Kroesen v. Gordon

THE COURT.

This is an appeal from an order granting respondents’ motion “for a change of venue for trial” of the herein action to the county of Santa Cruz.

The statement of appellant as to the question involved is as follows: “Was it error for the trial court to grant a motion for a change of venue of an action for damages for fraud (a noncontractual action) from the county of residence of the appellant to the county of residence of respondents upon the ground of convenience of witnesses, (a) where it is not alleged by respondents that any witnesses would be called or used on behalf of respondents other than respondents themselves, and (b) where appellant alleges that he will call and use witnesses necessary to the presentation of his defense who reside in and have their places of business in the county from which the action is ordered transferred?”

However, the real question is as stated by respondents in their “restatement of question involved,” to wit:

“Is it an abuse of discretion for a Court to grant a motion for a change of venue on the ground of convenience of witnesses and that the ends of justice will be promoted by keeping the place of trial in the county where the action was originally filed, and where it appears that the affidavits of the moving parties and the' counteraffidavits contradict each

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other and there is a conflict of evidence concerning such facts?”

This case was originally filed in thé county of Santa Cruz. The defendant-appellant moved to transfer the matter to the county of Los Angeles for trial, on the ground that he was a resident of the latter county, and an order was properly made by the Superior Court of Santa Cruz County transferring the case to Los Angeles County for trial. Thereupon, plaintiffs-respondents made their motion for a retransfer of the cause to the Superior Court in and for the County of Santa Cruz, on the grounds that (a) the various transactions stated in their complaint began and were completed in the City of Santa Cruz, County of Santa Cruz, State of California; and (b) upon the further ground of convenience of witnesses; and (c) that the ends of justice would be promoted by keeping the place of trial in the county of Santa Cruz where the action was originally filed.