E. C. Livingston Co. v. Blythe Alfalfa Growers Ass'n

California Court of Appeal Feb 9, 1956 No. Civ. 5253Published

Before: Griffin

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Holding. The court held that while the trial court abused its discretion by denying a motion for change of venue based on the convenience of witnesses without a sufficient evidentiary basis, the case should be remanded to allow the respondent an opportunity to present evidence supporting the retention of the action in the original county.

Issues

Did the trial court abuse its discretion by denying a motion for change of venue based on the convenience of witnesses without considering counter-evidence?
Does a trial court have the authority to consider oral testimony in addition to affidavits when determining a motion for change of venue based on the convenience of witnesses?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The rule is well settled, of course, that a motion for a change of venue grounded upon the convenience of witnesses rests largely in the discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing of its abuse.”

“where there is a showing that the convenience of witnesses and the ends of justice will be promoted by the change and there is absolutely no showing whatever to the contrary and a change has been denied, then there has been an abuse of discretion”

GRIFFIN, J.

Plaintiff, cross-defendant and respondent E. C. Livingston Company, Inc., a general building contractor with its principal place of business in Paso Robles, brought this action in Riverside County against the defendant, cross-complainant and respondent Blythe Alfalfa Growers Association, which has its principal place of business in Blythe. The complaint alleges that plaintiff entered into an agreement in writing in Riverside County with defendant company whereby plaintiff agreed to furnish labor and material to erect for defendant, in Blythe, a certain grain storage

building;

that it completed it on May 14, 1954, and defendant refused to pay a balance of $4,841 due thereon.

Defendant association filed an answer and cross-complaint against plaintiff and made Wheeler and Reeder, a partnership, of Los Angeles, and Fidelity and Deposit Company of Maryland, a corporation, parties defendant to the cross-complaint, alleging that on April 7, 1954, in Riverside County, Wheeler and Reeder entered into a written agreement with cross-complainant to furnish all materials and labor for the foundation and slabs for the grain storage building, and failed to properly perform said work; that the Fidelity and Deposit Company furnished cross-complainant a faithful performance bond for such work and refused to indemnify cross-complainant for damages by reason of the abandonment by Wheeler and Reeder and E. C. Livingston Company, Inc. of said contract. Damages and a declaration of rights were sought.

An answer to the cross-complaint was filed by Wheeler and Reeder on January 12,1955, and the court set March 30, 1955, as the time of trial. On April 11,1955, a motion for change of place of trial on account of convenience of witnesses and to promote the ends of justice was filed by Wheeler and Reeder. On May 20, 1955, they filed an amended answer and counterclaim. Demurrers and motions to strike were directed toward them. On May 31, 1955, the demurrer to the amended answer and counterclaim was ruled upon. The motion for change of place of trial was heard and submitted on May 6, 1955, and denied on May 10th.

The main question here presented is whether the trial court erred in denying the motion for change of place of trial at the time and upon the showing made. Defendant Wheeler and

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E. C. Livingston Co. v. Blythe Alfalfa Growers Ass'n

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GRIFFIN, J.

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