Wilson v. Hoffman

California Court of Appeal Oct 1, 1947 No. Civ. 3466Published

Before: Marks

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Holding. The court held that the defendant was entitled to a change of venue to the county of his residence because the contract was in fact executed in that county, notwithstanding a contrary recital in the written agreement.

Issues

Whether a contractual recital regarding the place of execution overrides the actual place of execution for venue purposes under Code of Civil Procedure section 395.
Whether the defendant is entitled to a change of venue to his county of residence when the contract was not performed or executed in the plaintiff's chosen county.

Disposition. reversed

Quotations verified verbatim against the opinion

“the county where the contract was in fact made is the proper county for the commencement of the action.”

“the recital in the attestation clause to the effect that the contract was executed in one county, when in fact it was executed in another county, was not sufficient to prevent the change in the place of trial.”

MARKS, J.

This is an appeal from an order denying defendant’s motion to change the place of trial from Orange County to Los Angeles County.

By the action plaintiff seeks judgment for $1,674.50, for drilling a water well on defendant’s land in Los Angeles County under the terms of a written contract, a copy of which is attached to the complaint. The contract recites that it was “made and entered into at Santa Ana, California” and describes the property on which the well is to be drilled as in Los Angeles County.

The complaint recites “that the contract, which is the basis for this action, was entered into in the County of Orange, wherein the obligation sued upon herein was incurred and is payable, and wherein the plaintiff resides.”

Defendant filed his notice of motion to change the place of trial, which was supported by an affidavit of merits and an affidavit by defendant and his wife to the effect that defendant at all material times was a resident of the city of Long Beach in Los Angeles County and that the written contract was entered into and signed in the home of defendant at 160 Bennett Avenue in the city of Long Beach in Los Angeles County. No counteraffidavit was filed.

The venue of this action is to be determined by the provisions of section 395 of the Code of Civil Procedure, which contains the following: “When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed, unless there is a special contract in writing to the contrary.”

[666]

The contract was

in fact

entered into in Los Angeles County and the written contract contained no special provision that payment was to be made elsewhere.

The action is based on contract and as said in

Wilson v. Hoffman

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MARKS, J.

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