Pacific Bal Industries v. Northern Timber, Inc.

• Decision Date: 01 July 1953
• Docket Number: No. 15433,15433
• Citation: 118 Cal.App.2d 815,259 P.2d 465
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC BAL INDUSTRIES v. NORTHERN TIMBER, Inc., et al.

Page 465

259 P.2d 465

118 Cal.App.2d 815

PACIFIC BAL INDUSTRIES v. NORTHERN TIMBER, Inc., et al.

No. 15433.

District Court of Appeal, First District, Division 1, California.

July 1, 1953.

Maurice J. Hindin, Los Angeles, for appellants.

Wallace S. Myers, San Anselmo, for respondent.

FRED B. WOOD, Justice.

This is an action in contract brought in Marin County for the purchase price or the value of lumber sold.

In the complaint first filed plaintiff named but one defendant, Northern Timber, Inc., a corporation, which moved for a change of venue. Its motion was denied and it did not appeal.

Plaintiff then amended its complaint, bringing in four additional defendants: two individuals, R. J. Holmes and U. C. Graffeo, and two corporations, W. B. Jones Lumber Company and El Segundo Trucking Co.

Each of the five defendants moved for change of venue. Their motions were denied. All of the defendants except Northern Timber have appealed. Because of its bearing upon this appeal, it is desirable to consider the motion made by Northern Timber when it was the sole defendant.

The motion first made by Northern Timber was for transfer of the cause to Los Angeles County upon the ground that its sole residence and office is in Los Angeles County; that it has never maintained any office in Marin County, nor did it have any servants, agents, officers, or employees engaged in any business in Marin County; that if any obligation was incurred by it in favor of plaintiff such obligation was consummated and negotiated in Los Angeles County; and the performance of any such obligation was to occur in Los Angeles County.

Plaintiff, in its affidavit filed in opposition to the motion, stated that it delivered a certain quantity of lumber to defendant Northern Timber, Inc., at Redding, Shasta County, and forwarded its invoice to defendant; that through defendant's error the invoice was paid to E. W. Whitney, a lumber broker operating in Northern California, and plaintiff was required to get that payment from Whitney; that on August 18, 22, and 28, 1950, plaintiff delivered additional quantities of lumber to defendant, in Shasta County, each time forwarding its invoice to defendant; that the invoices were payable to plaintiff at San Anselmo, Marin County. A copy of the invoice of August 28, 1950, annexed to the affidavit, indicates as the buyer: 'Northern Timber, Inc., 117 North Robertson Blvd., Los Angeles, Calif.' The affidavit sets forth a letter of August 29th to Northern Timber, Inc., in which plaintiff said: 'Any and all invoices in the future should be paid through this office.' In response, August 31, 1950, Northern Timber, Inc. wrote plaintiff: 'We will follow the instructions in your letter and pay all future invoices to you through the San Anselmo office.' This evidence would support an implied finding that the defendant had agreed to perform its contract in Marin County, hence that Marin is a county in which section 16 of Article XII of the state Constitution permits that defendant to be sued.

After the filing and service of the amended complaint, ¹ which joined the additional four defendants, each of the defendants moved for transfer of the cause to Los Angeles County, the residence or the principal place of business and residence of the moving party. Their motions were denied. The appeals of the four new defendants are now before us.

Upon such a motion the basic test is furnished by § 395 of the Code of Civil Procedure: '(1) In all other cases, except as in this section otherwise provided, * * * the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action. * * * When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary.'

In respect to the defendant corporations, we have additionally to consider section 16 of Article XII of the state Constitution: 'A corporation * * * may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.'

From the affidavits presented in support of the motions it appears that each of the individual defendants resides in Los Angeles and never resided in Marin County; and that each of the three corporations has its principal place of business in Los Angeles and never had an office or engaged in business in Marin County.

Plaintiff presented no affidavit in opposition to these motions except, it would appear, the affidavit he filed in opposition to the motion first made by Northern Timber, Inc. That affidavit would, as before, support an implied finding that Northern Timber, Inc., agreed to perform its alleged contract in Marin County and, therefore, was properly sued in that county, as authorized by section 16 of Article XII of the Constitution.

