Adams v. Superior Court

California Court of Appeal Apr 16, 1964 No. Civ. 7552Published

Before: Coughlin

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Holding. The court held that while the petitioners were entitled to a change of venue to a neutral county under Code of Civil Procedure section 394, their failure to move for such a change until after their demurrers were submitted for decision constituted a waiver of the right to have the issues of law decided in a neutral county. Consequently, the trial court was permitted to rule on the pending demurrers before transferring the action.

Issues

Whether a motion for change of venue under Code of Civil Procedure section 394 must be made before a demurrer is heard and submitted for decision.
Whether the filing of a motion for change of venue deprives the trial court of the power to rule on previously submitted demurrers.
Whether the petitioners waived their right to a neutral forum for the determination of issues of law by failing to move for a change of venue in a timely manner.

Disposition. granted in part

Quotations verified verbatim against the opinion

“a request for the transfer provided for by that section properly may be made prior to such a hearing.”

“the failure of the petitioners to assert their right to a transfer of the subject action for trial to a neutral county until after their demurrers had been submitted for decision constituted a waiver of that right”

“In the interim between the filing of this opinion and the time when the decision of this court as announced therein becomes final, the Superior Court of the County of Biverside may rule upon the demurrers heretofore submitted for decision.”

COUGHLIN, J.

This is a proceeding wherein petitioners seek alternatively a writ of mandate or prohibition arising out of a denial of their motion for a change of venue, in an action by the County of Riverside against them and other defendants. In the superior court the petitioners had filed demurrers to the complaint; these demurrers had been heard and submitted for decision under an order granting the parties time within which to file points and authorities; petitioners at the time of filing their points and authorities in reply also filed a motion for change of venue under the provisions

[367]

of section 394 of the Code of Civil Procedure; and, thereupon the court heard and denied the motion for change of venue. Apparently no ruling has been made upon the demurrers.

The order denying the subject motion is not appeal-able. (Code Civ. Proc., § 963.) In lieu of an appeal, the petitioners applied to this court for an order to restrain the superior court from proceeding further in the action and to direct the transfer of that action to the County of Los Angeles. In substance, the petition is an application to this court pursuant to the provisions of section 400 of the Code of Civil Procedure.

The petitioners are residents either of the County of Orange or of the County of Ventura. The status of the defendant corporations is not material to a disposition of the issues presented by the instant petition and, for this reason, need not be considered. The action was one to recover damages arising out of an alleged breach of contract. The respondent herein concedes that the petitioners are entitled to have the place of trial of the subject action changed to a neutral county as prescribed by section 394 of the Code of Civil Procedure, but contends that their motion, and the instant application, “is premature and made at an unreason, able time,” because of the pending undetermined demurrers, and that the right to change of venue “does not arise until after ’ ’ the subject action “ is at issue on the facts. ’ ’

Although section 394 of the Code of Civil Procedure does not prescribe the time within which a party to an action therein designated may move that it be transferred for trial to a neutral county, such a motion must be made within a reasonable time.

Adams v. Superior Court

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COUGHLIN, J.

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