WHELAN, J. I dissent.
The motion of the petitioners for change of place of trial clearly was made upon the ground that Orange County was not the proper county for the commencement of the action; that Los Angeles County was the proper county. The affidavit alleged that both the defendant corporation and the defendant copartnership had their principal place of business in Los Angeles County. The notice of motion was supported by a citation of section 395, Code of Civil Procedure. The stipulation of the parties was that the motion “may be granted.” That fact should be determinative of this proceeding. Section 399, Code of Civil Procedure, places upon the plaintiff the obligation to pay the costs of transfer:
“When the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by the provisions of this title, ...”
Section 581b requires that the action be dismissed if within one year the fees have not been paid as provided in section 399.
[45]Incidentally involved is the question whether the court making the order of transfer based upon a stipulation that the motion for change of venue be granted may later pass upon the merits of the motion for change of venue to determine whether the action was commenced in the proper court.
In passing upon petitioners’ motion to dismiss, the court considered certain affidavits prepared for that occasion intended to show that certain individual defendants allegedly members of the defendant partnership were resident in Orange County.
The process seems to have been for the court to say that had petitioners’ motion for change of venue been opposed, the court should and would have denied the motion; and from that first step to move on to say that since a court well-informed in the law, dealing with equally well-informed counsel opposing each other, would have denied the motion for change of venue made upon the ground of petitioners’ residence in another county, the order transferring the case upon stipulation could not have been made upon the ground of petitioners’ residence in another county; and, indeed, that counsel for petitioners would not have been so ill-informed as to have based his motion upon such ground, nor counsel for plaintiffs to have stipulated to granting such motion.
The following four cases, however, show that courts do not always act as being well-informed in the law, and that counsel are not always well-informed.
In each of those four cases, the affidavits in support of a motion for change of venue were insufficient as to the grounds upon which the motion was made but nevertheless the motion was granted: Maxwell v. Perkins, 116 Cal.App.2d 752 [255 P.2d 10]; Detels v. Lawrence, 54 Cal.App. 275 [201 P. 608]; Tarman v. Sherwin, 189 Cal.App.2d 49 [10 Cal.Rptr. 787, 85 A.L.R.2d 989]; People v. Sexton, 24 Cal. 78.
Thus in Maxwell v. Perkins, supra, 116 Cal.App.2d 752, the affidavits did not negate the non-residence in the county in which the action was brought of all defendants, two of whom in fact were resident therein. The subsequent attempt of the judge who signed the order of transfer to set it aside, because the motion should not have been granted, was held error.
In Detels v. Lawrence, supra, 54 Cal.App. 275, an order of dismissal under section 581b was sustained where an action brought in San Francisco County was ordered transferred [46]to Marin County, the place of residence of the defendants, although one cause of action involved title to real property part of which was in San Francisco County. No appeal having been taken from the order of transfer, the court, on appeal from the order of dismissal, said, at page 276:
“. . . the nature of the action and the propriety of its transfer are not matters for our consideration upon this appeal.”
In People v. Sexton, supra, 24 Cal. 78, 82-83, the court said:
“It may be admitted that the defendant in the action did not by his affidavit show any cause for a change of the place of trial, and still it does not result from this that the Court had not the power to grant the change upon the defendant’s application.
“In making the order changing the venue, the Court acted judicially upon a matter within its cognizance.”
In Tarman v. Sherwin, supra, 189 Cal.App.2d 49, 53, the court said:
“We have also reviewed the affidavits filed on the previous motion. While they do not present a strong case for transfer, plaintiff made no attack upon the order granting change of venue. He did not move to vacate the order, as he might have done if grounds under Code of Civil Procedure, section 473, existed. (Badella v. Miller, 44 Cal.2d 81 [279 P.2d 729]) ... . As a result, he cannot now attack that order and we must assume it to be sound.”
Again, in Gottesfeld v. Richmaid Ice Cream Co., 115 Cal. App.2d 854 [252 P.2d 973], the affidavits in support of the motion for change of venue did not negate the nonresidence of all defendants in the county in which the action was commenced ; the moving party questioned whether a resident had been in good faith made a party. The presence of a resident defendant against whom the complaint states a cause of action is not conclusive, on a motion for change of venue based upon the residence in another county of the moving party, that the county in which the action was filed was the proper county. The court, in granting the motion, said, at page 860:
“This is a question for the trial court to determine from the face of the complaint and the affidavits submitted by the parties.” See also California Agency v. Fontana, 61 Cal.App.2d 648, 653 [143 P.2d 507], where it is said:
“. . . the mere fact that a complaint states facts sufficient to impose a joint and several liability upon all defendants [47]including the resident defendant is not conclusive upon the hearing for a motion for change of venue when the motion is made upon the ground above stated.”
Leaving aside the question whether a stipulation between the parties, there having been no motion for change of venue, would have been sufficient for an order of transfer, it is clear that the stipulation and order here involved were not such a stipulation and not such an order.1
The fact that the order of transfer was based upon a stipulation that the motion for change of venue be granted does not eliminate the grounds upon which the change of venue was sought and the motion therefor made and granted.
