Haurat v. Superior Court for Los Angeles County

• Decision Date: 04 April 1966
• Citation: 50 Cal.Rptr. 520,241 Cal.App.2d 330
• Court: California Court of Appeals Court of Appeals
• Parties: Armand G. HAURAT, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Grover D. KING, Real Party in Interest. Civ. 30202.

Page 520

50 Cal.Rptr. 520

241 Cal.App.2d 330

Armand G. HAURAT, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Grover D. KING, Real Party in Interest.

Civ. 30202.

District Court of Appeal, Second District Division 3, California.

April 4, 1966.

Ricardo J. Hecht, San Francisco, for petitioner.

No appearance for respondent.

Bewley, Knoop, Lassleben & Whelan, Whittier, for real party in interest.

FRAMPTON, Justice pro tem. ^*

Petitioner seeks a writ of mandate to compel the superior court to vacate and set aside its order denying, and to grant his motion for, a change of venue from Los Angeles County to the City and County of San Francisco.

The real party in interest filed his complaint in Los Angeles County. Petitioner, defendant, filed his answer and notice of motion, supported by his affidavit, for a change of venue on the sole ground that he resided in the City and County of San Francisco. The real party filed opposition to the motion and notice of counter motion for an order to retain the action in Los Angeles County on the ground that convenience of witnesses and the ends of justice would thereby be promoted. In support thereof he filed a declaration in which, among other things, he declared that the action is based upon the breach by petitioner of an agency agreement which was made in Los Angeles County.

The petition states that the trial court denied the motion for change of venue and ordered the counter motion off calendar. The real party has filed no answer to the petition. In such case we may assume the truth of the statements made in the petition. Since it appears that the counter motion was not heard, it follows that the retention of venue as laid was based solely on the ground that Los Angeles County was a proper county for trial of the action.

The complaint sets forth three causes of action. The first cause of action is entitled 'Restitution of Converted Funds.' It is alleged therein that the parties entered into an oral agreement whereby real party employed petitioner as an agent and delivered to him $2,300 to be used to obtain an option on a racehorse, an additional $20,700 to complete the purchase, and an additional $2,300 as payment of an agreed commission to petitioner; petitioner did not use the initial $2,300 to acquire the option, but converted said sum to his own use; petitioner used only $14,223 to purchase the horse and misappropriated and converted to his own use $8,777; thereafter real party learned that petitioner had obtained a secret profit from the transaction and had converted said sum to his own use; real party has demanded the return of said sum of $8,777 and the sum of $2,300 paid as commission; petitioner has failed and refused to return said sums; there is now due, owing and unpaid the sum of $8,777 together with interest at 7 per cent from May 21, 1965 and $2,300 together with interest at the rate of 7 per cent from June 11, 1965; petitioner converted said funds knowingly and intentionally and for the purpose of defrauding real party, and accordingly real party seeks as exemplary damages the sum of $10,000 in addition to restitution of the sums mentioned.

The second cause of action is entitled 'Money Had and Received.' It sets forth a common count for $11,077 with interest at 7 per cent from July 28, 1965.

The third cause of action is entitled 'Accounting.' It incorporates all the allegations of the first cause of action and further alleges that real party has demanded of petitioner a complete accounting of said funds and any secret profits made by petitioner, but that petitioner has failed and refused to render same and to pay over said converted funds and any secret profits.

The prayer seeks a judgment for the sums mentioned, including exemplary damages, or, in the alternative, and accounting and judgment for all sums found owing to real party, together with judgment for the amount of the commission paid to petitioner.

The petitioner contends that the causes of action set forth in the complaint are ex delicto in nature, that the real party seeks equitable remedies, and for these reasons a change of venue to the city and county of his residence should have been granted. In the court below the real party contended that the action sounds in contract in that it alleges a breach of the agency agreement which was made in Los Angeles County and that under the provisions of section 395 of the Code of Civil Procedure venue is proper in Los Angeles County.

The general rule is that the residence of defendant is the proper place for trial, and this applies to personal torts not involving physical injury, including conversion. (Spangenberg v. Spangenberg, 123 Cal.App. 387, 11 P.2d 408 (conversion); Sausen v. Anderton, 129 Cal.App.2d 324, 276 P.2d 814 (fraud).) It also applies to contract actions with certain exceptions set out in section 395 of the Code of Civil Procedure. That section reads in part:

'(1) In all other cases, except as in this section otherwise provided, and subject to the power of the court to transfer actions or proceedings as provided in this title, the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action. * * * When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary. * * *'

When several causes of action are alleged in a complaint a motion for change of venue must be granted on all causes if defendant is entitled to a change on any one (Quick v. Corsaro, 180 Cal.App.2d 831, 835, 4 Cal.Rptr. 674; Johnson v. Superior Court, 232 Cal.App.2d 212, 217, 42 Cal.Rptr. 645). Thus petitioner in the present proceeding is entitled to a transfer of the action to the county of his residence unless Los Angeles County is proper as to each count.

'In passing upon a motion for a change of venue the court must take the pleading as it is written; its sufficiency is not before the court, and the court may not speculate upon the appearance of the complaint after it is challenged by demurrer or as it may be tested by motions to strike. (Citations.)' (Johnson v. Superior Court, supra, 232 Cal.App.2d 212, 217--218, 42 Cal.Rptr. 645, 649.) All ambiguities will be construed against the pleader to the end that a defendant shall not be deprived improperly of his fundamental right to have the cause tried in the county of his residence. (Bybee v. Fairchild, 75 Cal.App.2d 35, 37, 170 P.2d 54; Kaluzok v. Brisson, 27 Cal.2d 760, 167 P.2d 481, 163 A.L.R. 1308.)

It is apparent that each count of the present complaint involves an agency relation arising from an agreement between the parties. Agency is both a consensual and a fiduciary relation. An agent is not merely a promiser or a promisee. The existence of the fiduciary relation modifies all agency agreements and creates rules which do not apply to contracts in which one party is not an agent for the other. The obligations of an agent are the same as those imposed on a trustee (Civ.Code, § 2322, subd. 3; Rodes v. Shannon, 222 Cal.App.2d 721, 725, 35 Cal.Rptr. 339). Unless otherwise agreed, an agent who makes a profit in connection with transactions conducted by him on behalf of the principal is under a duty to give such profit to the principal. (Rest.2d Agency, § 388.) The principal has a cause of action either for a breach of contract or for a tort as a remedy for damage caused by the violation of any duty of loyalty on the part of an agent. He may also charge the agent with anything the agent receives as the result of a violation of duty (Rest.2d Agency, § 403). A tort action is not based upon the theory that the agent has failed to perform his promise, but upon the theory that the agent has improperly dealt with the affairs entrusted to him by the principal. In such case, however, the question of whether or not the agent has improperly managed the principal's affairs depends upon the interpretation of his agreement with the principal. (See Rest.2d Agency, § 376, com. a.)

Where the recovery sought is the return of secret profits or other benefits, the gist of the action is in Quasi contract on the promise implied by law that an agent holds such property or monies for his principal. (Arcturus Mfg. Corp. v. Rork, 198 Cal.App.2d 208, 213, 17 Cal.Rptr. 758; Crogan v. Metz, 47 Cal.2d 398, 303 P.2d 1029; Oil Well Core Drilling Co. v....