Marshall v. Benedict

DOOLING, J.

Plaintiffs appeal from a judgment dismissing their action pursuant to Code of Civil Procedure, section 581b.

Plaintiffs filed their complaint in the San Francisco Superior Court charging injuries by reason of alleged medical malpractice. Respondents Benedict and Rafter, who were named as defendants, separately filed notices of motion for change of venue to Contra Costa County on the ground that they, and all other defendants, are residents of that county. By stipulation these motions were heard on September 15, 1954. No counteraffidavit or other opposition was presented and no appearance was made by appellants’ counsel at the

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hearing of the motions. The court by written order filed on September 15, 1954, granted the motion of Benedict and ordered the case transferred to Contra Costa County.

Appellants failed to pay the fees entailed by such transfer, as required by section 399, Code of Civil Procedure, for more than one year after the making of said order, and on September 21, 1955, counsel for respondents served and filed a notice of motion to dismiss the action pursuant to said section 581b, which provides that where the action was not commenced in the proper court and has been ordered transferred to such court such action must be dismissed where the fees and costs for such transfer as provided in section 399 “have not been so paid for one year after the entry of the order for transfer. ’ ’

Appellants countered with a motion to be relieved from their default in not paying such fees within the year. This motion to be relieved from default was denied on February 10, 1956, and the motion to dismiss was granted and the action ordered dismissed on February 21, 1956.

Appellants assert as grounds of reversal:

1. By filing a motion to strike portions of the complaint with his notice of motion for change of venue Rafter waived his right to have the venue changed.

2. The conduct of the respondents after the order was made misled appellants’ counsel into the belief that the motions for change of venue had been abandoned and their motion for relief from default should have been granted on that ground.