Marcacci v. Continental Baking Co.

DRAPER, P. J.

Defendant appeals from order denying its motion for change of venue. Since the order was made and the notice of appeal filed before the effective date of the 1961 code amendments, the order is appealable (Code Civ. Proc., § 963), and the writ procedure established in 1961 (Code Civ. Proc., § 400) is not available.

. The complaint was filed in Solano County. It alleges that plaintiff purchased land in San Mateo and Contra Costa Counties, constructed a building on each parcel, and leased both to defendant corporation. It is alleged that one written lease fails to include agreed provisions for payment by defendant of taxes and insurance, and erroneously states the rental agreed to be paid if defendant exercises its option to renew. The other lease allegedly omits defendant’s agreement to pay taxes and to pay an increased monthly rental for an addition made after original approval of plans. One cause of action seeks reformation of the San Mateo lease, payment of the additional amounts allegedly due plaintiff for the

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period of defendant’s occupancy to date, and specific performance of the lease as reformed. Another count seeks like relief as to the Contra Costa lease, and still another asks judgment for the amount assertedly expended for the addition to the Contra Costa building. Defendant filed a counterclaim and cross-complaint for damages for alleged defects in construction of the San Mateo building. Defendant moved for change of venue to San Mateo County, on the ground that the action is local in nature and must be tried in a county where one of the parcels of land is located. It is conceded that no jurisdictional issue (Cal. Const., art. VI, § 5) is involved, and that the question is wholly one of venue.

Here the pleadings agree that each lease required all payments to be made to plaintiff in Solano County. Thus that county is a proper one for trial (Cal. Const., art XII, §16), unless this is a “local” action. If the action is local, however, defendant corporation is entitled to transfer of the cause to a county in which some part of the land lies

(Grocers’ etc. Union

v.

Kern County Land Co.,