Plum v. Newhart

[74]

THOMPSON (R. L.), J.

This is an appeal from an order granting defendants’ motion for a change of the place of trial for the convenience of witnesses pursuant to subdivision 3 of section 397 of the Code of Civil Procedure.

The plaintiff commenced this suit in Sacramento County, for damages for malicious prosecution. The defendants filed their answer together with an application for a change of venue to Plumas County for the convenience of witnesses. This proceeding was in due form. The plaintiff opposed this motion for a change of venue, and at the same time filed a counter-motion to retain the cause for trial in Sacramento County for the convenience of his witnesses. These motions were heard together. The defendants’ motion for a change of venue to Plumas County was granted. From this order the plaintiff has appealed.

It does not appear there was an abuse of discretion on the part of the trial judge in granting this motion. This suit for malicious prosecution is founded on a charge of grand theft, of which crime the plaintiff was convicted in Plumas County in 1928. The judgment in that case was affirmed.

(People

v.

Plum,

97 Cal. App. 253 [275 Pac. 518].) The affidavits of the defendants which were presented on this motion for a change of venue show the necessity and materiality of the presence of several officers of the justice’s court where the criminal action was instituted, and of several officers of the superior court where the cause was tried in Plumas County, together with a number of other Plumas County witnesses. The affidavits also show the necessity for the presenting of the records of both of these courts upon the defense to this action. It is also alleged the defendants fully and fairly stated to the district attorney of Plumas County the facts upon which he instructed them there was probable cause to believe this plaintiff was guilty of the charge, and that these defendants relied upon his advice in that regard. The trial of this cause in Plumas County will undoubtedly convenience a large number of witnesses.

From the plaintiff’s affidavits in the present proceeding, it appears a number of his witnesses will be convenienced by retaining the trial in Sacramento. It is, however, alleged that eight witnesses who live in Sacramento will testify the