J. C. Millett Co. v. Latchford-Marble Glass Co.

• Decision Date: 20 January 1959
• Docket Number: LATCHFORD-MARBLE
• Citation: 167 Cal.App.2d 218,334 P.2d 72
• Parties: J. C. MILLETT CO., a corporation, et al., Plaintiffs and Respondents, v.GLASS CO., a corporation, et al., Defendants and Appellants. Civ. 23247.
• Court: California Court of Appeals Court of Appeals

Page 72

334 P.2d 72

167 Cal.App.2d 218

J. C. MILLETT CO., a corporation, et al., Plaintiffs and Respondents, v. LATCHFORD-MARBLE GLASS CO., a corporation, et al., Defendants and Appellants.

Civ. 23247.

District Court of Appeal, Second District, Division 2, California.

Jan. 20, 1959.

Dryer, Hails, Burris & Lagerlof and H. Melvin Swift, Jr., Los Angeles, for appellants.

J. Albert Hutchinson, Leon A. Blum, San Francisco, for respondents.

FOX, Presiding Justice.

Defendants appeal from the order granting plaintiffs' motion to change the place of trial from Los Angeles County to the City and County of San Francisco. ¹

Plaintiffs commenced this action for breach of contract and for an accounting in San Francisco. Defendants moved for a change of venue to Los Angeles since the individual defendants resided there. The superior court of the City and County of San Francisco denied defendants' motion. On appeal the order was reversed ² and the action was then transferred to Los Angeles. Thereafter, plaintiffs made a motion to change the place of trial to San Francisco for the convenience of witnesses and to promote the ends of justice. Said motion was supported by an original and supplemental affidavit of Leon A. Blum, attorney for the plaintiffs. In substance, Mr. Blum deposed as follows:

'The First Cause of Action, as stated in paragraph XI thereof, alleges that defendants (who had previously employed plaintiffs as their agents for the sale and distribution of glass bottles and other goods in Northern California, and thereafter--and while their agreement with plaintiffs was still in effect, organized and incorporated subsidiary corporations to compete with plaintiffs in that same business) 'with the intent of competing unfairly with plaintiffs, enticed several employees of plaintiffs to leave their respective employment with plaintiffs and to accept employment with the said subsidiary corporation defendants'.

'The employees above referred to include: Frank Toso, Jr., who is now the general manager of the Latchford Package Co., one of the defendants; Kenneth H. Hoffman, who is now office manager of the Latchford Package Co., one of the defendants; Clarence Coulter and Edward H. Norman.

'All of said employees are employed by the defendant corporations in the City and County of San Francisco, State of California, and reside in said City and County or in the immediate vicinity thereof, and will be needed as witnesses at the trial of this action to prove the allegations in paragraph XI of the First Cause of Action in said Amended Complaint.

'All of said employees, being currently employed by defendants, will have to be subpoenaed and examined as adverse witnesses under the provisions of section 2055 of the Code of Civil Procedure, and cannot be compelled to attend the trial at a place more than 150 miles out of the county in which they reside under the provisions of section 1989 of the Code of Civil Procedure.

'The Second Cause of Action of said Amended Complaint, paragraph II thereof, alleges that (after so enticing plaintiffs' said former employees) 'all of the said defendants, thru the instrumentality of said subsidiary corporation defendants and the plaintiffs' said former employees, and in violation of business ethics and the rights of plaintiffs, did offer for sale and sold and made deliveries to customers of plaintiffs in Northern California--in direct competition with plaintiffs and without plaintiffs' consent, wine, liquor and beverage bottles, and continued to do so until the expiration of the said written agreement on December 31, 1952.'

'The customers of plaintiffs to whom such sales and deliveries are alleged to have been made, include but are not limited to the following:

Regal Amber Brewing Co. currently located at 3250-20th St., S.F.

Italian Swiss Colony currently located at 615-4th St., S.F.

Haas Bros. currently located at 2400 Army St., S.F.

Lewis Westco Co. currently located at 222 Front St., S.F.

Alexander-Balart Co. currently located at 455 Allan St., S.F.

California Wine Co. currently located at 221-14th St., S.F.

Lucky Lager Brewing Co. currently located at 2061 Newhall S.F.

Pepsi-Cola Bottling Co. currently located at 640 Valencia S.F.

'The testimony of said customers, and of several other customers in Northern California will be required to prove the allegations of the Second Cause of Action of said complaint, and to prove the dates, amounts and circumstances under which the said alleged sales and deliveries were made.

