Massae v. Superior Court

• Decision Date: 30 April 1981
• Court: California Court of Appeals Court of Appeals
• Parties: Charles E. MASSAE et al., Petitioners, v. SUPERIOR COURT, COUNTY OF HUMBOLDT, Respondent, Raoul J. LeCLERC, Robert V. Blade et al., Real Parties in Interest. Civ. 51014.

Page 527

173 Cal.Rptr. 527

118 Cal.App.3d 527

Charles E. MASSAE et al., Petitioners, v. SUPERIOR COURT, COUNTY OF HUMBOLDT, Respondent, Raoul J. LeCLERC, Robert V. Blade et al., Real Parties in Interest.

Civ. 51014.

Court of Appeal, First District, Division 4, California.

April 30, 1981.

Rehearing Denied May 21, 1981.

Hearing Denied July 3, 1981.

[118 Cal.App.3d 529]

Thomas K. McGuire, Sacramento, for petitioners

Robert V. Blade, Blade & LeClerc, Oroville, Mitchell, Dedekam & Angell, Eureka, for real parties in interest.

CALDECOTT, Presiding Justice.

Petitioners Charles E. and Bernita E. Massae seek mandate (under Code Civ.Proc., § 400) to compel the Humboldt County Superior Court to vacate its order changing venue and to enter a new order denying a change of venue. This court issued the alternative writ.

The issue is whether the Massaes' action is "local" or "transitory" for venue purposes. If it is local, it should have been retained in Humboldt County. If it is transitory, the trial court's order was proper. (Cf. generally, 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 416, p. 1248 et seq.)

The Massaes filed their complaint in Humboldt County. They take the position that the action would determine a right to Humboldt County real property and therefore is local to and should be retained in [118 Cal.App.3d 530] Humboldt County under Code of Civil Procedure section 392, subdivision (1), which provides: "Subject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the real property, which is the subject of the action, or some part thereof, is situated, is the proper county for the trial of the following actions: (P) (a) For the recovery of real property, or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property; (P) (c) For the foreclosure of all liens and mortgages on real property."

The primary real parties in interest, attorneys Blade and LeClerc, defendants in the trial court, argue that the Massaes' action "mixes" local and transitory elements and therefore that Blade and LeClerc are entitled to have venue changed to their place of residence, Butte County. California law has long favored venue at defendant's residence. (Cf. 2 Witkin, op. cit. supra, § 444 (p. 1272), § 498 (p. 1320); cf. also Code Civ.Proc., § 395, subd. (a).) Accordingly, Blade and LeClerc (joined by a corporate defendant not directly involved in the venue issue) moved for a change of venue to Butte County on the ground that the Humboldt County Superior Court was "not the proper court" under the venue statutes. (Code Civ.Proc., §§ 396b, 397, subd. 1.)

The orthodox rules for analysis of local-transitory venue issues are (1) that whether a cause of action is local or transitory is to be determined on the basis of the relief sought, (2) that where both local and transitory relief are sought on the basis of a single cause of action the cause of action will be characterized on the basis of the

relief primarily sought (the "main relief rule"), (3) that where there is more than one cause of action and both local and transitory causes have been identified, choice of venue will be made on the basis of various "mixed action" rules, and (4) that for these purposes causes of action are to be identified and distinguished, and relief characterized, from the complaint as it stands at the time of the motion for change of venue. (Cf. 2 Witkin, op. cit. supra, §§ 423-427 (pp. 1255-1258), §§ 497-499 (pp. 1318-1323).) The burden of showing facts to justify a change of venue is on the moving defendant (cf. 2 Witkin, op. cit. supra, § 522, p. 1342) inasmuch as "(t)he plaintiff's choice of venue is presumptively correct." (Thielen v. Superior Court (1963) 219 Cal.App.2d 217, 218, 33 Cal.Rptr. 1.) But once the defendant has shown, in support of his motion, that he lives in another county, "(t)he policy of the law favors the right of trial at the defendant's residence. Accordingly it is said that [118 Cal.App.3d 531] the complaint will be strictly construed against the plaintiff who seeks to lay the venue in a place other than the defendant's residence ...." (2 Witkin, op. cit. supra, § 426, p. 1257.)

In this action the trial court concluded that "the action is personal and not local and the proper jurisdiction is the county of residence of the defendant," and ordered venue changed to Butte County. "After the judge has ruled, the familiar principles of appellate review apply ...." (2 Witkin, op. cit. supra, § 531, pp. 1351-1352.) There is no evidentiary conflict: the issue for this court is purely one of law.

