Willingham v. Pecora

California Court of Appeal Apr 17, 1941 No. Civ. 2398Published

Before: Conway

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Holding. The court held that the trial judge did not abuse his discretion in denying a motion for change of venue, as the moving party failed to demonstrate that the change would promote the convenience of witnesses and the ends of justice, and the motion was not made within a reasonable time.

Issues

Did the trial court abuse its discretion in denying a motion for change of venue based on the convenience of witnesses?
Must a party moving for a change of venue under Code of Civil Procedure section 397(3) prove that both the convenience of witnesses and the ends of justice will be promoted?
Must a motion for change of venue be made within a reasonable time?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The determination of motions for change of venue upon grounds specified in subdivision 3 of section 397 of the Code of Civil Procedure rests largely in the sound discretion of the trial judge”

“It is not only necessary that the convenience of witnesses be promoted but equally essential that the “ends of justice” be promoted before the court is justified in granting the motion.”

“It is the universal rule in this state that motions of this character must be made within a reasonable time.”

CONWAY, J.,

pro tem.

Defendants and appellants, Philip Pécora, Mary J. Pécora, Joe Pécora and Ace Freight Lines, have taken an appeal from the order of the superior court denying their motion for change of place of trial from Kern County to Los Angeles County. The motions were mado upon affidavits based upon the ground that the change of venue was for the convenience of the witnesses to be called on the trial of the action.

This action was commenced on October 4, 1939. It was at issue and a memorandum of motion to set for trial was filed December 12, 1939, at which time the court fixed the date of trial for May 15, 1940. On April 8, 1940, appellants presented motions for change of venue based upon the same ground and both of these motions were denied by the trial judge. A wirit of

supersedeas

was issued out of this court upon stipulation of the parties staying further proceedings in the action until the determination of this appeal.

The sole question presented is whether the court abused its discretion in denying said motions for change of venue.

The action arose from an automobile collision which occurred on the Grapevine Grade in Kern County, between an automobile driven by plaintiff George Willingham, and a truck driven by defendant Vernon Shearer. Plaintiff Willingham seeks damages for personal injuries alleged to have been sustained, and plaintiffs Alice N. Hodges and G. PI. Hodges, mother and son respectively, pray for damages for the alleged wrongful death of their husband and father who was killed in the accident. The principal issues presented in the answers of defendants raise the question of the alleged negligence of the driver of the automobile in which plaintiffs were riding and also a denial of negligence on the part of the driver of the truck. The answers also raise the question of the legal relationship between the driver Shearer and certain defendants, and set up the defenses of unavoidable accident. The usual questions of damages, proximate cause, contributory negligence, and the defense of Philip Pécora that his truck was operated by the defendant Shearer without his knowledge or consent are also alleged. Upon the hearing of

[292]

Willingham v. Pecora

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CONWAY, J.,

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