United Pac. Ins. Co. v. Superior Court of Sutter County

• Decision Date: 03 October 1967
• Citation: 254 Cal.App.2d 897,62 Cal.Rptr. 737
• Court: California Court of Appeals Court of Appeals
• Parties: UNITED PACIFIC INSURANCE COMPANY, Gardiner Johnson and Eunice Hilliard, Petitioners, v. The SUPERIOR COURT OF SUTTER COUNTY, Respondent; J. David HENNIGAN, Real Party in Interest. Civ. 11633.

Page 737

62 Cal.Rptr. 737

254 Cal.App.2d 897

UNITED PACIFIC INSURANCE COMPANY, Gardiner Johnson and Eunice Hilliard, Petitioners, v. The SUPERIOR COURT OF SUTTER COUNTY, Respondent;

J. David HENNIGAN, Real Party in Interest.

Civ. 11633.

Court of Appeal, Third District, California.

Oct. 3, 1967.

Rehearing Denied Oct. 30, 1967.

Johnson & Stanton, by Marshall A. Staunton, San Francisco, for petitioners.

Hennigan, Ryneal & Butterwick, by J. David Hennigan, Riverside, Real Party in Interest.

FRIEDMAN, Associate Justice.

Petitioners are: United Pacific Insurance Company, a Washington corporation which claims to have a principal place of business in the City and County of San Francisco; Gardiner Johnson, an individual who has his office in San Francisco but is a resident of Alameda County; and Eunice V. Hilliard, a resident of Alameda County. Petitioners are defendants in a wrongful attachment action pending in Sutter County. United Pacific and Gardiner Johnson filed separate motions for change of venue to San Francisco. Both United Pacific and Mrs. Hilliard consented to the change of venue sought by Johnson. Their motions having been denied by the trial court, they seek relief by mandate under Code of Civil Procedure section 400.

The action is the outgrowth of a suit for attorney fees in which Mrs. Hilliard, as Johnson's assignee for collection, was plaintiff and E. T. and Roberta Latta were defendants. The suit was filed in the San Francisco Superior Court. A writ of attachment was issued in San Francisco and levied on the Lattas' bank account in Sutter County. Later the Hilliard action was transferred to the United States District Court and terminated in the Lattas' favor. This wrongful attachment action was then filed by J. David Hennigan as assignee of the Lattas. United Pacific Insurance Company was named because it was surety on the Hilliard attachment bond. Hennigan appears here as real party in interest.

There has been some quarrel over the fact that United Pacific's separate motion for change of venue was not initially accompanied by an affidavit of merits. Later an affidavit of merits by Gardiner Johnson was filed as part of United Pacific's moving papers. Hennigan had effected service of process on United Pacific without serving Mrs. Hilliard or Johnson. United Pacific's motion for change of venue was made and rejected under those circumstances. The other two defendants were then served, and Gardiner Johnson filed his own motion for change of venue with a supporting affidavit of merits. The tactic of delayed service may not be utilized to obfuscate the position of the defendants. We take the position that both motions for change of venue were properly supported and both are now before us.

In view of the corporate venue provision of the California Constitution (art. XII, § 16), United Pacific is amenable to suit in the county where the liability arose. That event took place in Sutter County where the levy was made which deprived the owner of the use of his property. (Golden State Bot. Co. v. Fidelity & Dep. Co., 150 Cal.App.2d 424, 426--427, 310 P.2d 35; Etcheverry v. Hartford Acc. & Indem. Co., 90 Cal.App. 722, 724, 266 P. 549.) United Pacific's motion for change of venue to San Francisco was properly denied.

When a corporation is sued on a transitory cause of action in a county where it does not have its principal place of business, and there are individual codefendants who, sued alone, would be entitled to venue in their county of residence, the latter are entitled to a change of venue to that county. (Hale v. Bohannon, 38 Cal.id 458, 473, 241 P.2d 4; J. C. Millett Co. v. Latchford-Marble Glass Co., 144 Cal.App.2d 838, 840--841, 301 P.2d 914.) The individual defendants in this case are not seeking a transfer to Alameda County where both reside, but to San Francisco, which is asserted to be the corporate codefendant's principal (Hale v. Bohannon, 38 Cal.2d 458, 473, individual defendants finds support in Walker v. Wells Fargo Bank and Union Trust Co., 24 Cal.App.2d 220, 74 P.2d 849, which holds that an individual sued with a corporation in a county where neither resides may have the action moved to the county where the corporation has its residence, that is, its principal place of business. The theory is that, by joining the individual defendant with the corporation, the plaintiff waived the benefit of the constitutional provision on corporate venue and the action becomes one of the 'other cases' mentioned in Code of Civil Procedure section 395, being transferable to a county in which any one defendant, i.e., the corporation, resides. Walker v. Wells Fargo Bank and Union Trust Co., supra, 24 Cal.App.2d at pp. 222--223, 74 P.2d 849; Van Alstyne, Venue of Mixed Actions...