Daneri v. City of San Diego

LANGDON, P. J.

This is an appeal by the defendant from an order denying its motion for a change of the place of trial of this action. The plaintiff, a resident of San Diego County, brought this action against the city of San Diego to recover damages for the destruction of and injury to real and personal property owned by the plaintiff and situated in the county of San Diego. The injury was alleged to have been caused by reason of the defective construction and operation of the lower Otay dam and reservoir owned and operated by the defendant, which overflowed, causing great injury to adjoining property.

The complaint was filed in January, 1918, in the county of San Bernardino. In May, 1919, defendant filed a demurrer to the complaint, and, later, filed a motion to strike certain allegations from the plaintiff’s amended complaint. After the demurrer had been overruled and the motion to strike out portions of the complaint had been denied, the defendant filed its written motion to have the action transferred for trial from said county of San Bernardino to a county other than the county of San Diego under the provisions of section 394 of the Code of Civil Procedure.

[1]

The respondent herein has not seen fit to favor us with a brief in this matter setting forth his position with regard to the propriety of the order from which the appeal was taken; and we can only surmise that the motion was resisted in the lower court by the plaintiff upon the theory that it was made too late, because it was not filed at the time the defendant filed its demurrer to the complaint. We know of no reason for the denial of the motion of the defendant. The theory above set forth is without merit because the motion was not made under the provisions' of section 396 of the Code of Civil Procedure, and was not a motion upon the ground that the action was not commenced in the proper county, and did not ask that the action be transferred to the proper' county.

[564]

It has been held in the case of

Mono Power Co.

v.

Los Angeles,

33 Cal. App. 675, 682 [166 Pac. 387], that the only-case in which it is necessary for the defendant to make such a motion at the time of first appearance is the case where the motion is upon the ground that the action has not been brought in the proper county. It is clearly stated in said last-mentioned ease that in all other cases of change of place of trial it is not necessary that the motion be made at the time of first appearance.