That, plaintiff claims, is an all-sufficient reason for affirmance of the order appealed from, saying 'it must be conceded in this case that as between the plaintiff and Northern Timber, Inc., Marin County is the proper place for the trial of this action. That being true, the other defendants have no right to have the case tried in Los Angeles simply because their residences happen to be there * * *.' Plaintiff invokes Monogram Co. of California v. Kingsley, 38 Cal.2d 28, 237 P.2d 265 as so holding. That case does hold that non-resident defendants cannot have a cause transferred when there is a resident individual, non-corporate defendant in the action, because § 395 of the code says that the county in which the defendants 'or some of them' reside is the 'proper county' for the trial of the action. This is not a holding that, when none of the defendants is a local resident and one of the defendants, a corporation, can not transfer because it promised to perform its obligation in the county of suit, none of the others may exercise the right he might otherwise have to move to the county of his residence. The court in the Monogram case carefully limited its holding to the factual situation there presented, a case in which one of the individual defendants was a local resident. See, the discussion of that type of case, 38 Cal.2d at pages 29 and 30, 237 P.2d at page 266 and the 'distinguishable consideration' of cases involving the joinder of local and transitory causes of action or the contract exceptions to the general venue provision where none of the defendants resides in the county of suit, at page 31 of 38 Cal.2d, at page 267 of 237 P.2d. Plaintiff's point is not well taken.

As to individual non-corporate defendants, the court in the Monogram case said: 'In such situation, reference is made to the 'important right * * * of the defendant to have the cause tried in the county of his residence' and to the burden of the plaintiff in claiming 'the exceptional right of having the cause tried in some other county,' to 'clearly bring himself within a statutory exception.' Goossen v. Clifton, supra, 75 Cal.App.2d 44, 49, 170 P.2d 104, 108; see, also, Bardwell v. Turner, supra, 219 Cal. 228, 230, 25 P.2d 978; Turlock Theatre Co. v. Laws, supra, 12 Cal.2d 573, 576-577, 86 P.2d 345 .' At page 31 of 38 Cal.2d, at page 267 of 237 P.2d.

Has plaintiff in our case sustained this burden?

Its affidavit does not aid it. We find nothing in that affidavit which tends to show that any of the defendants later joined comes within any of the exceptions to the general venue provisions. Indeed, the affidavit speaks only of Northern Timber, Inc., as if it were the sole contracting party.

Certain statements in the amended complaint do affect the defendants now appealing. ² In the first count (for recovery of $1,307.43 as the agreed price for lumber sold by plaintiff to the defendants) plaintiff says they 'agreed to pay for said lumber at plaintiff's place of business in San Anselmo, California.'

The second, third, and fourth counts plead the same claim as does the first count, in different forms; i. e., as an open book account, an account stated, and debt for lumber furnished at defendant's special instance and request. The fifth count is for $1,367.73 in respect to a separate shipment of lumber allegedly furnished at defendant's special instance and request. In each of these counts (2 to 5, inclusive), the statement appears that 'in the County of Marin' the defendants 'became, were and are indebted' to plaintiff in the amount stated.

Appellants do not challenge the sufficiency of the statement in the first count that defendants agreed to pay in Marin County.

They do question the sufficiency (as evidence) of the statements in the other counts, that defendants 'became, were and are indebted' in Marin County. They say these are but conclusions, not statements of fact. It is too late to make that objection now. If appellants had interposed timely objections to those portions of the complaint, at the hearing of their motions by the trial court, the trial court doubtless would have sustained them. Plaintiff would then have been in a position, were it so advised, to request leave of court to prepare and present a supplemental affidavit stating the relevant probative facts as plaintiff believed them to be.

It is too late now for appellants to make this type of objection. In Falk v. Falk, 48 Cal.App.2d 780, 120 P.2d 724, the appellant contended that plainti...