Hayutin v. Rudnick

• Decision Date: 29 December 1952
• Citation: 115 Cal.App.2d 138,251 P.2d 707
• Court: California Court of Appeals Court of Appeals
• Parties: HAYUTIN et al. v. RUDNICK. Civ. 18914.

Page 707

251 P.2d 707

115 Cal.App.2d 138

HAYUTIN et al. v. RUDNICK.

Civ. 18914.

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

Dec. 29, 1952.

Desser, Rau, Christensen & Hoffman, Adele I. Springer and Sheldon R. Caplow, Beverly Hills, for appellants.

Borton, Petrini & Conron and Harry M. Conron, Bakersfield, for respondent.

VALLEE, Justice.

Plaintiffs appeal from an order granting defendant's motion for change of the place of trial from the county of Los Angeles to the county of Kern.

The action was filed in the county of Los Angeles. Defendant was sued individually and as executor of the estate of Libbie Rudnick, his deceased wife. He was served in both capacities in the county of Kern. The complaint, containing six causes of action, is grounded on an oral contract of 'joint venture or partnership' alleged to have been made between plaintiffs and defendant Rudnick and his deceased wife, whereby plaintiffs, in return for services rendered, were to share with defendant and his deceased wife in certain profits which the latter were to obtain from a written contract made by them with third persons.

Defendant filed a motion for change of the place of trial to the county of Kern on (two grounds: 1) defendant at the time of the commencement of the action was, and still is, a resident of the county of Kern, and 2) Libbie Rudnick was a resident of the county of Kern, and her estate is now being probated in the county of Kern. Affidavits in support of the motion were made by defendant, an officer of a bank, and a neighbor residing in Bakersfield, who had known defendant for some thirty years. Counter-affidavits resisting the motion were filed on behalf of plaintiffs. A minute order of the court was entered granting the motion without specifying the grounds therefor. Two days later a written order was made granting the motion 'on the ground that Section 395.1 of the Code of Civil Procedure requires that the action be transferred to the county which has jurisdiction of the deceased defendant's estate.'

The order is sustainable on the ground that defendant was at the time of the commencement of the action, and still is, a resident of the county of Kern. The affidavits and counter-affidavits are conflicting. Those in support of defendant's motion state: 1) defendant's attorney has stated to him that he has a good and valid defense to plaintiffs' action; 2) defendant at the time of the commencement of the action and for some thirty years prior thereto was, and still is, a resident of the county of Kern and during that time maintained his home there; 3) the estate of defendant's deceased wife is being probated in the county of Kern; 4) defendant is registered to vote as a resident of the city of Bakersfield, county of Kern, and for many years last past has voted therein; 5) defendant did not, nor did his deceased wife, at any time enter into any oral or written joint venture or partnership agreement with plaintiff in Los Angeles County or in any other place. Under these circumstances, this court is bound by the same rule that controls where oral testimony is presented for review: When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and when there is a substantial conflict in the facts stated, the determination of the controverted facts by ...