Johnson v. Superior Court of Fresno County

• Decision Date: 11 February 1965
• Citation: 42 Cal.Rptr. 645,232 Cal.App.2d 212
• Parties: Kermit Ellsworth JOHNSON, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent, Alfred Sigmund OLSEN et al., Real Parties in Interest. Civ. 446.
• Court: California Court of Appeals Court of Appeals

Page 645

42 Cal.Rptr. 645

232 Cal.App.2d 212

Kermit Ellsworth JOHNSON, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent, Alfred Sigmund OLSEN et al., Real Parties in Interest.

Civ. 446.

District Court of Appeal, Fifth District, California.

Feb. 11, 1965.

Rehearing Denied March 8, 1965.

Dannemeyer, Gustaveson & Tuohey and Conrad G. Tuohey, Fullerton, for petitioner.

No appearance for respondent.

William A. Bloyd, Reedley, for real parties in interest.

RALPH M. BROWN, Justice.

Petitioner seeks a writ of mandate compelling the Superior Court to vacate and set aside its order denying petitioner's motion for change of venue from Fresno County to Orange County, and to grant such change.

The real parties in interest filed their complaint in Fresno County entitled 'Action for Breach of Contract.' Petitioner, as the defendant, filed a demurrer and moved for a change of venue on the sole ground that he resided and maintained his office for the transaction of business in Orange County, which is the proper court for the trial of this cause. To the motion was attached a declaration executed by the defendant in which he states that at the time of the commencement of the action he resided in Orange County. The plaintiffs filed a counteraffidavit averring that the complaint was one for breach of contract and that any language contained therein which sounds in tort goes only to the bad faith of the defendant in performance and does not purport to a state a cause of action. The counteraffidavit also averred that substantially all the witnesses in said action resided in Fresno County.

The trial court denied the motion for the change of venue and it is from this order that the petitioner filed his petition for a writ of mandate.

Although the counteraffidavit mentions convenience of witnesses, the trial court could not have based its order on that ground. The court will not entertain a motion for change of venue on the ground of convenience of witnesses when the defendant has not filed an answer, for the reason that until the issues are joined the court cannot determine what testimony will be material. (Pearson v. Superior Court, 199 Cal.App.2d 69, 75, 76, 18 Cal.Rptr. 578, and cases there cited.) For the same reason, a motion for change of venue cannot be defeated on the ground of convenience of witnesses until an answer is filed. In this case no answer was filed, but only a demurrer. Such an attempt to retain the venue as laid in an improper court for convenience of witnesses can be made only when an answer have been filed. (Rowland v. Bruton, 125 Cal.App. 697, 701, 14 P.2d 116; Gordon v. Perkins, 203 Cal. 183, 185, 263 P. 231.) Therefore, if the defendant accompanies his motion with a demurrer, but not an answer, the court cannot consider a motion to retain for convenience of witnesses, but must transfer the case to the proper court. (Gilman v. Nordin, 112 Cal.App.2d 788, 793, 247 P.2d 394; DeLong v. DeLong, 127 Cal.App.2d 373, 374, 273 P.2d 921.)

These rules being applicable, no purpose would be served by a discussion of the insufficiency of the counteraffidavit in that it fails to mention the names of witnesses, et cetera. Such lack has been held to be fatally defective. (Pearson v. Superior Court, supra, 199 Cal.App.2d 69, 78-79, 18 Cal.Rptr. 578.)

Thus it is clear that the order of denial was based solely on the ground of residence of defendant in Orange County.

