients for a new firm formed by him. This cross-complaint prays that respondent be enjoined from soliciting clients, for a return of certain property, and for the partnership's share of the income of the San Jose office, operated by respondent.

The notice of motion for change of venue recites that such motion will be made 'on the ground that the convenience of witnesses and the ends of justice would be promoted by the change.' The supporting affidavit contains the names and addresses of two sets of witnesses. The first list contains the names and addresses of 90 witnesses, all living in Santa Clara County. It is averred that all 90 are necessary witnesses who were former clients of the alleged partnership and who will testify that they did business with the partnership in San Jose; that many of them received announcements of the selection of respondent as a partner in the firm; that respondent signed their tax returns as a partner in the firm; and that he contracted as to charges, settled accounts, and had his name on the office door as a resident partner. The second list contains the names and addresses of 9 employees of the alleged partnership, all living in Santa Clara County. These, too, are alleged to be necessary witnesses who, in addition to testifying as to the above facts, will also testify that in conversations with them appellants referred to respondent as a partner.

In their opposing affidavit appellants insist that the primary issue presented by the pleadings is whether or not a San Jose partnership existed. They offer to stipulate that statements were sent to clients announcing the selection of Harden as a resident partner of the firm, and that his name so appeared on the front door of the office, and on all stationery and forms used by Skinner and Hammond. That portion of these witnesses' proposed testimony as set forth in respondent's affidavit to the effect that respondent signed the clients' tax returns as a partner is attacked as irrelevant, incompetent, immaterial, self-serving, not the best evidence and hearsay, and inadmissible at the trial. The handling of the clients' accounts as a partner is claimed to be incompetent, irrelevant and immaterial, and as calling for the opinion and conclusion of the witnesses. It is also averred that the conversations between appellants and the employees set forth in respondent's affidavit are not admissible until respondent first makes a prima facie showing of the existence of the partnership. Appellants also aver that all of the witnesses named by respondent reside within 100 miles of San Francisco, and so, of course, could be subpoenaed, and that the principal office of the partnership is in San Francisco.

On this showing the trial court granted the motion for a change of venue. In our opinion the granting or denying of the motion was well within the discretion of the trial court. Its action, therefore, cannot be disturbed by an appellate court.

Section 397 of the Code of Civil Procedure provides, in subdivision 3, that a change of venue may be granted 'When the convenience of witnesses and the ends of justice would be promoted by the change.' There can be and there is no dispute that the granting or denying of such a motion is discretionary with the trial court and is subject to reversal only on a clear showing of an abuse of this discretion. Wood v. Silvers, 35 Cal.App.2d 604, 96 P.2d 366, 97 P.2d 265; Rios v. Lacey Trucking Co., 123 Cal.App.2d 865, 268 P.2d 160. There can also be no doubt that before such a motion can be granted there must be some showing of both convenience of witnesses and that the ends of justice will be served by the change. People v. Spring Valley Co., 109 Cal.App.2d 656, 241 P.2d 1069; Churchill v. White, 119 Cal.App.2d 503, 259 P.2d 974; Rios v. Lacey Trucking Co., 123 Cal.App.2d 865, 268 P.2d 160. It is equally clear that before such a motion may be granted it must appear that the witnesses involved will testify as to relevant and material facts. Mize v. Old Taylor Fruit Co., 114 Cal.App. 588, 300 P. 128; Gordon v. Perkins, 203 Cal. 183, 263 P. 231; Ennis-Brown Co. v. Long, 7 Cal.App. 313, 94 P. 250. Obviously, if the opposing party offers to stipulate to the facts to be adduced, this eliminates that issue from the case and the necessity of producing witnesses to prove the fact involved. Blossom v. Waller, 30 Cal.App. 439, 158 P. 509; Wood v. Silvers, 35 Cal.App.2d 604, 96 P.2d 366, 97 P.2d 265. The fact that the witnesses may be subject to subpoena is not at all relevant on any issue here presented. Obviously, their convenience may be served, and the ends of justice served, by granting the change even though such witnesses could be subpoenaed.

Now how do these rules apply to the present case?

It is apparent that there was a sufficient showing of convenience of witnesses. All of the 90 client-witnesses live in Santa Clara County. Of course, the 'mere numerical majority of the witnesses on one side or the other does not necessarily determine the merits of the motion', Wood v. Silvers, supra, 35 Cal.App.2d at page 607, 96 P.2d at page 367, but it is equally clear that a court cannot be said to have abused its discretion if it permits the trial to be had as near as possible to the residences of the greatest number of witnesses. Respondent's affidavit shows proximity of all 90 witnesses' residences to the requested locus of the trial. Appellants made no countershowing that their witnesses would be inconvenienced by the change, except to aver that the principal place of business of the partnership was San Francisco. This averment may be disregarded because convenience of ...