Stokes v. Newsom

California Court of Appeal Dec 10, 1948 No. Civ. 7490Published

Before: Peek

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Holding. The court held that the trial court properly denied the motion for a change of venue because the complaint's fourth cause of action, alleging fraud by both the resident and nonresident defendants, established a proper basis for venue in the county where the resident defendant resides.

Issues

Whether the allegations of a contract breach were sufficient to establish venue in Stanislaus County under Code of Civil Procedure section 395.
Whether the inclusion of a resident defendant as a nominal party precludes venue in the county of his residence when the nonresident defendant moves for a change of venue.
Whether the fourth cause of action for fraud sufficiently supports venue in the county of the resident defendant's residence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“by virtue of the fourth cause, which is based upon an alleged fraud of the resident defendant Coffee and the nonresident defendant and appellant Newsom the action is properly triable in Stanislaus County”

“the good faith of the pleader and the sufficiency of the complaint are not to be denied upon a motion for a change of venue unless at first blush it is clearly apparent that the allegations of fact concerning the resident Coffee are in nowise related”

PEEK, J.

This is an appeal by the defendant Newsom from an order denying his motion for a change of venue from Stanislaus County to the city and county of San Francisco, his place of residence.

The complaint, which is in four counts, states in the caption that it is an action by “Jake Stokes and C. L. Coffee, doing business under the firm name and style of Goodman Service, and Jake Stokes v. William A. Newsom, C. L. Coffee” and various fictitious persons.

The material allegations of the first cause of action are that the plaintiffs as partners under said fictitious firm name

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were engaged in the general trucking business in Stanislaus County; that Coffee wrongfully excluded Stokes from the partnership business and possession of the partnership property and in general committed acts in violation of their partnership agreement; that Coffee refused to join as a plaintiff and refused to consent to the prosecution of the action and that at all times Coffee was a resident of Stanislaus County. It was also alleged that a verbal contract, which was “to be performed in the City of Modesto, County of Stanislaus, State of California” was entered into by Stokes and Coffee with the defendant Newsom whereby the assets of the partnership were to be conveyed to Newsom who agreed to sell the same to William W. Miles and Pat L. Nolet, copartners doing business as Miles and Sons Trucking Service for the sum of $220,000, the buyers to assume an indebtedness of $181,000; that the balance of the purchase price, $39;000 was to be deposited in escrow at the Modesto Branch of the Bank of America National Trust and Savings Association; that out of said balance Newsom was to pay certain partnership debts, leaving a balance of $30,808.05 to be paid by Newsom to Stokes and Coffee; that said sale was completed, but that Newsom has refused to pay said balance to them.

The material allegations of the second cause of action, which incorporated by reference most of the allegations of the first cause of action, are that Newsom received the said balance of the purchase price as agent of Stokes and Coffee, that he agreed to pay the same to them but has failed to do so. However, said second cause did not incorporate that portion of the first cause relative to the performance of the agreement in Stanislaus County nor was there any separate allegation to that effect.

Stokes v. Newsom

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PEEK, J.

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