Finance & Construction Co. v. City of Sacramento

CURTIS, J.

This action against the defendant, the City of Sacramento, was filed in the county of Yolo. Said defendant appeared therein and moved the court for a change of the place of trial of said action upon the ground that the plaintiff was either a resident of or was doing business in said county of Yolo. The motion was granted and an order made changing the place of trial of said action from said county of Yolo to the county of Napa. From this order plaintiff has appealed. The order was granted under the authority of section 394 of the Code of Civil Procedure and was based upon the following state of facts: The action was brought against the City of Sacramento, the defendant, in a county other than that in which said city is situated, said city being situated in the county of Sacramento, and the action having been instituted in the county of Yolo; the action was brought to recover from said city damages alleged to have been sustained by reason

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of the unlawful diversion by said City of Sacramento of the waters of the Sacramento River from said river on to plaintiff’s land situated in the county of Yolo; there were two unlawful diversions complained of, one of which plaintiff alleges damaged a crop of barley growing upon one thousand acres of plaintiff’s said land, one-fourth of which crop plaintiff was the owner of; the other diversion complained of destroyed the pasturage grown upon land belonging to plaintiff. Plaintiff is a corporation with its principal place of business in the city of San Francisco. It was therefore not a resident of said county of Yolo. The foregoing facts all appear in plaintiff’s complaint, and were relied upon by defendant at the time of making said motion without any affidavit or other showing of any additional facts. The question presented, therefore, is whether or not a person who owns a tract of land upon which he is growing pasturage and a crop of barley is “doing business” in the sense in which this expression is used in said section 394 of the Code of Civil Procedure.

The evident purpose of this section of the code, as was held in

City of Stockton

v.

Wilson,

79 Cal. App. 422, 424 [249 Pac. 835, 836], “is to guard against local prejudices which sometimes exist in favor of litigants within a county as against those from without and to secure to both parties to a suit a trial upon neutral grounds.” It is apparent from the terms of this section of the code that the legislature was of the opinion that a person doing business in a county would have an unfair advantage over a city situated without said county in the trial of an action in which such person and such city were arrayed against each other. It accordingly provided that in an action in which the parties were so situated the city might have the place of trial of said action changed to some other county where such condition did not prevail. The section is remedial in its purpose and should for that reason receive a liberal construction. Strictly speaking, it might be said that persons “doing business” are confined to those engaged in merchantable pursuits, such as merchants or others carrying on trade or commerce and it is in this sense, plaintiff contends, that the words are used in said section 394. The expression “doing business” has frequently been the subject of judicial determination, principally in proceedings wherein the right