Anderson v. No-Doz

California Court of Appeal Jun 23, 1955 No. Civ. 20686Published

Before: Vallee

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Holding. The court held that the defendant's affidavit of merits was insufficient because it failed to state that the defendant had fully and fairly stated all the facts of the case to counsel and failed to show that counsel advised the defendant of a defense on the merits.

Issues

Whether the defendant's affidavit of merits satisfied the requirements of section 396b of the Code of Civil Procedure.

Disposition. Reversed

Quotations verified verbatim against the opinion

“The purported affidavit of merits is clearly insufficient.”

“An affidavit of merits must depose that the defendant has fully and fairly stated the case and all the facts thereof to his attorney, and that after such statement he was advised by his attorney and verily believes that he has a good and substantial defense on the merits.”

“The failure of the affiant to allege that defendant’s counsel advised him defendant has a “defense on the merits” is an additional reason why the affidavit is insufficient.”

VALLÉE, J.

Appeal by plaintiff from an order granting defendant’s motion for a change of venue from the county of Los Angeles to the city and county of San Francisco. He contends the order should be reversed because the affidavit in support of the motion was not sufficient as an affidavit of merits as required by section 396b of the Code of Civil Procedure.

The action is one for damages for personal injuries sus

[13]

famed in an accident which occurred in the county of Monterey. The motion was made on the ground that at the time of the commencement of the action defendant was a resident of the city and county of San Francisco.

The motion was based on the complaint, the notice of motion, and an affidavit of Warren E. Merrill which reads:

“That he is the Secy-Treas. of the defendant, Harrison Products Inc., a corporation, organized and existing under the laws of the State of California. That defendant’s attorneys, Reed and Kirtland, have stated to him that they have a valid defense to this action. That at the time of the commencement of this action, and at the present time, the Harrison Products, Inc., manufactures a product known as “NoDoz Awakeners,” in the City of San Francisco, County of San Francisco, State of California. That the principal place of business of the Harrison Products, Inc. was at the time of the event giving rise to this action and at the time of commencement of said action 45 Second Street, San Francisco, California, and now is 610 Folsom Street, San Francisco, California, and at all times herein mentioned has been at either of these locations in San Francisco, California. Affiant further states the Harrison Products, Inc. does not have an office in Los Angeles County.”

Plaintiff opposed the motion on the grounds the affidavit was not sufficient as an affidavit of merits as required by section 396b of the Code of Civil Procedure and that no affidavit of merits sufficient as such had been filed. The motion was granted.

Section 396b of the Code of Civil Procedure requires the filing of an affidavit of merits with a notice of motion for an order transferring the action to another court.

(Fernandez

Anderson v. No-Doz

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