Martinez v. Martinez

California Court of Appeal Sep 15, 1950 No. Civ. 4213Published

Before: Barnard

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Holding. The court held that an action to reform a contract and obtain an injunction is a personal and transitory action, and because the defendant's residence and the place of contract execution were in Los Angeles County, the motion for change of venue should have been granted.

Issues

Whether an action to reform a contract and obtain an injunction constitutes a local action or a personal and transitory action for venue purposes.
Whether the defendant was entitled to a change of venue to the county of his residence under section 395 of the Code of Civil Procedure.

Disposition. reversed

Quotations verified verbatim against the opinion

“On the face of the complaint and the contract as executed, the proper place for the trial of the action was Los Angeles County, under section 395 of the Code of Civil Procedure.”

“An action to reform a contract, and for an injunction in accordance with such relief, is a proceeding in equity and is essentially a personal action.”

BARNARD, P. J.

This is an appeal from an order denying a motion for change of venue.

The complaint alleged the sale to the plaintiff by the defendant of a ship supply business located in San Diego, under a written contract which was set forth in full; that it was the agreement, intent and purpose of the parties that the defendant was not to reengage in a similar business in San Diego County; that by mutual mistake a clause to that effect was not included in the agreement; that by mutual mistake, or by the mistake of the plaintiff and the fraud of the defendant, the agreement did not embody the actual agreement as theretofore made; and that the written agreement does provide for the sale of all of the vendor’s interest in said business “including the good will.” In a second cause of action, it was alleged that the phrase “including the good will” meant that the defendant would not engage in a similar business in San Diego County; that the defendant knew that the plaintiff would not have bought the business without an agreement to that effect; that such a clause was omitted from the contract either by mutual mistake or through the fraud of the defendant; and that the defendant, in October, 1949, reengaged in a similar business at another location in San Diego and has since solicited plaintiff’s customers. The prayer is that the written agreement be reformed to express the true intention of the parties as set out in the complaint, and that the defendant be enjoined from continuing in the ship supply business in San Diego. The agreement attached to the complaint provides for the sale of personal property only, this business with certain fixtures and including the good will, and for the payment of the purchase price in monthly instalments.

The defendant demurred, and moved to have the action transferred to the Superior Court of Los Angeles County. His affidavit in support of the motion alleges that his residence is and was at the time of the commencement of the action in Long Beach; that the written agreement attached to the complaint was executed in Long Beach; and that a note and chattel mortgage securing the payments to be made were also executed in Long Beach at the same time the agreement was executed. Copies of this note and chattel mortgage were attached and by reference made a part of the affidavit. The

[427]

Martinez v. Martinez

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BARNARD, P. J.

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