Holstein v. Superior Court

California Court of Appeal Aug 19, 1969 No. Civ. 9717Published

Before: Coughlin

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Holding. The court held that defendants were entitled to a change of venue to the county of their residence because the plaintiff's action, being in the nature of an independent creditor's bill, did not fall under any statutory exception to the general venue rule.

Issues

Whether an action in the nature of a creditor's bill is an independent proceeding or a continuation of supplementary proceedings to execution.
Whether defendants are entitled to a change of venue to the county of their residence when the complaint fails to establish a statutory exception.

Disposition. Writ of mandate issued.

Quotations verified verbatim against the opinion

“Under the statutorily prescribed general rule (Code Civ. Proc., § 395, subd. (1)), a defendant, upon demand, is entitled to have an action tried in the county of his residence”

“Where a change of venue should be granted as to one cause of action in a complaint, it should be granted as to the whole complaint.”

COUGHLIN, J.

Petitioners are defendants in a complaint filed in the Superior Court of San Diego County by Kearny Villa Construction Company, Inc., Real Party in Interest, as plaintiff; moved the superior court for a change of venue to Orange County upon the ground each of them is a resident of that county; and on denial of their motion, petitioned this court for a writ of mandate directing the superior court to transfer the action as requested.

The complaint purports to state two causes of action. In the first thereof the plaintiff therein, i.e., real party in interest in this proceeding, seeks to recover the amount of an indebtedness which it claims the defendants therein, i.e., petitioners in this proceeding, owe Cabrillo Palisades B Inc., and allege a money judgment was entered in its favor against Cabrillo Palisades B Inc., by the Superior Court of San Diego County ; defendants are each indebted to Cabrillo Palisades B Inc., in a sum in excess of $5,000; and it “has satisfied all of the substantive and procedural prerequisites to bringing an action under Section 720 of the Code of Civil Procedure. ’ ’

In the second cause of action the plaintiff seeks to include the defendants as judgment debtors in the judgment against Cabrillo Palisades B Inc., and also in another judgment by the Superior Court of San Diego County in favor of plaintiff against Cabrillo Palisades A Inc., on the theory defendants and the judgment debtors were the same legal entity.

Each of the defendants, petitioners herein, at all pertinent times was a resident of the County of Orange.

[710]

An action by a judgment creditor against a person allegedly indebted to the judgment debtor to recover the amount of the debt, where the person allegedly owing the debt denies the indebtedness, is an action in the nature of a creditor’s bill; is an equitable proceeding; is independent of the action in which the judgment was obtained; and, although recognized in section 720 of the Code of Civil Procedure, is not a part of the statutory proceedings supplemental to execution.

(Wulfjen

Dolton,

Holstein v. Superior Court

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COUGHLIN, J.

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