Quick v. Corsaro

• Citation: 4 Cal.Rptr. 674,180 Cal.App.2d 831
• Court: California Court of Appeals Court of Appeals
• Decision Date: 11 May 1960
• Parties: Margaret QUICK, Plaintiff and Respondent, v. Dominic CORSARO, John Giumarra, George Giumarra and Joseph Giumarra, individually and as copartners dba Giumarra Brothers Fruit Company, a limited copartnership, Defendants and Appellants. Civ. 18995.

Page 674

4 Cal.Rptr. 674

180 Cal.App.2d 831

Margaret QUICK, Plaintiff and Respondent, v. Dominic CORSARO, John Giumarra, George Giumarra and Joseph Giumarra, individually and as copartners dba Giumarra Brothers Fruit Company, a limited copartnership, Defendants and Appellants.

Civ. 18995.

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

May 11, 1960.

Mack, Bianco, King & Eyherabide, D. Bianco, Bakersfield, for appellants.

Weinstock, Anderson, Maloney & Chase, Harold J. Chase, San Francisco, for respondent.

TAYLOR, Justice pro tem.

This is an appeal from a denial of the defendant's motion for a change of venue from San Francisco to Kern County.

The unverified complaint contains three causes of action. The first cause of action is for declaratory relief and alleges that one Clark acting outside the actual or ostensible scope of his agency as a salesman for the First California Company of San Francisco (plaintiff's assignor) did at Bakersfield, Kern County, offer to secure 700 shares of Tennessee Gas Transmission stock in two lots of 500 for the defendant, Giumarra Brothers Fruit Company, and 200 for the defendant, George Giumarra, individually, at a reduced price in the total amount of $17,500; that defendants agreed to buy, and paid Clark the money which he appropriated to his own use; that Clark placed the orders for the 700 shares on behalf of the defendants with the First California Company's office in San Francisco, who, in turn, confirmed the orders and billed the defendants at the regular total purchase price of $24,312.50 due and payable in San Francisco; that defendants caused to be delivered to the First California Company their check on the Giumarra Brothers Fruit Company for $24,312.50 which the First California Company, after being so advised by the agent Clark, applied to the outstanding debt and delivered the defendants the 700 shares; that defendants in an action in Kern County against the plaintiff's assignor for $34,500 contend that the agent sold them an additional 1,000 shares of Tennessee Gas at a reduced price, and that the $24,312.50 check which they delivered to the First California Company was payment for this lot of 1,000 shares. The plaintiff prays for a declaration that the $24,312.50 check sent to them by the defendants was in payment of the 700 shares, or in the alternative that said amount is due and payable, that the agent Clark was acting beyond either his actual or ostensible authority in his dealings with the defendants, and that the defendants must bear the loss due to Clark's theft.

The second cause of action concerns the sale of the 500 shares and the third cause the 200 shares, as set forth in the first cause of action, and both causes allege that the orders were placed at the First California Company office in San Francisco and that the purchase price is due and payable there. Judgment is prayed for accordingly.

The defendant, George Giumarra filed a demurrer and a motion for a change of venue to Kern County where he resides. The defendant's affidavit in support of the motion alleges that he has been advised by his attorney that he has a good defense to the complaint that the defendants were at the time of the commencement of the action, ever since have been, and now are residents of Kern County; 'that each and all of the obligations, if any, described in plaintiff's Complaint were incurred in the County of Kern, State of California, and that there was never any special contract in writing that said obligations, if any were to be performed at any other place than the County of Kern, State of California.'

The general rule is that the residence of the defendant is the proper place for trial and this applies to contract actions with certain exceptions set out in section 395 of the Code of Civil Procedure. That section reads in part: '(1) In all other cases, except as in this section otherwise provided, and subject to the power of the court to transfer actions or proceedings as provided in this title, 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. * * *'

The defendant first contends that the gravamen of the plaintiff's first cause of action is fraud, and that defendant's residence is the proper place for trial. It is true that an action in fraud is transitory and is triable in the county of defendant's residence. Averill v. Lincoln, 52 Cal.App.2d 398, 126 P.2d 398. It has also been held that where several causes of action are alleged in a complaint, a motion for a change of venue must be granted on all, if defendant is entitled to a change on any one. Ah Fong v. Sternes, 79 Cal. 30, 33, 21 P. 381; Goossen v. Clifton, 75 Cal.App.2d 44, 47, 170 P.2d 104; Keithly v. Lacey, 77 Cal.App.2d 339, 340, 175 P.2d 235. However, it is our opinion that the first cause of action is on the contract. The plaintiff is not charging the defendant with fraudulent conduct. The primary relief sought is a confirmation of the contracts of stock purchase between the plaintiff's assignor and the defendants. The fact that the plaintiff is also asking for a declaration that Clark was not acting within scope of his agency with the First California Company in his dealings with the defendants at the time he defrauded them does not alter the essential nature of plaintiff's cause of action against defendants.

The defendant further argues that all testimonial statements made in court must be under oath (6 Wigmore on Evidence (3rd ed. 1940), § 1824, p. 308; Code of Civ.Proc. § 2002), and that the court had no authority to consider the allegations in plaintiff's unverified complaint as against the affidavit of the defendant. There appear to be no cases in California on this precise point. It was said in Woods v. Berry, 105 Cal.App. 90, 92, 286 P. 1073, 1074, '[A] motion for change of venue shall be heard upon affidavits and the verified pleadings * * * affidavits constitute the evidence upon which the validity of the order depends.' Witkin says, 'Venue is determined chiefly from an examination of the complaint, and a verified complaint is treated as a plaintiff's counteraffidavit in so far as it contradicts the affidavit of the moving defendant.' (Emphasis added.) 1 Witkin, California Procedure, § 260, p. 781, citing cases.

It is our opinion that where the defendant's affidavit adequately controverts the allegations in plaintiff's unverified complaint which would give the county in which it was filed jurisdiction to try the action, and alleges facts which would make the action triable in another county, the court must, in the absence of a sufficient counteraffidavit, grant the motion, and has no authority to treat the unverified complaint as a counteraffidavit. However, where the defendant's affidavit does not deny or...