Otsuka v. Balangue

California Court of Appeal Jul 11, 1949 No. Civ. 17016; Civ. 17017; Civ. 17018; Civ. 17019; Civ. 17020Published

Before: Wilson

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Holding. The court held that jurisdiction to hear a motion for change of venue depends on the fact of service rather than the technical sufficiency of the proof of service, and that any objection to such proof is waived by a general appearance.

Issues

Whether an affidavit of service stating papers were 'deposited in the mail' instead of 'deposited in the United States post office' renders proof of service fatally defective.
Whether a party waives objections to the sufficiency of proof of service by failing to raise them in the trial court and making a general appearance.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is the fact that service was made, rather than the proof of service, that vests the court with jurisdiction to act.”

“Since it does not appear that plaintiffs resisted the motions on the ground that proof of service was defective they waived the right to contest the jurisdiction of the court to hear the motion.”

WILSON, J.

Appeals from orders denying change of venue from Santa Barbara County to Ventura County in five actions brought to recover damages for personal injuries to plaintiffs alleged to have been caused by the negligent operation of an automobile by defendants on a public highway in Ventura County.

In each case, on December 17, 1948, defendants transmitted to plaintiff, by United States mail, copies of (1) demurrer to complaint, (2) points and authorities in support of demurrer, (3) notice of motion for change of venue, (4) affidavit of merits, (5) points and authorities in support of motion for change of venue, and (6) affidavit of service by mail. All the foregoing papers were filed on December 18. The notice of motion for change of venue fixed the time for the hearing of the same for January 3, 1949. The affidavit of service by mail set forth that copies of all the papers had been placed in an envelope addressed to plaintiffs’ attorneys and deposited with postage fully prepaid in the United States mail at Ventura. Copies of the documents that had been served by mail were personally served on plaintiffs’ attorneys on December 29, and affidavit of personal service was filed on the same day.

[790]

The motions for change of venue came on for hearing on the day fixed in the notices. The motions were based on the notices of motion and affidavits on file which recited that defendants were residents of Ventura County. The motions were resisted by counsel for plaintiffs. The grounds of the resistance do not appear in the record. No evidence, oral or documentary, was introduced by plaintiffs in support of their opposition, and the motions were submitted on the evidence contained in defendants’ affidavits. Thereafter the court denied the motions.

Plaintiffs contend that the order must be affirmed for the reason that defendants failed to comply with sections 396b, 1013 and 1013a of the Code of Civil Procedure. The applicable portions of those sections are as follows: Section 396b provides that an action may “be tried in the court where commenced, unless the defendant, at the time he answers or demurs, files with the clerk, ... an affidavit of merits and notice of motion for an order transferring the action or proceeding to the proper court,

together with proof of service,

Otsuka v. Balangue

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WILSON, J.

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