Hardy v. White

California Court of Appeal Feb 2, 1955 No. Civ. 20403Published

Before: Shinn

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Holding. The court held that an action seeking only monetary damages for wrongful eviction is transitory rather than local, and therefore the defendant is entitled to a change of venue to the county of their residence.

Issues

Whether an action for damages resulting from an alleged wrongful eviction constitutes an action for injury to real property under Code of Civil Procedure section 392.
Whether a complaint seeking only monetary damages for trespass is a transitory action subject to transfer to the defendant's county of residence under Code of Civil Procedure section 395.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In examining the allegations of the complaint, it is seen that money damages is the only relief sought.”

“The action must be wholly local in nature to require it to be brought in the county of the situs as designated in section 392, subdivision (a), Code of Civil Procedure.”

“It is not sufficient that title to the land may be incidentally involved, or even necessarily entered into, to make the action local if the judgment can be satisfied by the payment of money.”

SHINN, P. J.

Plaintiffs Frank R. Hardy and Bettie J. Hardy appeal from an order of the Superior Court of Los Angeles County granting the defendants’ motion for change of venue to Kern County. Defendants and respondents George White and Pauline S. White assert that under the ambit of section 395 of the Code of Civil Procedure they have the right to transfer this action to the county of their residence.

In their complaint plaintiffs alleged that they were tenants in possession of real property “. . . and dwelling house and garage thereon” in Los Angeles .County, that they “. . . resided on said premises as their home with their two minor children aged six and seven years. ...” They further alleged that defendants “. . . unlawfully entered into said dwelling house . . . seized possession . . . placed their own locks, hasps and padlocks thereon, and excluded and are excluding the plaintiffs and their children from further possession of said property.” It was alleged that the defendants acted maliciously and were guilty of wanton “disregard of the rights and feelings of plaintiffs”; that plaintiffs have suffered mental, physical and emotional distress, and that plaintiff’s psoriasis was aggravated by the emotional shock. Plaintiffs demanded compensatory and punitive damage. They did not ask for restoration of the property.

The appellants contend that their complaint sets forth a single cause of action, viz., trespass

quare clausum fregit,

and that under section 392, subdivision (a), Code of Civil Procedure, which provides that an action “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;” is to be tried in the county where the real property is located. Their contention is that this action is an injury to real property within this section, and as such is local in character.

The contention of the respondents is that this is a transitory action under section 395, subdivision (1) of the Code of Civil Procedure which provides that in “all other cases” the defendant is entitled to have the proceeding transferred to the county of his residence. “ [A] 11 other cases” refers to those

[552]

Hardy v. White

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SHINN, P. J.

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