Noland v. Noland

SCHAUER, P. J.

Plaintiff appeals from an order changing the place of trial of this action from Los Angeles

[59]

County to Ventura County. The only facts in the record which are pertinent and material on this appeal and hence require recital here are: No affidavit of merits as required by section 396b of the Code of Civil Procedure was filed by defendant, she did file an affidavit of residence, thereby that she was available and could have made an affidavit of merits if the facts justified it and she had been so minded. An additional affidavit bearing the same date as that signed by defendant was filed by one of defendant’s counsel. In it he avers “that he has been acquainted with the facts of the case by the defendant . . . that he believes said facts have been fully and fairly stated to him; that he verily believes that the defendant has a good and substantial defense to the merits in this action; that it is the

bona fide

intention of the defendant to defend the same.” Upon such showing the order cannot be sustained.

No reason is given for failure of the defendant to make her own affidavit of merits; no factual basis is stated for the loyal but apparently gratuitous belief of counsel that the facts were “fully and fairly stated to him.” No acquaintance with the facts of the case is claimed by counsel except that given him by defendant. He does not even assert that his avowed belief that defendant has a good defense is based on a consideration of the facts stated to him by defendant; his belief as to the bona fide intention of defendant is obviously a conclusion and his belief that defendant has a “good and substantial defense

to

the merits” may envision something quite different from a defense

on

the merits.

So far as defendant’s affidavit is concerned the case is similar to that which was before the Supreme Court in

Fernandes

v.