Nanny v. Ruby Lighting Corp.
| Citation | 108 Cal.App.2d 856,239 P.2d 885 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 29 January 1952 |
| Parties | NANNY v. RUBY LIGHTING CORP. Civ. 14785. |
Mueller & McLeod, San Francisco, for appellant.
Dinkelspiel & Dinkelspiel, San Francisco, (Harold A. Block, San Francisco, of counsel), Knight, Gitelson, Ashton & Hagenbaugh, Los Angeles, (Alfred Gitelson, Los Angeles, of counsel), for respondent.
This is an appeal from an order granting a motion for change of venue.
The action was filed in San Francisco. The complaint fails to state the principal or any place of business of the corporate defendant, and fails to allege where the contract was made, where it was to be performed, where the obligation or liability arose, or where the breach occurred. If the defendant's principal place of business was other than San Francisco, it is quite apparent that either under Article XII, section 16 of the Constitution, or under the provisions of section 395 of the Code of Civil Procedure () the defendant, upon taking proper steps, was entitled to a change of place of trial.
The steps required to be taken by a defendant desiring a change of venue are prescribed by section 396b of the Code of Civil Procedure. It provides, in part: 'Except as otherwise provided in section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under the provisions of this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he answers or demurs, files with the clerk * * * an affidavit of merits and notice of motion for an order transferring the action or proceeding to the proper court * * *.'
The record shows that defendant demurred and filed a notice of motion for an order for a change of venue, predicated on the allegations that if any contract was entered into between the parties it was entered into in Los Angeles County; that any obligation arising out of said contract arose in that county; that defendant's principal and only place of business is Los Angeles County; that the convenience of witnesses requires a change of place of trial, and that the court designated in the complaint is not the proper court for the trial of the action. This notice was supported by two affidavits. It is conceded that neither affidavit constituted a proper affidavit of merits, and that no such proper affidavit as required by the section was ever filed in the trial court.
The first affidavit was filed by the attorney for defendant. It avers that he, the attorney, has caused investigation to be made of the matters alleged in plaintiff's complaint with respect to the issues raised by the complaint, which investigation disclosed that five witnesses, all residents of Los Angeles, are necessary and material witnesses for defendant; that by these witnesses affiant expects to prove certain facts which are set forth and which, if true, show no cause of action; that all the records of defendant are in Los Angeles; that no witness proposed to be called is a resident of San Francisco. There is no averment in this affidavit that defendant's principal place of business is Los Angeles. This affidavit seems to be in support of a plea for a change of venue on the ground of convenience of witnesses, although it hints at an affidavit of merits by the attorney. The motion for change of venue based upon convenience of witnesses, here made at the time of demurring, was probably premature prior to the filing of the answer, because until then the issues to be tried have not been fixed. Cook v. Pendergast, 61 Cal. 72; Armstrong v. Superior Court, 63 Cal. 410; Wong Fung Hing v. San Francisco Relief & Red Cross Funds, 15 Cal.App. 537, 115 P. 331; Pascoe v. Baker, 158 Cal. 232, 110 P. 815; Carruthers v. Crown Products Co., 89 Cal.App.2d 326, 200 P.2d 819.
The second affidavit is by Ben Ruby who avers that he is president of defendant; that the corporation maintains its principal and sole place of business in Los Angeles; that all records of the corporation are maintained there; that if any contract existed between the parties it was entered into in Los Angeles while plaintiff was a resident of that county; and that there does not exist, nor ever did exist, any special contract in writing between plaintiff and defendant relating to the place of performance. This, of course, did not constitute an affidavit of merits.
No counter-affidavits were filed, nor was any objection made in the trial court to the failure to file a proper affidavit of merits. The court granted the motion for a change of venue to Los Angeles County. Plaintiff appeals.
On this appeal plaintiff's main contention is that, because no proper affidavit of merits was filed, defendant waived, under the provisions of section 396b of the Code of Civil Procedure above quoted, its right to have the place of trial changed to Los Angeles County. There can be no doubt that section 396b requires the filing of an affidavit of merits and that, had the trial court denied the motion for change of venue, the failure to file a proper affidavit of merits would, of itself, have been sufficient to sustain the ruling. Fernandez v. Fernandez, 11 Cal.2d 568, 81 P.2d 913; Noland v. Noland, 52 Cal.App.2d 58, 125 P.2d 847; Rowe v. Policy Holders Life Ins. Ass'n, 131 Cal.App. 339, 21 P.2d 443; Mono Power Co. v. City of Los Angeles, 33 Cal.App. 675, 166 P. 387; Wells v. Wells, 74 Cal.App.2d 158, 168 P.2d 73.
These cases, however, do not contain the complete answer to the problem here presented. Defendant's counsel states that he has examined the record in all of these cases and that in all of them objection to the failure to file a proper affidavit of merits was made in the trial court. Plaintiff does not challenge this statement. This is important because had such an objection been made in the instant case, the defendant could have amended the defective affidavits to make them conform to the legal requirements. Jaques v. Owens, 18 Cal.App. 114, 122 P. 430; Palmer & Rey v. Barclay, 92 Cal. 199, 28 P. 226; Lundy v. Lettunich, 50 Cal.App. 451, 195 P. 451; Rowe v. Policy Holders Life Ins. Ass'n, 131 Cal.App. 339, 21 P.2d 443; Joe Lowe Corp. v. Rasmusson, 53 Cal.App.2d 490, 127 P.2d 1002; Yellow...
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