In the action here involved the sufficiency of defendants’ affidavits to establish that Los Angeles County was the proper county for trial of the action might possibly have been corrected had the granting of defendants’ motion not been stipulated.
It is within the discretion of the court to permit an amendment of the affidavit of merits (Jaques v. Owens, 18 Cal.App. 114 [122 P. 430]) and of the affidavit of residence (Gardner v. Steadman, 31 Cal.App. 447, 449-450 [160 P. 834]).
”... the defendant could have amended the defective affidavits to make them conform to the legal requirements. . . .
“Where a procedural defect could be corrected in the trial court, and no objection is made in that court, it is generally held that the complaining party has waived his right to object ....
”... where a complaint fails to allege facts sufficient to deprive the defendant of his normal and important right to a trial in the county of his residence, and the defendant, by motion, calls this defect to the attention of the trial court, but fails to comply with all of the provisions of section 396b, and the plaintiff fails to object to this defective compliance in the trial court, the plaintiff must be deemed to have waived the defect, ...” (Nanny v. Ruby Lighting Corp., 108 Cal. App.2d 856, 859-860 [239 P.2d 885].)
[48]It was said in Westover v. Bridgford, 25 Cal.App. 548, 549, 550 [144 P. 313] :
“Plaintiff claims that in order to entitle the defendants to a change of venue, under the provisions of that section of the code [§ 395], they should have stated in their notice the particular provision on which they relied as the ground of their motion.
“. . . plaintiff, having appeared and contested the motion without raising this objection, must be deemed to have waived the claimed defect in the notice.”
The same may be said of a plaintiff who, instead of contesting the motion, stipulates that it may be granted.
The stipulation for the granting of the motion eliminated the necessity of passing upon the merits of the motion.
“So long as the stipulation was not illegal nor contrary to public policy, it was the duty of the probate court to consider as finally settled all matters therein agreed to.” (Estate of Howe, 88 Cal.App.2d 454, 458 [199 P.2d 59].)
The judgment of a court of competent jurisdiction entered upon a stipulation of the parties has the same effect as if the action had been tried on the merits. (Guaranty Liquidating Corp. v. Board of Supervisors, 22 Cal.App.2d 684, 686 [71 P.2d 931].)
A judgment based upon a stipulation should not say something other than what the stipulation provides. (People’s Ditch Co. v. Fresno etc. Co., 152 Cal. 87, 90 [92 P. 77].)
That the affidavits in support of the motion for change of venue might be insufficient is in this respect immaterial. Thus it has been held that a stipulation for a judgment in accordance with the prayer of a complaint waives a defect in matter of substance in the complaint. (Pacific Paving Co. v. Vizelich, 1 Cal.App. 281, 282-283 [82 P. 82].)
In construing the order of transfer, resort may be had to the notice of motion. (Western Greyhound Lines v. Superior Court, 165 Cal.App.2d 216, 219 [331 P.2d 793].)
Where a motion is based solely upon a certain ground, it can be granted upon no other ground. (Cox v. Tyrone Power Enterprises, Inc., 49 Cal.App.2d 383, 389 [121 P.2d 829].)
Affidavits accompanying the notice of motion, or affidavits and points and authorities filed with the notice may be considered as amplification of grounds stated in the notice. (Tarman v. Sherwin, supra, 189 Cal.App.2d 49, 51, 52; 85 A.L.R.2d 989.)
[49]An order in general terms made in response to a motion is made upon the merits if the court had jurisdiction to pass upon the merits. (American Well etc. Co. v. Superior Court, 19 Cal.App. 497, 499 [126 P. 497].)
The order denying petitioners’ motion to dismiss is supportable only by the following questionable propositions:
1. That it was proper for the court, in deciding the motion to dismiss, to pass upon the merits of the motion for change of venue, which had not been ruled upon because the parties had stipulated the motion might be granted; and in passing upon the motion to dismiss, to consider affidavits as to the residence of certain defendants, prepared for the occasion, that had not been before the judge who made the order of transfer.
2. That because the order transferring the cause to Los Angeles County was based upon stipulation, it could not have the effect of an order granting a motion for change of venue to the proper county under section 395, Code of Civil Procedure.
3. That a stipulation that a motion be granted and an order made pursuant to the stipulation can be said to have been made on grounds other than those upon which the motion was made, when on their face the stipulation and order show no other grounds.
4. That a motion for change of venue showing that it is on the ground that a moving party’s residence is in the county to which he asks the transfer be made is not upon the ground that such county is the proper county for trial under section 395, Code of Civil Procedure.
I would grant the petition.
There are dieta that the superior court has no power to change the place of trial of an action, except in the eases and for the causes provided by express law. (See Gridley v. Fellows, 166 Cal. 765, 768 [139 P. 355]; McFarland v. Martin, 144 Cal. 771, 774 [78 P. 239].) There are also dicta in support of a theory that an order for transfer may be made based upon the stipulation of the parties arrived at apart from any statutory grounds. (See Wessel v. Superior Court, 177 Cal. 308, 310 [170 P. 606]; General Motors Accept. Corp. v. Codiga, 62 Cal.App. 117, 119 [216 P. 383].)