Mosby v. Superior Court

• Decision Date: 18 November 1974
• Citation: 117 Cal.Rptr. 588,43 Cal.App.3d 219
• Court: California Court of Appeals Court of Appeals
• Parties: John M. MOSBY and Marilyn J. Mosby, Petitioners, v. SUPERIOR COURT FOR the COUNTY OF SHASTA, State of California, Respondent; Walter J. LUCAS, Real Party in Interest. Civ. 14620.

Page 588

117 Cal.Rptr. 588

43 Cal.App.3d 219

John M. MOSBY and Marilyn J. Mosby, Petitioners, v. SUPERIOR COURT FOR the COUNTY OF SHASTA, State of California, Respondent Walter J. LUCAS, Real Party in Interest.

Civ. 14620.

Court of Appeal, Third District, California.

Nov. 18, 1974.

Rehearing Denied Dec. 5, 1974.

Hearing Denied Feb. 13, 1975.

Lewitt, Hayden & Hackman by Glenn M. Hayden, Encino, for petitioners.

J. K. Pickering, Redding, for real party in interest.

PUGLIA, Associate Justice.

The motion of petitioners, John M. and Marilyn J. Mosby (hereinafter 'defendants'), for change of venue was denied by the trial court. They apply herein for a peremptory writ of mandate directing the superior court to set aside the denial of the motion and to order the place of trial changed to Santa Barbara County, the county of defendants' residence. We issued an order to show cause and stayed further proceedings in the trial court pending further order of this court.

The real party in interest, Walter J. Lucas (hereinafter 'plaintiff'), filed a verified complaint in the Superior Court of Shasta County setting forth four causes of action and naming the defendants individually and doing business as Mosby Ranches and Cottonwood Freight Lines. There were two other named defendants, 'Mosby Ranches, a partnership' and 'Cottonwood Freight Lines, a partnership.' Plaintiff seeks declaratory relief, injunctive relief, appointment of a receiver, an accounting and damages. The causes of action all rise from a contractual relationship between plaintiff and the defendants wherein the plaintiff, for compensation, undertook to supervise, control and direct certain of defendants' business enterprises consisting of cattle ranches and a hauling company. It is indisputable that the causes of action are all transitory.

Generally the venue of a transitory action against a natural person is governed by Code of Civil Procedure section 395, ¹ the text of which, insofar as pertinent hereto is set out in the margin. ² It will be observed that the statute creates a preference for trial in the county of a defendant's residence. A plaintiff's right to trial in some other county is an exception to the general rule and therefore requires express statutory justification. (Kaluzok v. Brisson (1946) 27 Cal.2d 760, 763, 167 P.2d 481; Cal-Ore Lumber Sales v. Russell (1955) 133 Cal.App.2d 296, 301, 284 P.2d 179; Deas v. Lido Lumber Co. (1955) 132 Cal.App.2d 402, 282 P.2d 90.)

The statute provides exceptions for actions 'founded on' a contract. In those actions the proper place of trial may be, in addition to defendant's residence, the county where the contract was entered into or the county in which defendant's obligation is to be performed, except that the county in which the contract was entered into is deemed to be the place of performance unless there is a special contract in writing to the contrary.

The agreement between the parties herein is in writing. It does not appear from the complaint, the agreement itself or the declarations submitted by the parties that the contract was entered into in Shasta County. Furthermore, the only writing referring to place of performance is in the agreement itself and relates to Plaintiff's performance under the contract. The place of performance exception in section 395 refers exclusively to the place where Defendant's obligation under the contract is to be performed, concerning which no express provision has been made in the instant case.

While plaintiff points to certain of defendants' obligations under the contract that inferentially are to be performed in Shasta County, it is clear that a 'special contract in writing' as contemplated by section 395 is one whose provisions are express and not dependent upon implication. (Caffrey v. Tilton (1952) 38 Cal.2d 371, 374, 240 P.2d 273.) Thus neither statutory exception to the preferred place of trial for a contract action against an individual defendant is applicable here. Accordingly insofar as the venue of this action is governed by the presence as parties of the individual defendants, the proper county for trial is the residence of the individual defendants or one of them.

The ruling of the trial court, however, did not turn upon the status of the individual defendants. Rather, the determinant in the trial court's decision was its characterization of Cottonwood Freight Lines as an unincorporated association and thus an entity whose relationship to the action could and did furnish the basis to lay venue. ³

Generally, the venue of an action against an unincorporated business association is governed by sections 395.2 and 395.5 (formerly § 16, art. XII, Cal.Const.). ⁴

The alternative provided by section 395.5 to lay venue in the county of the principal place of business applies only to corporations and not to unincorporated associations. (Juneau etc. Corp. v. Intl. Longshoremen (1951) 37 Cal.2d 760, 763, 235 P.2d 607.) The remaining bases for fixing venue contained in section 395.5, i.e., where the contract is made or to be performed or where the obligation or liability arises or the breach occurs, are in terms equally applicable to corporations and unincorporated associations alike. (Juneau etc. Corp. v. Intl. Longshoremen, supra, 37 Cal.2d at p. 763, 235 P.2d 607.)

