Sure-Grip Skate Wheel Co., Inc. v. Bergin

WOOD, P. J.

Defendant Fred Bergin appeals from an order denying his motion for a change of venue from Los Angeles County to Santa Barbara County.

The verified complaint was filed in Los Angeles Oounty on April 7, 1961. (New section 400 of the Code of Civil Procedure, providing for remedy by mandamus, had not been enacted when this appeal was taken.)

In the first cause of action it was alleged that defendant Fred Bergin is now and at times herein mentioned was doing business as Bergin Skate Co., and Central Skate Co.; that within two years last past, at Lynwood, California, plaintiff sold and delivered goods, wares, and merchandise of the reasonable value of $17,179.09 to defendants, for which they agreed to pay; there is now due and unpaid, on said amount, the sum of $10,556.28.

The second cause of action alleged that within four years past, an account was stated by and between plaintiffs and defendants, whereby it was agreed that defendants were indebted to plaintiff in the sum of $17,179.09; there is now due and unpaid, on said amount, the sum of $10,556.28.

The third cause of action alleged that within four years last past, plaintiff furnished to defendants at their special instanoe and request, upon an open book account, goods, wares, and merchandise of the reasonable value of $17,179.09; there is now due and unpaid, on said amount, the sum of $10,556.28.

Notice of motion for change of venue was filed on June 22, 1961.

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That notice stated that the motion would be made upon the ground that the proper county for the trial of said action is the county in which the defendant Fred Bergin resides, to wit: Santa Barbara County.

One declaration of Fred Bergin (filed June 22, 1961), in

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support of the motion, stated: He is a resident of Santa Barbara County, and has resided in said county for the past 10 months. He served the summons in Santa Barbara County (presumably this was intended to state that he was served with summons in that county). He denies that plaintiff ever sold or delivered goods, wares, or merchandise to him at Lynwood, California, or that he ever entered into any type of contract, implied or otherwise, with plaintiff in Los Angeles County.