Before proceeding further, it must be noted that the plaintiffs in their answer to the petition alleged that prior to the hearing on the motion for change of venue (but after the motion was filed), they filed, with permission of the court first had and obtained, an amended complaint eliminating the words objected to which charged the defendant with a certain state of mind at the time of the breach of contract. These are the words which defendant contends state a tort cause of action. It is the rule that after a motion for change of venue has been made the plaintiff may not amend his complaint by way of counteraffidavit on hearing of the motion. (Archer v. Superior Court, 202 Cal.App.2d 417, 420, 21 Cal.Rptr. 48.) The question of the nature of the action must be determined at the time of the hearing of a motion for a change of venue from allegations of the complaint which was on file at the time the motion was made and from the nature of a default judgment which might be rendered thereon, assuming the truth of the allegations. (Mettler v. Hedley, 170 Cal.App.2d 277, 280, 338 P.2d 489.) It is clear that petitioner defendant contends the complaint alleges a cause of action ex contractu and a cause of action ex delicto, though not separately stated, which he is entitled to have tried in the county of his residence. The plaintiffs, on the other hand, claim that the complaint alleges a single cause of action based on a contract made, to be performed, and partially performed, in the County of Fresno, which they are entitled to have tried there.

The first caused of action stated in the complaint identifies the plaintiff Olsen and the petitioner-defendant Johnson as licensed real estate brokers, and identifies one Yasugi Kubo as a licensed real estate salesman and the agent of defendant Johnson; it sets forth that the oral contract was made and entered into in Fresno County, that the contract arose out of negotiations whereby Kubo proposed to plaintiff that defendant Johnson had customers who were interested in acquiring real estate located in the San Joaquin Valley, that an oral agreement was made with Kubo acting for the petitioner in which the plaintiff agreed to disclose to Kubo leads to persons who might sell or lease any real property, and should any completed transactions result, the plaintiff would pay to the petitioner-defendant at least one-half of the commission. Among other things agreed to in addition to the division of commissions, was that the petitioner-defendant promised that plaintiff could represent to other brokers that the petitioner-defendant would deal with plaintiff alone and that he promised that he would not do any act or thing which would affect any lead from not resulting in a real estate transaction, that it was impliedly pliedly agreed that the oral agreement was revocable upon notice of either party, and that the defendant impliedly notified plaintiff of his intention to revoke said agreement. It is further alleged that the plaintiff and defendant negotiated numerous real estate transactions and split the commissions; that plaintiff allowed defendant to use plaintiff's office facilities, and disclosed details of leads and listings of real property available for sale or lease known to the plaintiff. From such information the plaintiff alleges that the petitioner and defendant and his agent 'highjacked' the leads to various properties and entered into certain lease agreements and received certain benefits to the damage of the plaintiffs in various sums.

The language in the complaint which gives rise to plaintiffs' present venue problem is as follows:

'That plaintiff is informed and believes and thereon alleges that defendant and his agent, intending to harass, annoy, persecute, injure and destroy and otherwise interfere with the due prosecution of plaintiff's real estate business and in violation of the terms and intention of said agreement, has knowingly, intentionally, and maliciously attempted to high-jack and procure listings from other leads and/or owners introduced to defendant by and through his agent, YASUGI KUBO, by plaintiff and associated real estate brokers, in violation of the terms of said agreement and have made insinuating remarks about plaintiffs' ability to conduct business to leads and/or owners of property in the San Joaquin Valley; that as a direct result of the unlawful, malicious, and wrongful conduct of said defendant and his agent, plaintiff's business reputation with all of the other associated brokers, leads, and owners of property he had listed has been greatly damaged and plaintiff has been deprived of the benefits of said contract and seeks damages against defendant for his loss as a direct and proximate result thereof in the sum of $30,000.00.'

The second cause of action, on behalf of the other plaintiff, Jack D. Bedrosian, incorporated by reference all of the allegations of the first cause of action and added that as a direct result, he had been damaged in the sum of $15,000.

In his prayer, plaintiff Olsen prayed judgment for damages in the sum of $16,000, and damages to his business reputation and business in the sum of $30,000; while the other plaintiff, Bedrosian, prayed judgment for damages in the sum of $15,000.

Petitioner's notice of motion for change of venue states only the ground that petitioner resides in, and has his place of busienss in, Orange County. Although no reference is made in the notice to the nature of the action, it is clear from the points and authorities attached thereto that petitioner's position is that the complaint contains a cause of action for unlawful, malicious and wrongful conduct resulting in damage to the...