Strassburger v. Santa Fe Land Improvement Co.

KERRIGAN, J.

This is an appeal from an order denying an application for a change of the place of trial.

The plaintiff commenced this action in the city and county of San Francisco against the defendants to recover damages for alleged false representations and fraudulent concealments whereby the plaintiff was induced to part with an undivided one-fourth interest in certain lands described in the complaint for a sum greatly less than their value. The two defendants, sued under the fictitious names of John Doe and Richard Roe, have not been served with a summons, nor have they appeared in the action. The corporate defendants appeared by demurrer, and at the same time

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filed and served a demand in writing for a change of the place of trial from the city and county of San Francisco to the county of Los Angeles. They also filed an affidavit of merits, and an affidavit showing substantially that at the time of the filing of the complaint the two corporate defendants were residents of and their principal place of business was and is the county of Los Angeles. It is also averred in said affidavit, but upon information and belief only, that neither of the defendants sued under fictitious names resides in the city and county of San Francisco.

According to the allegations of the complaint the liability of the defendants forming the basis of the action arose in the city and county of San Francisco; and plaintiff’s position is that so far as any right is given by law to a defendant corporation in relation to the place of trial of an action of the character here involved, he is entitled to have the present action tried in the city and county of San Francisco by virtue of the provisions of section 16 of article XII of the constitution of this state. That section reads as follows: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases. ’ ’

It is contended by the appellants, however, that by joining John Doe and Richard Roe as defendants (whom they assume to be individuals and not corporations) the plaintiff waived his right to commence his action in the county in which the alleged liability arose, if such county was not the residence of the defendants or any of them, and that accordingly it was the duty of the trial court to grant the motjpn of the defendant corporation to change the place of trial to the county of their residence or principal place of business upon showing by affidavit that none of the defendants, corporate or individual, resided within the city and county of San Francisco.