Rice v. Schubert

California Court of Appeal Jan 9, 1951 No. Civ. 4176Published

Before: Mussell

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Holding. An action by a creditor to set aside a fraudulent conveyance of real property is a local action that must be tried in the county where the land is situated.

Issues

Whether an action to set aside a fraudulent conveyance of real property is local or transitory for venue purposes.
Whether the trial court abused its discretion in denying a motion for change of venue based on the convenience of witnesses.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The nature of the action is local, and must be tried in the county where the land is situated, where it turns on the title to property as distinct from the personal obligation”

“It seems quite clear to us that the instant action “turns on the title to property” as distinct from any personal obligation”

“Under either the constitutional provision or the Code of Civil Procedure, the action is local and the proper place for trial is in Riverside County.”

MUSSELL, J.

Plaintiff commenced an action in the Superior Court in Riverside County to set aside a conveyance of real property located therein as being in fraud of creditors. Defendants answered with a general denial and filed a notice of motion for change of venue to San Joaquin County, where two of the defendants resided. The motion was made on the grounds that the action was improperly commenced in Riverside County; that it was transitory, not local, and therefore, the county where the defendants resided was the proper county for trial. On the return day of the motion, plaintiff filed an affidavit for retention of venue on account of the convenience of witnesses under section 396b of the Code of Civil Procedure. The motion for change of venue was denied and the defendants appeal from the order of denial.

The determinative question before us is whether the action is local (Code Civ. Proc., § 392, subd. 1) or transitory (Code Civ. Proc., § 395, subd. 1). If it is local, the order of the trial court must be affirmed. If it is transitory, the defendants are entitled to have the action tried in San Joaquin County.

The venue of an action is determined by subdivision 1 of section 395 of the Code of Civil Procedure, which provides for the trial of an action in the county of the defendants’

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residence upon their demand unless the action falls within some exception to that general rule.

Section 392 of the Code of Civil Procedure, subdivision 1, as far as material here, reads as follows:

“Subject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the real property, which is the subject of the action, or some part thereof, is situated, is the proper county for the trial of the following actions:

“ (a) For the recovery of real property, or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property.”

If the present action falls within the foregoing exception to the general rule, it is local and Riverside County is the proper place for trial.

Rice v. Schubert

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MUSSELL, J.

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