Hecker v. Ross

SHEPARD, J.

This is an action brought to partition 80 acres of land located in San Diego County. Defendant cross-complained, denying plaintiff’s title and alleging superior title in himself. Defendant moved to change the place of trial to Los Angeles County on the ground of convenience of witnesses and to promote the ends of justice. On conflicting affidavits, the trial court denied the motion for change of venue, and defendant appeals.

Defendant, appellant herein, contends that the trial court abused its discretion in denying the motion for change of venue.

From the record before us, it appears that in support of his motion for change of venue, defendant filed an affidavit claiming, in general substance, that he will need at the trial four witnesses who are all in the neighborhood of or over 80 years of age and who all reside in Los Angeles County; that great hardship will be caused by compelling them to attend a trial in San Diego County; that he expects to prove by such witnesses that defendant represented to them that at the time when plaintiff purchased certain interests in the land here in question at a tax sale, he was acting on behalf of the Anna Hecker Trust; that plaintiff purchased at such tax sale in violation of his trust duties; that plaintiff permitted the trust property to become tax delinquent as a part of a tax scheme to acquire the land for himself in violation of his trust duties; that he concealed such actions from the trust beneficiaries; and that the convenience of witnesses and the ends of justice will be promoted by a change of venue to Los Angeles County.

The counteraffidavit on behalf of plaintiff sets forth that three other actions have already been tried and judgment rendered in San Diego County involving the same land, the same parties, and some of the same contentions, naming said actions; that three other witnesses who are necessary for plain

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tiff’s case reside in San Diego County and will be inconvenienced if they have to attend and testify in Los Angeles County; that the records of the other actions referred together with the records of the tax collector’s office, the county auditor’s office, and certain escrow instructions to a San Diego title company, are all located in San Diego County and are necessary for plaintiff’s case; that the claimed inconvenience to defendant’s witnesses is not as great as claimed by defendant ; that at least three of said defendant’s witnesses frequently visit a relative in San Diego County and two of said witnesses own property in San Diego County which they visit occasionally. Plaintiff also claims that three of defendant’s witnesses are not cognizable on this motion for change of venue because they are real parties in interest as beneficiaries of the trust here claimed by defendant to be involved; that plaintiff will stipulate to the taking of depositions of all defendant’s witnesses at any time desired.