Causley v. Superior Court

DRAPER, P. J.

The motion for change of venue from Sonoma County to San Francisco was improperly granted.

The action is upon a promissory note of defendant corporation. The verified complaint sets out the note as an exhibit “by reference made a part hereof.” This note provides that it is to be paid “at Santa Rosa, California.” It is signed by the individual defendants as president and secretary of the obligor corporation. A note so incorporated by reference becomes a part of the complaint, which thus alleges its contents (see

Byrne

v.

Harvey,

211 Cal.App.2d 92, 103 [27 Cal.Rptr. 110]). Hence the complaint directly alleges that the obligation of that note “is to be performed” in Sonoma County, in which Santa Rosa lies.

A corporation may be sued in the county where the contract is to be performed (Cal. Const., art. XII, §16). The only

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alleged obligation of the individual defendants is that upon the note itself. But contract actions against individuals also are properly brought in the county where the “obligation is to be performed” (Code Civ. Proc., §395;

Anderson

v.

Heacock,

147 Cal.App.2d 27 [304 P.2d 155]). The provision of the note requiring payment “at Santa Rosa, California” adequately establishes that city as the place of performance, whether by the corporation or the individuals.

It is true that as to an individual defendant the “county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary” (Code Civ. Proc., § 395). Since such a contract must be special and in writing, it cannot be implied. The code requirement of specification of the place of individual performance is not met when the very obligation sued upon arises only from an implied contract