Nakanishi v. Policy Holders Life Insurance

PARKER, J.,

pro tem.

This is an appeal by defendant from an order denying its motion for a change of venue from Contra Costa County to Los Angeles County. The action was to recover upon life insurance policies.

The complaint set up the contracts of insurance

in Tiaec verba,

alleged the death of the insured in the county of Contra Costa, and that plaintiff was the beneficiary under the policies. Upon its first appearance defendant demanded a change of the place of trial, and filed its written demand and affidavit of residence as well as the required affidavit of merits. No point is made by respondent as to the procedure. The affidavit upon which the demand for change of venue is based may be summarized. It is set forth that the contracts of insurance upon which the action is based were issued upon the signed applications of one Yuldchi Arii; that the applications were received by defendant in the city of Los Angeles; that the policies were issued from Los Angeles ; that the policies were issued and the contracts consummated in Los Angeles by delivery of the contracts at Los Angeles, and that said contracts were to be performed, and the liability thereon arose, at Los Angeles, where defendant has its principal and only place of business; further, that the obligations of the contracts of insurance were to be performed in Los Angeles; that in Los Angeles defendant rejected and repudiated any claim of liability, and that therefore the breach, if any, occurred there; that defendant at all times has had its principal place of business in Los Angeles and has never had, nor has it now, any place of business or resident agent or agency in Contra Costa County. As before stated, the affidavit contained further the statement of merits.

The court below permitted plaintiff to file counter-affidavits. Appellant strenuously contends that this action of the trial court was erroneous, and that these counter-affidavits must be entirely disregarded. The counter-affidavits were not made to retain the case in Contra Costa County on account of convenience of witnesses or on any ground which

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conceded the right of removal. The sole purpose of the counter-affidavits was to negative the averments of defendant’s affidavit and to fully present the issues tendered. The objection of appellant is that no counter-affidavits are permissible upon a motion to change venue until such time as answer has been made and issue joined. Appellant has misconstrued the purport of the cited cases. The point of the authorities is that where a motion to change the venue is resisted on the ground of convenience of witnesses, it is first necessary that issue be joined in order that a court may determine whether any witnesses are necessary, and if so, then what facts are incident to the issues raised. Such is not the case here and the authorities cited have no application. Where venue is to be determined from the issues tendered on the moving party’s affidavit, it has been recognized as a proper practice to permit counter-affidavits. For instance, if a defendant should move on the sole ground of residence, it would surely be permissible to show the actual residence by counter-affidavit; this merely as an illustration. Other situations often arise, and the practice permits and encourages a full hearing of the facts determinative of the venue.