Edwards v. Pierson

ASHBURN, J.

Appeal from order denying motion for change of venue from Santa Barbara County to Los Angeles County upon the ground of convenience of witnesses. The action seeks recovery of damages for personal injuries received while plaintiff was a paying guest at defendants’ motel in Santa Barbara County. The complaint alleges negligent failure to keep the swimming pool and walks in good, safe and proper condition, and that same were in slippery, hazardous, defective, dangerous and unsafe condition, as the proximate result of which plaintiff, while walking upon the walks alongside the pool, slipped and tripped, fell and injured himself. Issue was duly joined upon these allegations by answer filed.

The action was filed in Los Angeles County but the parties stipulated that the case be transferred to Santa Barbara County because the accident occurred there and defendants reside therein, it being understood that such transfer should be without prejudice to a motion by plaintiff under section 397, Code of Civil Procedure, to transfer the cause to Los Angeles County. The transfer to Santa Barbara having been effected, plaintiff moved for a retransfer to Los Angeles upon the ground that convenience of witnesses and the ends of justice would be promoted by such change of place of trial.

Attached to the notice of motion is the affidavit of plaintiff’s attorney who avers that plaintiff, his wife, father and mother, are residents of Los Angeles County and will be necessary witnesses on behalf of plaintiff; that each of said three supporting witnesses would testify that he or she “was personally present and witnessed the happening of the accident which is the subject of said action, the description of the premises, the resultant injuries and damages.” Also alleged to be necessary witnesses are two physicians and one dentist who reside and practice in Los Angeles County, each of whom will testify “to his observations made upon examination of the plaintiff

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following the accident, the care and treatment afforded to plaintiff, prognosis, and reasonable value of the medical [or dental] services rendered to plaintiff”; that in each instance “leaving said county [of Los Angeles] for any length of time will seriously interfere with the practice of his profession, causing great loss.” Also averred to be a necessary witness is some representative of San Gabriel Valley Hospital which is situated in Los Angeles County, which said unnamed representative “will testify as to the X-rays taken of plaintiff's injuries, the observations made upon examination of said X-rays, and the reasonable value of said X-ray services, rendered to plaintiff.” It is also averred that at defendants’ request plaintiff was examined by Dr, Wallace Dodge who maintains his offices in the city of Los Angeles, and “it is presumed that the defendants will wish to call said doctor to testify for and on their behalf.” By way of conclusion the affidavit says: “That by reason of the necessary and material evidence that the aforementioned witnesses will testify to, their presence will be required at the trial of the within action. That the convenience of the aforementioned witnesses would best be served if the action herein was transferred and tried in Los Angeles County.” The foregoing discloses the full extent of the showing made by the moving party.