Archer v. Superior Court

California Court of Appeal Apr 16, 1962 No. Civ. 20401Published

Before: Shoemaker

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Holding. The court held that because the plaintiffs failed to establish that the third and fourth causes of action, which were based on a written contract executed in Sonoma County, fell within any statutory exception to the defendant's right to be sued in their county of residence, the motion for change of venue must be granted.

Issues

Whether the trial court erred in denying a motion for change of venue when the plaintiffs failed to meet their burden of showing that the third and fourth causes of action were triable in Humboldt County.

Disposition. remanded

Quotations verified verbatim against the opinion

“if the defendant is entitled to a change of venue on any one of the causes of action alleged in the complaint, the motion must be granted as to all.”

“Where a defendant has made a proper showing of nonresidence, the burden is on the plaintiff to show that the ease comes clearly within one of the statutory exceptions to the general rule that actions are triable in the place of the defendant’s residence.”

SHOEMAKER, J.

An order refusing petitioners Robert and Inconia Archer’s motion for change of venue having been entered by the Superior Court of Humboldt County, said petitioners seek a writ of mandate directing the trial court to vacate said order and to enter an order changing the place of trial to the County of San Mateo, the residence of petitioner Robert Archer.

The record shows that on April 5, 1961, plaintiffs Nicholas and Elva Vulich filed a complaint against defendants Robert and Inconia Archer in the Superior Court of Humboldt County. The complaint purportedly set forth four distinct causes of action, the first two of which are framed as common counts, the third and fourth upon a written instrument. On June 12, 1961, defendants moved respondent court to change the venue of the action from Humboldt County to San Mateo County, basing said motion on affidavits of merit and residence. The residence of the defendant Robert Archer in San Mateo County is not questioned, or that Inconia Archer has never been a resident of Humboldt County.

Plaintiffs filed a counteraffidavit in support of their position that Humboldt County was the proper county for the trial of the action. Such procedure is proper, as is held

[419]

Emo

Massae

(1962) 200 Cal.App.2d 473, 475 [19 Cal.Rptr. 652] : “The first question is whether in a change of venue proceeding, an affidavit may be filed to supplement a common count. That this may be done is established by

Diepenbrock

Auslen,

185 Cal.App.2d 747 [8 Cal.Rptr. 659], at page 750, wherein the court held that where a complaint is silent as to the details of the elements of a common count, such facts may be shown by affidavit. In

Clapp

Kramer,

Archer v. Superior Court

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SHOEMAKER, J.

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