Pacific Coast Automobile Assn. v. Ahlf

[23]

TYLER, P. J.

Appeal from an order refusing to change place of trial.

The action was commenced in the city and county of San . Francisco. Thereafter application for change of venue was made on the ground that none of the proper defendants in the action were residents of such city and county; that plaintiff had no actual cause of action against certain parties nominally named defendants and such defendants were joined for the fraudulent purpose of depriving the real defendants of their right to have said action tried in the place of their residence.

The action was one for libel based upon three different writings each containing references to the plaintiff corporation to which exception is taken. It is alleged that two of these writings were "written by defendants Deuel and Barnard. The defendant California Farm Bureau Federation is named as their employer. The participation of other defendants in the publication of the alleged libel is made on information and belief. Appellant herein, one of the defendants, made his appearance by filing a demurrer, a demand for a change in the place of trial, together with supporting affidavits. After a hearing the motion was denied. The court below did not indicate on what grounds it denied the motion but it is conceded that it could only have done so on one or all of the following three findings, to wit: 1. The principal place of business of the California Farm Bureau Federation was at the time of the commencement of the action in the city and county of San Francisco. 2. The plaintiff properly and in good faith joined L. S. Wing, a resident of the city and county of San Francisco, as a defendant. 3. The plaintiff properly and in good faith joined Edson Abel, a resident of the last-named city and county, as a defendant. The complaint, on information and belief, alleged the principal place of business of the defendant California Farm Bureau Federation to be in such city and county and likewise on information and belief alleged participation in the acts complained of by defendants Wing and Abel.

It is the contention of appellant that there was no evidence or proof before the trial court as presented by the complaint and affidavits in support of the motion for change of venue to justify the conclusion as to whether or