Kostal v. Pullen

California Supreme Court Dec 21, 1950 No. Sac. 6154Published

Before: Shenk

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Holding. The court held that the defendant was entitled to a change of venue to the county of his residence because the uncontroverted facts and the amended complaint established that the obligation was incurred and performable in that county.

Issues

Whether the defendant's citation of code sections in a notice of motion constituted sufficient compliance with the rule requiring a memorandum of points and authorities.
Whether the trial court erred in denying the defendant's motion for a change of venue when the facts established the defendant's right to transfer.

Disposition. reversed

Quotations verified verbatim against the opinion

“On the uncontroverted facts disclosed by the defendant’s affidavit he was entitled to the requested transfer”

“The order is reversed with directions to the trial court to grant the defendant’s motion for a transfer.”

SHENK, J.

The defendant has appealed from an order denying his motion for change of venue.

[529]

On April 12, 1949, the plaintiffs commenced the action in San Joaquin County to recover on a promissory note. They alleged in substance the defendant’s execution and delivery to them of a note dated October 6, 1948, in the principal sum of $1,340 payable in monthly instalments of $150 commencing October 20, 1948, with interest, on which but one instalment had been paid and on which there remained due and unpaid a balance of principal and interest in the sum of $1,201.58. The complaint did not show the place of execution or performance of the note.

On May 9th the defendant filed a demurrer on general and special grounds including the ground of uncertainty as to the place of execution and payment. Concurrently he filed a notice of motion for change of place of trial to the county of Los Angeles on the ground that he was a resident of that county, that the alleged obligation, if incurred at all, was incurred in that county, and that “the proper place of the trial of this action is in the said City of Los Angeles, County of Los Angeles . . . under and pursuant to the provisions of section 395 and 396 of the Code of Civil Procedure of the State of California. ’ ’ An affidavit of merits accompanied the notice which included averments that the defendant was a resident of Los Angeles County, and that the obligation, if any, was incurred in that county. As authority for the transfer the defendant relied on the code sections mentioned in the notice of motion. No counteraffidavit was filed. On May 17, 1949, the day noticed for the making of the motion, the court denied the motion and sustained the demurrer with leave to amend. The defendant filed his notice of appeal on July 1st.

On the uncontroverted facts disclosed by the defendant’s affidavit he was entitled to the requested transfer (Code Civ. Proc., § 395;

Lyons

Brunswick-Balke etc. Co.,

20 Cal.2d 579 [127 P.2d 924, 141 A.L.R. 1173] ;

Mercantile Acceptance Corp.

Kostal v. Pullen

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SHENK, J.

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