Easton v. Superior Court

Opinion

BROWN (Gerald), P. J.

Harmon L. Easton petitions for a writ of mandate to vacate an order transferring venue of an action from San Diego to Los Angeles County, and to compel trial in San Diego County. Since there is no basis for venue in Los Angeles County, we grant the writ.

Harmon L. Easton and others sued Schneider Bros. Inc., a Chicago based commodity brokerage firm, and Gale Berry. Berry was Schneider Bros.’ Los Angeles office manager when the acts complained of occurred. When the motion for change of venue was made, however, Berry was no longer employed by Schneider Bros.; Schneider Bros, had closed its Los Angeles office and withdrawn from California.

Easton and the others, all former clients of Schneider Bros., alleged causes of action for breach of contract, fraud, breach of fiduciary duty by “churning” their accounts, i.e., making numerous unauthorized sales and purchases, and failure to account. Compensatory and punitive damages are sought against Schneider Bros., its alleged

alter egos

Morris and Harold Schneider, and Gale Berry.

Gale Berry answered the complaint.

Without answering the complaint, Schneider Bros, moved for a change of venue on grounds of convenience of witnesses and the court designated in the complaint was not the proper court. The superior court granted the motion.

The matter of convenience of witnesses was not properly before the court, because Schneider Bros, had not filed its answer. Only then could the court ascertain what the issues and the evidence relating to those issues would be. Before the answer is filed, the court cannot determine whether the witnesses whose convenience is involved have material testimony to offer

(Cook

v.

Pendergast,

61 Cal. 72;

Pearson

v.

Superior Court,

199 Cal.App.2d 69, 75 [18 Cal.Rptr. 578]). “It is a long established rule that a motion for change of venue must satisfy two requirements: (1) It must be

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