Standard Brands of California v. Bryce

SHENK, J.

The plaintiff commenced an action in the Superior Court in and for the City and County of San Francisco by filing a complaint praying for certain declaratory and injunctive relief, to which the defendants Bryce filed an answer and a cross-complaint. The defendants Barrett and Ililp also filed an answer. The defendants Bryce moved for a change of place of trial to the county of Los Angeles. The motion was granted, and from the order the plaintiff appeals.

The allegations of the complaint show that the plaintiff owns certain real property in the city of Los Angeles. The defendants Bryce own adjoining property. Under a contract with the plaintiff the defendants Barrett and Hilp, copartners, erected a building on the plaintiff’s property. In the course of construction thereof certain excavating was done under the cottages on the defendant Bryces’ lot, and a concrete ledge or shelf built which connected the cottages with the wall of the plaintiff’s building. The plaintiff alleges that the defendants Bryce have notified it that their land and cottages have been injured by reason of that and other claimed encroachments and the excavations on the Bryces’ land, and other matters not necessary to mention specifically, and that said defendants intend to and will assert claims for damages against the plaintiff and commence an action against it for the sum of $7,500. It is further alleged that if there are any encroachments upon or injuries to said defendants’ property, the liability is not that of the plaintiff but of the defendants, Barrett and Hilp. The plaintiff seeks a declaration of its rights and duties with respect to the defendants Bryce and the defendants Barrett and Hilp, and in respect to the property of the defendants

[720]

Bryce, and for a declaration that the liability for said claimed injuries, if any, is the liability of the defendants Barrett and Hilp and not of the plaintiff. It also asks for an injunction to restrain the defendants from commencing any action against it on account of the asserted claim of the defendants Bryce.

The ground of the appeal is that the motion for change of place of trial should have been denied because the action is not governed by section 392 (1) of the Code of Civil Procedure, and that the complaint shows that a cause for declaratory relief is alleged also against the defendants Barrett and Plilp, and that they were not joined as defendants solely for the purpose of having the action tried' in the city and county of San Francisco, the place of their residence. (Sec. 395, Code Civ. Proc.)