Gridley v. Fellows

SHAW, J.

The plaintiff appeals from an order granting the motion of the defendant to change the place of trial from Fresno County to Los Angeles County.

The action was to recover damages for injuries alleged to have been caused to the person of the plaintiff by reason of certain alleged negligence of the defendant. The injury occurred in Fresno County. The defendant, at the time the action was begun, resided in Los Angeles County and has resided there ever since that date. The motion to change the place of trial was based solely on the fact of the defendant’s residence in Los Angeles County, and upon section 395 of the Code of Civil Procedure.

Under that section as it read prior to the taking effect of the amendment of April 10, 1911, that is, prior to June 9, 1911, the defendant would undoubtedly have had the right to demand such change of place of trial for that cause. This action was begun on April 3, 1913, and hence it is governed by the section as amended in 1911. (Stats. 1911, p. 847.) The following is the part of the section material to the question, the portion added by the amendment being inclosed in parentheses:

“In all other cases, the action must be tried in the county in which the defendants, or some of them, reside at the time of the commencement of the action (or if it be an action for injury to person, or property, or for death from wrongful act, or negligence, in the county where the injury occurs, or the injury causing death occurs, or in the county in which the defendants, or some of them, reside at the time of the commencement of the action).’’

' It will be observed that,in the amended portion of the section it is provided that the action may be tried, either in

[768]

the county where the defendant resides at the time it is begun, or in the county where the injury occurred. No preference is given to one over the other. Either county is therefore declared to be “the proper county” for the trial, by this amendment. The superior court has no power to change the place of trial of an action, except in the cases and for the causes provided by express law. In personal actions of this character the only authority to change the venue is that given by section 397 of the Code of Civil Procedure. This section authorizes such change for the following causes: “1. When the county designated in the complaint is not the proper county; 2. When there is reason to believe that an impartial trial cannot be had therein; 3. When the convenience of witnesses and the ends of justice would be promoted by the change; 4. When from any cause there is no judge of the court qualified to act.” In this case it is not claimed that any cause existed except the first,—namely, that Fresno County was not the proper county. Hence, unless it can be said that the county where the injury was committed is not “the proper county” in cases where the defendant resides in another county at the time the action was begun, the county of Fresno was one of the counties in which the action might be begun and tried, it was a proper county and there was no authority in the court to order a change to Los Angeles County on the ground that the latter, alone, was “the proper county.”