THE COMPLAINT

In respects relevant to the venue issue, the Massaes' complaint alleges: Blade has been the Massaes' lawyer; LeClerc is Blade's law partner. The Massaes and the Blades own real property in Humboldt County, each as to an undivided half interest. The Massaes were indebted to Blade for legal services and for advances made and to be made in connection with a joint business venture, and the Massaes and Blade entered into a written agreement by which the Massaes acknowledged their various indebtednesses to Blade and agreed to assign a preexisting note, and a deed of trust on the Humboldt County property, to Blade and to execute a new deed of trust on the Humboldt County property in Blade's favor. It is the new deed of trust which is in issue. It was executed by the Massaes on the day they signed the written agreement, on a printed form which recites that the trust conveyance is made "with power of sale" and which contains (by incorporation from a fictitious trust deed) a standard power of sale clause. The new deed of trust also recites that it was given to secure (among other things) "payment of the indebtedness evidenced by written agreement of even date herewith." The written agreement contains a statement (written by Blade) that "It is understood that the (Humboldt County) property will not be sold without your prior approval as to price and terms."

Three years later Blade substituted LeClerc for the original trustee under the deed of trust and recorded a notice of default and election to sell the Humboldt County real property under the deed of trust, alleging failure to pay expenses and fees under the written agreement. The Massaes advised LeClerc that the written agreement precluded sale of the property without prior approval; ten days later LeClerc executed a notice of trustee's sale.

The Massaes pray for (1) a declaration that they have a right to give or withhold approval of the price or terms of any proposed sale, (2) reformation of the deed of trust to rescind the standard power of sale provision it contains, (3) a temporary restraining order and injunctions to prevent a sale without prior approval, and (4) damages, costs, and omnibus relief.

In generalized form the dispositive question here is whether an action to reform a standard California deed of trust to delete its power-of-sale clause is an action for "the determination in any form, of (a) right or interest (in real property)" within the meaning of Code of Civil Procedure section 392, subdivision (1). It is necessary first to deal with two spurious issues raised by the parties.

Spurious issues

1. Mixed actions

Blade and LeClerc seem prepared to concede that an action to reform the deed of trust would be local, but that in this complaint the Massaes seek to reform not only the deed of trust but also the written agreement, "to not only delete the language 'with power of sale' contained in the deed of trust, but to include in both documents language which would provide that the beneficiary may not cause said deed of trust to be enforced, either judicially or non-judicially, until the death of plaintiffs and then only if said real property is sold by the owners thereof." To this premise Blade and LeClerc would apply several California cases which have held that an action to reform the secured obligation as well as the security instrument is transitory. (Howe v. Tucker (1933) 219 Cal. 193, 25 P.2d 832; Jacobs v. C. H. Smith Lumber Co. (1928) 206 Cal. 128, 273 P. 571; Nelson v. Crocker Nat. Bank (1975) 51 Cal.App.3d 536, 540-541, 124 Cal.Rptr. 229; Thielen v. Superior Court, supra, 219 Cal.App.2d 217, 33 Cal.Rptr. 1.) Their position is evocative of the long-established mixed action rule that: "The plaintiff cannot, by joining a local with a transitory cause, deprive the defendant of his normal right to trial of the transitory cause at the county of his residence. The policy in favor of residence venue in transitory actions is stronger than that in favor of local venue in real actions. Hence, if the two causes are to be tried together, and the action is filed where the land is located, the defendant may insist on a change of venue to his residence." (2 Witkin, op. cit. supra, § 498, p. 1320; cf. Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 918, 106 Cal.Rptr. 696.)

The Massaes challenge this position on the strength of a case which construes a recent amendment to Code of Civil Procedure section 395 (the defendant's residence provision) to mean "that section 395 is to be applied only when there is no other applicable venue provision." (Delgado v. Superior Court (1977) 74 Cal.App.3d 560, 564, 141 Cal.Rptr. 528; cf. also Central Contra Costa Sanitary Dist. v. Superior Court (1978) 84 Cal.App.3d 702, 705-706, 148 Cal.Rptr. 801.) Although Delgado deals directly with a conflict between section 395 and Code of Civil Procedure section 394, characterized by Witkin as "a removal or change of venue statute, which comes into operation only where the action is filed in a county which is proper under the ordinary venue rules" (2 Witkin, op. cit. supra, § 492, p. 1315), Delgado may ultimately have substantial impact on the orthodoxy that in a mixed action a transitory cause will dominate a local cause.

But neither mixed-action...