Kallen v. Serretto

NOURSE, P. J.

Plaintiffs sued in the city and county of San Francisco for damages arising out of an automobile collision which occurred in San Mateo County. The de

[549]

fendants Ed Serretto and wife moved for a change of venue to San Mateo County on the ground that they were both residents of that county. Their motion was denied and they have appealed on typewritten transcripts.

Two fictitious defendants were joined as “First Doe” and “Second Doe”. As to them the complaint alleged that they had “some right, title, or interest in and to defendants’ motor vehicle hereinafter mentioned”. The collision was alleged to have been caused by the fact that

“the defendants

drove and operated a certain motor vehicle . . . in a careless, negligent, and unskillful manner”. After the demurrer and demand for change of place of trial were filed by the two Serrettos the plaintiffs were permitted to file an amended complaint in which it was alleged that “the defendants, acting through said defendant Ed Serretto, drove and operated their motor vehicle, etc.” In the affidavit of plaintiffs’ attorney filed in opposition to the motion for change of place of trial it is averred that “First Doe” is one Irani, a resident of San Francisco. But it does not appear that he was named or substituted as a defendant, and no process was served upon him.

Upon this record appellants insist that they were entitled to a change of the place of trial for several reasons, of which it will be sufficient to consider but two. (1) The right of the moving party to a change depends upon the conditions existing at the time the demand is made. (Mc

Clung

v.

Watt,

190 Cal. 155, 159 [211 Pac. 17, 19].) Hence, the parties defendant “as revealed by the pleadings existing at the time”

(McClung

v.

Watt)