Pearson v. Superior Court, City and County of San Francisco
| Decision Date | 11 January 1962 |
| Citation | 18 Cal.Rptr. 578,199 Cal.App.2d 69 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Queta PEARSON, Petitioner, v. SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, Respondent, Bill Pearson, Real Party in Interest. Civ. 20242. |
Guerin & Guerin, Los Angeles, for petitioner.
Field, DeGoff, Rieman & Murphy, San Francisco, for real party in interest.
Petitioner Queta Pearson, defendant and cross-complainant in an action for divorce seeks a writ of mandate compelling the respondent superior court to vacate and set aside its order denying petitioner's motion for a change of venue of such divorce action from the City and County of San Francisco to the County of San Diego, and to grant such change of venue.
We set forth a chronology of the original proceedings: On March 28, 1961, real party in interest Bill Pearson (plaintiff and cross-defendant below) filed his complaint for divorce upon the grounds of extreme cruelty; on August 30, 1961, Mrs. Pearson filed her answer to the complaint and also a cross-complaint for divorce upon the grounds of extreme cruelty; on September 7, 1961, Mrs. Pearson served and filed a notice of motion for change of venue, originally to be heard on September 12, 1961, but apparently continued by consent of the parties to September 19, 1961; in the interim, and on September 15, 1961, Mr. Pearson filed a notice of motion to file a supplemental complaint for divorce on the grounds of desertion, and also filed an answer to Mrs. Pearson's cross-complaint. Both motions were heard by the respondent court on September 19, 1961.
Petitioner's notice of motion for change of venue states that such motion will be made on the grounds: 'that the aforesaid change of venue is necessary for the convenience of witnesses and will promote the ends of justice'; and 'that the defendant is a resident of San Diego County and the ends of justice will be promoted by transferring the cause to said County.' 1 Petitioner's motion was supported by three unsworn certificates executed in compliance with section 2015.5 of the Code of Civil Procedure: One each of petitioner and her counsel served and filed with the above notice of motion and the third designated a 'supplemental certificate,' executed, served and filed by petitioner on the day of the hearing. 2 Hereafter, we will refer to such certificates as affidavits.
The affidavit of petitioner's counsel sets forth the names and addresses of eleven witnesses, all living in San Diego County, who will be called on behalf of petitioner, and will testify as to specific acts of cruelty on the part of Mr. Pearson towards Mrs. Pearson. The supplemental affidavit of petitioner, setting forth certain particulars of the testimony of said eleven witnesses and also of an additional witness, a resident of the same county, avers that they will testify in substance as follows: that Pearson has never applied himself to work and refuses to work; that he has said on numerous occasions he did not want to sell his objects of art; that he wants to keep such objects for his own enjoyment; that he has a bad temper, is possessive and domineering towards his wife, has made disparaging remarks about her, called her 'a stupid bitch,' and said that she was stupid and had no taste; that he struck petitioner; that he spent large amounts of money on himself, spent money foolishly and ignored petitioner's needs; that his conduct has made petitioner nervous, upset and ill. With respect to four of the twelve witnesses, it is averred that they will testify to the same effect as certain previously identified witnesses. The affidavit of petitioner filed with the notice of motion states that petitioner and her husband made their home in San Diego County from 1957 until April or May 1960; that she and her children still reside there; and that in the event the action is maintained in San Francisco substantial traveling expenses will be incurred by petitioner for herself and her two children, ages two and four years. It also avers that travel of the petitioner or of said children to San Francisco will cause hardship.
The opposing affidavit of the real party in interest, dated September 12, 1961, 3 is a narrative of his move from La Jolla to San Francisco, his discussions with petitioner pertaining to the listing for sale of their residence in the former place, and certain financial transactions between the parties and by them with the Internal Revenue Service, and concludes with allegations pertaining to certain property of the parties and the support of their children. It avers that petitioner's acts therein detailed constitute not only extreme cruelty but also desertion. The affidavit does not set forth the name of one witness whom the husband intends to call either in San Francisco or in any other forum. It does not give any reason why the husband must remain in San Francisco. It does not deny any of the allegations of the two affidavits filed with petitioner's notice of motion.
