Ponderosa Sky Ranch v. Okay Improvement Corp.

FILES, J.

This is an appeal from an order denying a motion for a change of venue. The appeal was taken prior to the 1961 amendment to Code of Civil Procedure, section 963. Hence this court has jurisdiction to hear and decide it.

The original complaint in this action, filed October 10, 1960, by Ponderosa Sky Ranch, a corporation, against Okay Improvement Corporation, a corporation, and Title Insurance and Trust Company, as trustee, contains the following allegations :

Each defendant has its principal place of business in Los Angeles County. About May 8, 1958, plaintiff and defendant Okay entered into an agreement whereby plaintiff would purchase from Okay certain real property in Tehama County. Plaintiff was to execute three purchase-money notes in the amount of $60,000 each payable to Okay, secured by a trust deed on the real property, with Title Insurance and Trust Company as trustee. Plaintiff had the privilege of selling portions of the land on contract and assigning such land contracts to Okay, who would use the proceeds towards the discharge of plaintiff’s obligations on the notes. Okay had orally agreed to give partial reconveyances as to the property sold by plaintiff. The complaint further alleged that Okay had refused to give such partial reconveyances, thereby preventing plaintiff from making land sale contracts which would have been used to discharge the notes. Okay had declared a default by reason of nonpayment of the notes and the trustee was about to sell the property.

The original complaint prayed for the following relief: (1) an injunction to stop the trustee’s sale; (2) a declaration that Okay was obligated to grant partial reconveyances and accept land contracts towards satisfaction of the notes and

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an injunction forbidding defendant to refuse; (3) reformation of the escrow instructions relating to this transaction.

Okay filed a demurrer to this complaint, which was sustained. A first amended complaint was filed, not substantially different from the original, and another demurrer was sustained.

Plaintiff then filed a second amended complaint which omitted the Title Insurance and Trust Company and joined as defendants Orville A. Figgs, Okay Improvement Corporation, and fictitiously named parties. This new pleading restated the old allegations concerning the May 8, 1958, contract and added the following -. that Okay is the