Rothschild v. Superior Court

DRAPER, P. J.

This venue question arises in a personal injury action. The complaint alleges that plaintiff was a

[779]

passenger in a bus of defendant Western Greyhound Lines, real party in interest, when, near Tucson, Arizona, it lurched, throwing her from her seat to the floor. Commenced in Los Angeles County, the action was transferred to San Francisco on defendant’s motion (Code Civ. Proc., § 397, subd. 1). After interrogatories revealed the names of witnesses, plaintiff moved for change of venue to Los Angeles on the ground that “the convenience of witnesses and the ends of justice would be promoted by the change” (Code Civ. Proc., § 397, subd. 3).

Plaintiff filed affidavits of her doctor and of Adolph Rothschild (relationship to plaintiff undisclosed by either side), who was a passenger in the bus. Both live and work in Los Angeles, and aver that attendance at trial in San Francisco would inconvenience them. Other than Rothschild and plaintiff there were but two passengers in the bus. Their declarations were filed by defendant. One lives in Ohio and the other is in an army unit in Germany. Each says only that “it would be no more inconvenient” to appear in San Francisco than in Los Angeles.

The trial court denied the motion, plaintiff filed timely petition for writ of mandate (Code Civ. Proe., § 400) and we issued alternative writ.

Defendant fails to make a case for retention in San Francisco, since its witnesses can appear as conveniently in either county. But the burden of establishing convenience is on the moving party

(Flanagan

v.

Flanagan, 175

Cal.App.2d 641, 643 [346 P.2d 418]). Thus we must examine the showing of plaintiff.

The general rule that experts are to be disregarded in determining convenience of witnesses does not apply to one who has direct knowledge of relevant facts

(Security Investment Co.

v.