While petitioner's third and so-called supplemental affidavit was filed after the foregoing affidavit of the husband and indeed on the date of hearing itself, it in effect particularized the affidavit of petitioner's counsel which was filed with the notice of motion, except for the setting forth of the name of one additional witness. An examination of the transcript of the proceedings had on the hearing of the motion fails to disclose any objection by the real party in interest to the filing of petitioner's supplemental affidavit, any request of the court to file an affidavit in response thereto or any offer to dany in open court the allegations with respect to petitioner's intended witnesses of their anticipated testimony. 4
On the foregoing affidavits, the trial court on September 19, 1960, denied petitioner's motion for change of venue. 5 The court also disposed of other matters which are not before us, included among which was the granting of Mr. Pearson's motion to file a supplemental complaint for divorce on the ground of desertion. A single written order setting forth all of the court's action was signed by the Presiding Judge on September 29, 1961, apparently in the absence of the judge of the domestic relations department. The pending petition for writ of mandate seeks relief from only that portion of the above order relating to the denial of change of venue.
Real party in interest opposes the relief here sought and urges the discharge of the alternative writ heretofore issued. In such opposition he assumes that petitioner's motion for change of venue was made only on the grounds of convenience of witnesses under subdivision 3 of section 397. He makes no argument in opposition to the making of the motion under subdivision 5 of section 397. His several arguments made in connection with the grounds of convenience of witnesses are reducible to the following two basic contentions: (1) That petitioner's supporting affidavits fail to make a sufficient showing for a change of venue on the grounds of convenience of witnesses and the denial of petitioner's motion was within the sound discretion of the trial court; (2) Petitioner's motion for change of venue was premature and its denial was within the sound discretion of the court for such reason.
We will consider the above contentions in reverse order and first proceed to determine whether petitioner's motion was prematurely made.
Two points are urged in support of the contention that petitioner's motion for change of venue was premature: First, that the notice of motion was filed eight days before the filing by the real party in interest of an answer to petitioner's cross-complaint for divorce and therefore before the cause was at issue on all original pleadings. 6 Secondly, at the time of the hearing of petitioner's motion, there was pending before the court, a motion of the real party in interest to file a supplemental complaint, so that petitioner's motion was being made before possible supplemental pleadings were at issue. We feel both points are devoid of merit.
A motion for change of venue on the ground of the convenience of witnesses will not be entertained then the defendant has not filed an answer (DeLong v. DeLong, 127 Cal.App.2d 373, 374, 273 P.2d 921) for the obvious reason that until the issues are joined the court cannot determine what testimony will be material
While petitioner's motion is deemed to have been made 'upon the due service and filing of the notice of motion' (Code Civ.Proc. § 1005.5; Batchelor v. Finn, 169 Cal.App.2d 410, 417, 341 P.2d 803, 346 P.2d 795) and while at the time the notice was filed on September 7, 1961, no answer to the petitioner's cross-complaint had yet been filed, nevertheless, the answer to petitioner's cross-complaint having been filed on September 15, 1961, it appears that on September 19, 1961, the day the motion was heard, issue had been joined on all original pleadings, that is, on the complaint and answer thereto, and on the cross-complaint and answer to said cross-complaint. On the last mentioned date, the requirement as declared by the foregoing authorities, had been met and the court was in a position to determine what testimony would be material, which is the very purpose of the above rule. The record before us does not disclose that the real party in interest either sought the dismissal of petitioner's motion for change of venue or objected to its being heard, on the ground that it was prematurely filed before the answer to petitioner's cross-complaint. It would not be in the interest of justice to permit such objection to be made now. Certainly, the real party in interest has referred us to no authority holding that petitioner's motion was a legal nullity.
Was the motion thereafter nullified or affected by...
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