As already noted, venue in Shasta County cannot be sustained on the basis that the contract was made there. Furthermore, it cannot be ascertained from the record in what county the obligation or liability arose or the alleged breach occurred.

The remaining ground in section 395.5 for fixing venue in an action against an unincorporated association, i.e., where the contract is to be performed, furnished the basis for the trial court's order denying the defendants' motion to change venue. The trial court was of the view that, unlike section 395, in which performance as a basis for venue is literally limited to defendant's performance, the cognate provision of section 395.5 applies equally to performance by a defendant Or a plaintiff. The contract between the parties expressly requires substantial performance by plaintiff in Shasta County. The trial court ruled such requirement a sufficient basis to support venue in Shasta County. (See, however, E. A. Hosmer & Co. v. Shand & Jurs Co. (1957) 154 Cal.App.2d 636, 316 P.2d 1012; Union Oil of Cal. v. Basalt Rock Co., Inc. (1939) 30 Cal.App.2d 317, 86 P.2d 139; Chadbourn, Grossman, Van Alstyne, California Pleading (1961) § 334, pp. 266--267.)

Assuming the analysis of the trial court is correct, two conflicting venue provisions are concurrently applicable to this case. The venue provisions applicable to individual defendants (§ 395) when applied to the circumstances of this case provide that only one county, that of an individual defendant's residence, is the proper county for trial. On the other hand, the venue provisions applicable to actions against unincorporated associations (§ 395.5) when applied to the facts of this case support the place of performance as a proper county for trial. As between these two conflicting venue provisions it has long been settled that preference will be accorded to the right of an individual defendant to trial in the county of his residence. When a plaintiff brings an action against several defendants, both individual and corporate, in a county which is neither the residence nor the principal palce of business of any defendant, an individual defendant has a right upon proper showing to a change of venue to the county of his residence even though venue as initially laid may otherwise be justifiable upon one or the four alternative grounds provided by section 395.5 in actions against corporations. (G. & S. Co. v. M. & H.F.C. Co. (1895) 107 Cal. 378, 381, 40 P. 495; Brady v. Times-Mirror Co. (1895) 106 Cal. 56, 58, 39 P. 209; Rosen v. Kessler (1956) 145 Cal.App.2d 676, 681, 303 P.2d 110; J. C. Millett Co. v. Latchford-Marble Glass Co. (1956) 144 Cal.App.2d 838, 840, 301 P.2d 914; Pac. Bal Industries v. Northern Timber (1953) 118 Cal.App.2d 815, 828, 259 P.2d 465; see also United Pac. Ins. Co. v. Superior Court (1967) 254 Cal.App.2d 897, 899, 62 Cal.Rptr. 737; Walker v. Wells Fargo Bk. & U.T. Co. (1937) 24 Cal.App.2d 220, 74 P.2d 849.) The foregoing rule applies with equal force where, as here, the business entity defendant is not a corporation but an unincorporated association. (Nelson v. East Side Grocery Co. (1915) 26 Cal.App. 344, 348, 146 P. 1055.)

However, where individuals are properly joined as defendants with an unincorporated association and venue is laid in the county of residence of the association, the preference for residence venue is satisfied and an individual defendant may not of right secure a change of venue to the county of his residence. (McClung v. Watt (1922) 190 Cal. 155, 157--158, 211 P. 17.) The principal place of business of an unincorporated association is the county of its residence for venue purposes. (Id. at p. 158, 211 P. 17; §§ 395.2 and 395.5.) Accordingly, if none of the defendants in the instant action are residents of Shasta County, defendants are entitled, upon a proper showing, to a change of venue to the county of their residence notwithstanding that the place of plaintiff's performance under the contract was in Shasta County, assuming, for present purposes, that the place of Plaintiff's performance in fact provides a basis to lay venue under section 395.5.

We now consider a contention which, upon the record before us, does not appear to have been presented to the trial court. The defendants contend that Mosby Ranches and Cottonwood Freight Lines are not jural entities, that they are not unincorporated associations within the meaning of the venue provisions of the Code of Civil Procedure and, that consequently, the choice of proper county for trial is controlled exclusively by the status of the individual defendants without reference to the fact that Mosby Ranches and...