Nelson v. Enos

SPENCE, J.

Plaintiff made a motion for change of venue from Santa Clara County to the city and county of San Francisco upon the ground that the convenience of witnesses and the ends of justice would be promoted by such

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change (Code of Civil Procedure, section 397, subd. 3). From the order granting said motion, defendants appeal.

This litigation involved the alleged procurement by Elizabeth A. Nelson, since deceased, of a gift deed from plaintiff to certain real property at a time when plaintiff was in Stanford Hospital in San Francisco and was about to undergo a serious operation. The defendants are the executor and executrix of the last will of said Elizabeth A. Nelson, deceased. Defendant Enos resides in the city and county of San Francisco and defendant Riggs resides in the county of Santa Clara.

In support of the motion, plaintiff filed his affidavit showing that plaintiff and all witnesses to be called by him were residents of San Francisco and that he knew of no person residing outside of San Francisco who could give any relevant testimony at the trial. In said affidavit, plaintiff set forth the names of the several witnesses residing in San Francisco and the testimony which would be given by each of said witnesses. Defendant Riggs alone filed a counter-affidavit. In said affidavit he stated that it was impossible to know what testimony would be required to defend the action and further stated that “whatever witnesses” were required resided in Santa Clara County. He failed however to name any such witness and failed to give the substance of the testimony of any such witness. The counter-affidavit further contained an offer to stipulate that certain of the witnesses named by plaintiff would testify as stated in plaintiff’s affidavit.

Defendants contend that the trial court abused its discretion in granting said motion but we find no merit in said contention. In their briefs, defendants divide the witnesses named in plaintiff’s affidavit into four classifications as follows: (1) plaintiff; (2) witnesses whose testimony was the subject of the offer to stipulate contained in the counter-affidavit of defendant Riggs; (3) witnesses whose testimony was claimed to be irrelevant; and (4) witnesses whose names and residences were not specifically set forth but were merely referred to as the representatives of Stanford Hospital who would be called to produce the hospital records. Defendants then argue that the convenience of the persons named in classifications 1, 3 and 4 should not have been considered by the trial court. As to the witnesses named in classification 2,