'Said customers cannot be compelled to attend the trial at a place more than 150 miles out of the county in which they reside or have a place of business according to the provisions of section 1989 of the Code of Civil Procedure.'

The above was supplemented by Mr. Blum to include the following: 'Supplementing paragraph I of my said affidavit with particular reference to former employees of plaintiffs who have been employed by defendants or one of them, Frank Toso, Jr., Kenneth H. Hoffman, Clarence Coulter and Edward H. Norman, each of them presently employed by the defendants and formerly employed by the plaintiffs, should testify as to the following facts within their own knowledge and recollection: (a) how long each of them had been employed by plaintiffs during and prior to year 1952; (b) the acquaintance of each of them with each of plaintiffs' customers and customers' employees, purchasing practices, needs and preferences and the information and knowledge of each of them of plaintiffs' customers' lists and lists of preferred customers; (c) the date when each of them left the employ of the plaintiffs; (d) the date when, and circumstances under which, each of them became employed by defendants; and (e) what each of them did or was requested to do by the defendants during the period from June 19, 1952 to December 31, 1952, and the information and acquaintance with plaintiffs' business and relationship with plaintiffs' customers used and employed in defendant's behalf, which tended to be a benefit to defendants and a detriment to the plaintiffs; and (f) any other related matters which will tend to establish a course of conduct and conspiracy on the part of the defendants as alleged in paragraph XI of the Amended Complaint.

'Supplementing paragraph II of my said affidavit with particular reference to former customers of plaintiffs Regal Amber Brewing Co., Italian Swiss Colony, Haas Bros., Lewis Westco Co., Alexander-Balart Co., California Wine Co., Lucky Lager Brewing Co., Pepsi-Cola Bottling Co., through their respective officers, employees or purchasing agents, should testify and produce records of the following facts: (a) as to any conversation with and solicitation by defendants or defendants' agents or employees relating to making future purchases from defendants instead of from plaintiffs; (b) dates and amounts of purchases made by each of said business firms from defendants pursuant to such solicitation (if any) between June 19, 1952 and December 31, 1952 when plaintiffs' contract with the defendants expires; (c) whether such solicitation on behalf of defendants, if any there was, was made by a former employee of plaintiffs, who had accepted employment with defendants during said period; and (d) similar and relevant matter tending to show a course of conduct and conspiracy on the part of the defendants, as alleged in paragraph II of the Second Cause of Action of the Amended Complaint; that each of said business organizations last above named is a substantial business organization employing corporate executives, managing and purchasing agents, accountants, receiving and shipping agents, and billing clerks engaged in their employers' dealings with plaintiffs and with defendants and the identity of each of such employees of said organizations and the scope of the testimony of each cannot be fully anticipated at this date.'

Section 397(3) of the Code of Civil Procedure empowers a trial court to change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change. A change of venue made pursuant to this section lies essentially within the sound discretion of the trial judge and his ruling will not be disturbed unless it is made to appear as a matter of law that there has been an abuse of that discretion. Wrin v. Ohlandt, 213 Cal. 158, 159, 1 P.2d 991; Scott v. Stuart, 190 Cal. 526, 527, 213 P. 947; Edwards v. Pierson, 156 Cal.App.2d 72, 76, 318 P.2d 789; Chaffin Const. Co. v. Maleville Bros., 155 Cal.App.2d 660, 662-663, 318 P.2d 196. As stated in Wrin v. Ohlandt, supra, 213 Cal. at page 159, 1 P.2d at page 991, '[i]t is well settled that a motion for a change of venue grounded upon the convenience of witnesses rests largely in the discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing of its abuse.'

The question presented on this appeal is whether the trial court abused its discretion, that is, whether it exceeded 'the bounds of reason,--all the circumstances before it being considered.' Sharon v. Sharon, 75 Cal. 1, 48, 16 P. 345, 366; In re Guardianship of Kiles, 80 Cal.App.2d 751, 755, 182 P.2d 639.

Defendants anchor their argument that the trial court abused its discretion in granting plaintiffs' motion upon asserted deficiencies in the affidavits filed in support of the motion. It is to an examination of the affidavits that attention will now be directed.

Defendants first argue that an affidavit in support of a motion for change of venue which consists of conclusions and hearsay statements should be disregarded and cannot support an order based thereon. While it is true that an affidavit wholly devoid of the probative facts necessary to be stated is insufficient (see Baird v. Smith, 21 Cal.App.2d 221, 224, 68 P.2d 979; Pacific States Corp v. Shepardson, 105 Cal.App. 747, 751, 288 P. 714), it is obvious that more than mere conclusions were...