Connell v. Bowes

California Court of Appeal Feb 6, 1942 No. Civ. 12012Published

Before: Ward

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Holding. The court affirmed the denial of a second motion for change of venue and the denial of relief under section 473 of the Code of Civil Procedure, holding that a second motion for venue based on grounds available during the first motion is discouraged and that the trial court did not abuse its discretion.

Issues

Whether a second motion for change of venue may be granted when the grounds were available during the first motion.
Whether the trial court abused its discretion in denying relief under section 473 of the Code of Civil Procedure to amend an affidavit of merits after the initial venue motion was denied.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A second motion for a change of venue should be discouraged if the complaint and the conditions remain unchanged.”

“It was never contemplated that determination of the merits of an action should be delayed by repetition of a motion for change of venue when it appears that the second motion is based upon a ground that could have been presented upon the first motion.”

“The court in its discretion had a right to weigh the statements in the second affidavit against the allegations of the complaint, and its finding will not be disturbed unless an abuse of such discretion appears.”

WARD, J.

Appeal by defendants from two orders-one 0denying their motion for a change of venue, and the other denying an application for relief under the provisions of section 473 of the Code of Civil Procedure.

The action is one to compel the specific performance of an alleged contract for the sale by defendants Bowes of 2,500 shares of the stock of defendant hotel corporation to plaintiff. The complaint alleges that the contract is in writing, was entered into in Alameda County and provides for the delivery of the stock upon the payment of a specified sum on or before January 2, 1945; that on the 25th day of July, 1940, in the county of Alameda plaintiff tendered the purchase price, but defendants failed and refused to deliver the stock. Appellants filed a demurrer and notice of motion for change of venue, accompanied by affidavit, averring the residence of all the defendants in the city and county of San Francisco. No reference was made in the motion or in the supporting affidavit to the allegation in the complaint that the contract was entered into in the county of Alameda. The motion was denied. No appeal was taken from the order, which has become final. Subsequently defendants filed a second motion for change of venue to the city and county of San Francisco, also based upon the residence of defendants therein; in addition they averred that the contract was entered into, and to

[544]

be performed, in. said city and county; they denied the allegation in the complaint that it was entered into, or to be performed, in the county of Alameda. The second motion was timely and the supporting affidavit set forth the original and a new statement of facts.

The right to a change of venue is generally determined by the allegations of the complaint and the condition of things at the time the parties claiming the change first appear in the action. (Remington

S. M. Co.

Cole,

62 Cal. 311;

Story

Christin,

Connell v. Bowes

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WARD, J.

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