Sequoia Pine Mills, Inc. v. Superior Court of Tuolumne County

• Decision Date: 18 January 1968
• Citation: 258 Cal.App.2d 65,65 Cal.Rptr. 353
• Court: California Court of Appeals Court of Appeals
• Parties: SEQUOIA PINE MILLS, INC., et al., Petitioners, v. The SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; Ted AVRAM, Real Party in Interest. Civ. 892.

Page 353

65 Cal.Rptr. 353

258 Cal.App.2d 65

SEQUOIA PINE MILLS, INC., et al., Petitioners, v. The SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent Ted AVRAM, Real Party in Interest.

Civ. 892.

Court of Appeal, Fifth District, California.

Jan. 18, 1968.

[258 Cal.App.2d 66] Wyman G. Reynolds, Los Angeles, for petitioners.

Hardin & Gorgas and Victor T. Lamb, Sonora, for real party in interest.

OPINION

CONLEY, Presiding Justice.

Ted Avram filed an action in the Superior Court of Tuolumne County (No. 11065) against Sequoia Pine Mills, Inc., Fritz Hutcheson, Norman J. Winsor and Walter M. Stuermer for the dissolution of a partnership consisting of Messrs. Hutcheson, Winsor, Stuermer and himself; his allegation was that the individuals were actually doing business as a copartnership in the manufacture of lumber with a principal working Locus in Tuolumne County where the mill was located, and that they used the corporate name as an Alter ego. It was further alleged that the business interests of the individuals were: Fritz Hutcheson--40 percent, Norman J. Winsor--40 percent, Walter M. Stuermer--10 percent, and Ted Avram--10 percent. The plaintiff asked that the partnership be dissolved, that he be granted an accounting of all the business affairs of the copartnership, and that the assets be sold and the net surplus divided among the parties. In a second cause of action, plaintiff asked that the other partners be required to pay him a fair amount for his interest in Sequoia Pine Mills, Inc.

In due course, the petitioners filed a demurrer and at the same time a notice of motion for a change of venue from Tuolumne County to Los Angeles County. The supporting affidavits alleged that the principal place of business of Sequoia Pine Mills, Inc. was in Los Angeles County and that Fritz Hutcheson and Norman J. Winsor resided in counties other than Tuolumne at the time of the filing of the case; that the contract among the parties forming the alleged partnership was executed in Los Angeles County; and that as there was no special provision contained in the writing as to the place of performance the statutory presumption (Code Civ.Proc. § 395) was that the contract would be carried out in the place where it was made, that is to say, Los Angeles County. It appears that a showing was made by the moving parties that every provision of the code sections requiring a change of venue was complied with except in one instance[258 Cal.App.2d 67] --there was no showing of any kind by affidavit or otherwise that the defendant Walter M. Stuermer resided in any county other than Tuolumne. The record was entirely silent with respect to that issue.

The trial court denied a change of venue stating in a memorandum opinion filed at the same time that in view of the fact that the lumber mill was located on land in Tuolumne County, section 392 of the Code of Civil Procedure authorized the retention of the action in that county. However, in essence, there can be no question but that the suit is one for the dissolution of a partnership which was based on contract; the real parties in interest admit that section 392 of the Code of Civil Procedure does not apply; the ownership of the mill is merely incidental to the business relations of the alleged partners and the case is transitory. (Ponderosa Sky Ranch v. Okay Improvement Corp., 204 Cal.App.2d 227, 22 Cal.Rptr. 90; Turlock Theatre Co. v. Laws, 12 Cal.2d 573, 86 P.2d 345, 120 A.L.R. 786.)

Section 395 of the Code of Civil Procedure provides in part as follows:

'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.'

Thus, the Code of Civil Procedure makes it clear that the county in which a defendant resides is a proper county for the trial of such a case. As above noted, there was a showing that all of the defendants except one resided outside of Tuolumne County. However, that left one defendant who presumably resided in the county where the suit was brought. As is said in Aisbett v. Paradise Mt. Min. etc. Co., 21 Cal.App. 267, at page 268, 131 P. 330, at page 331:

'Where the complaint and record, As here, are silent upon the subject, the presumption is that the defendants are residents of the county wherein the action is commenced, and the burden of proof is cast upon them to show that they were at the commencement of the action residents of another county or counties of the state than that wherein the suit is brought, and to which they ask that the place of trial be removed. (Citing cases.) While all the necessary parties defendant joined in the demand for the change, they offered no evidence whatever touching the residence of any defendant other than the corporation, whose principal place of business it is contended was shown by affidavit to have been removed from Los Angeles County to San Bernardino County by an order of the board of directors made, prior to the commencement of the action, pursuant to the provisions of section 321a of the Civil Code. Conceding this to be true, it appears that defendants other than the corporation were residents of the county wherein the suit was brought, and it being the right of plaintiff to have the case tried in the county wherein Some of the defendants reside at the Commencement thereof, it must follow that the court did not err in making the order denying the motion.'

In La Mirada Community Hospital v. Superior Court, 249 A.C.A. 46, 57 Cal.Rptr. 42, the court was faced with a situation where there was no showing in the moving papers as to the residence of some of the defendants. The court cited the rule in Aisbett v. Paradise Mt. Min. etc. Co., supra, 21 Cal.App. 267, 131 P. 330 and stated at page 48 of 249 A.C.A., at page 43 of 57 Cal.Rptr. that:

'It is a long established rule that a motion for change of venue must satisfy two requirements: (1) It must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory (Hearne v. DeYoung, 111 Cal. 373, 43 P. 1108). The second requirement was not satisfied here.'

A point is made by the petitioners of the fact that the superior court in its memorandum of decision states that a reason for denying the petition to change the venue to Los Angeles County was the fact that the court thought that section...