Holstein v. Superior Court for San Diego County

Decision Date19 August 1969
CourtCalifornia Court of Appeals Court of Appeals
PartiesGeorge M. HOLSTEIN, III; William Holstein; Holstein Enterprises, Inc.; and B & H Properties, Inc., Petitioners, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SAN DIEGO, Respondent; KEARNY VILLA CONSTRUCTION COMPANY, Inc., Real Party in Interest. Civ. 9717.
OPINION

COUGHLIN, Associate Justice.

Petitioners are defendants in a complaint filed in the Superior Court of San Diego County by Kearny Villa Construction Company, Inc., Real Party in Interest, as plaintiff; moved the Superior Court for a change of venue to Orange County upon the ground each of them is a resident of that county; and on denial of their motion, petitioned this court for a writ of mandate directing the Superior Court to transfer the action as requested.

The complaint purports to state two causes of action. In the first thereof the plaintiff therein, i.e., Real Party in Interest in this proceeding, seeks to recover the amount of an indebtedness which it claims the defendants therein, i.e., petitioners in this proceeding, owe Cabrillo Palisades B Inc., and allege a money judgment was entered in its favor against Cabrillo Palisades B Inc., by the Superior Court of San Diego County; defendants are each indebted to Cabrillo Palisades B Inc., in a sum in excess of $5000; and it 'has satisfied all of the substantive and procedural prerequisites to bringing an action under Section 720 of the Code of Civil Procedure'.

In the second cause of action the plaintiff seeks to include the defendants as judgment debtors in the judgment against Cabrillo Palisades B Inc., and also in another judgment by the Superior Court of San Diego County in favor of plaintiff against Cabrillo Palisades A Inc., on the theory defendants and the judgment debtors were the same legal entity.

Each of the defendants, petitioners herein, at all pertinent times was a resident of the County of Orange.

An action by a judgment creditor against a person allegedly indebted to the judgment debtor to recover the amount of the debt, where the person allegedly owing the debt denies the indebtedness, is an action in the nature of a creditor's bill; is an equitable proceeding; is independent of the action in which the judgment was obtained; and, although recognized in Section 720 of the Code of Civil Procedure, is not a part of the statutory proceedings supplemental to execution. (Wulfjen v. Dolton, 24 Cal.2d 878, 889, 151 P.2d 840; Bond v. Bulgheroni, 215 Cal. 7, 9--11, 8 P.2d 130; Deering & Co. v. Richardson-Kimball Co., 109 Cal. 73, 79, 82--83, 41 P. 801; Woodcock v. Petrol Corp., 48 Cal.App.2d 652, 656, 120 P.2d 889; Booge v. First Trust & Sav.Bank, 46 Cal.App.2d Supp., 879, 881--883, 116 P.2d 503; see also Rapp v. Whittier, 113 Cal. 429, 431, 45 P. 703.)

Under the statutorily prescribed general rule (Code Civ.Proc. § 395, subd. (1)), a defendant, upon demand, is entitled to have an action tried in the county of his residence unless the plaintiff, by his complaint, establishes his case is within a statutory exception to the general rule. (Kaluzok v. Brisson, 27 Cal.2d 760, 763--764, 167 P.2d 481, 163 A.L.R. 1308; Johnson v. Superior Court, 232 Cal.App.2d 212, 215, 42 Cal.Rptr. 645; Claycomb v. Caronna, 113 Cal.App.2d 561, 564, 248 P.2d 779.)

There is nothing in the complaint under consideration in this proceeding which indicates the County of San Diego is the proper place for trial of the first cause of action.

Where a change of venue should be granted as to one cause of action in a complaint, it should be granted as to the whole complaint. (Johnson v. Superior Court, supra, 232 Cal.App.2d 212, 217, 42 Cal.Rptr. 645.)

Under the law and facts as stated the action in question should be transferred to the County of Orange.

The Real Party in Interest's contention the first cause of action seeks enforcement of the judgment by the Superior Court of San Diego County and for this...

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6 cases
  • Brown v. Superior Court
    • United States
    • California Supreme Court
    • December 6, 1984
    ...763-764, 167 P.2d 481; Mosby v. Superior Court, supra, 43 Cal.App.3d at pp. 223-224, 117 Cal.Rptr. 588; Holstein v. Superior Court (1969) 275 Cal.App.2d 708, 710, 80 Cal.Rptr. 301.) Section 395 codifies this rule and provides that the trial of the action shall be in the county of the defend......
  • People v. Clauson
    • United States
    • California Court of Appeals Court of Appeals
    • August 19, 1969
    ... ... Maynard John CLAUSON, Defendant and Respondent ... Court of Appeal, Third District, California ... Aug. 19, 1969 ... time was available between his arraignment in the superior court on May 10, 1968, and the trial on July 8 for ... ...
  • Mitchell v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • November 16, 1972
    ...When such an action is filed, it is a proceeding separate and apart from supplemental proceedings. (Holstein v. Superior Court, 275 Cal.App.2d 708, 710--711, 80 Cal.Rptr. 301 (1969).) Pending the filing of such an action, the court is authorized to enjoin the purported debtor of the judgmen......
  • Morrison v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • January 8, 1980
    ... ... 169 ... 100 Cal.App.3d 852 ... Gary MORRISON, Petitioner, ... SUPERIOR COURT OF ORANGE COUNTY, Respondent; ... Benjamin MEARS, a Minor, etc., et al., Real Parties in Interest ... Civ. 21384 ... Superior Court (1965) 232 Cal.App.2d 212, 217, 42 Cal.Rptr. 645, 649; Holstein v. Superior ... Court (1969) 275 Cal.App.2d 708, 710, 80 Cal.Rptr. 301.) ... ...
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