Bartholomae Oil Corp. v. Associated Oil Co.

SEAWELL, J.

Defendant, Associated Oil Company, a corporation having its principal place of business in the city and county of Ban Francisco, appeals from an order of the court below denying its motion for a change of venue to the county of Los Angeles in an action brought against it in the superior court of the city and county of San Francisco by the Bartholomae Oil Company, a corporation having its principal place of business in the city of Los Angeles. The motion was made after issue had been joined by the filing of an answer and after plaintiff had demanded a jury trial, and was based upon an affidavit whereby defendant sought to show that the convenience of material witnesses would be served by the change. (Code Civ. Proc., sec. 397, subd. 3.)

The complaint alleges the conversion by defendant of a certain oil derrick and pipe and fittings, to the damage of plaintiff in the sum of $6,050. Defendant in its answer set up ownership in itself and in “three separate and affirmative defenses” set forth certain facts upon which it relied to establish its title. The property alleged to have been converted was located upon land known as the Whittier Sewer Farm situate in the city of Whittier, county of Los Angeles, and, according to the allegations of the answer, was property affixed to and permanently resting upon the premises which became the property of the individuals from whom defendant purchased it upon the failure of plaintiff to remove it from said land within the ninety-day period allowed by the terms of “an agreement and partial assignment” entered into between defendant’s transferors and the persons through whom plaintiff derived title, although all other property upon said premises was removed within the time allowed.

Defendant in its affidavit for a change of venue offered to prove the facts concerning the failure of plaintiff to remove the property here sued for, upon which it relies to establish its title, by witnesses therein named who reside in the county of Los Angeles and who, it is averred, are professional and business men who would be greatly inconvenienced by coming to San Francisco for trial. According to the averments

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of the affidavit, the witness Goodell was assistant superintendent of the Whittier Sewer Farm on which the property sued for was located and observed the premises every day; the witness Thomas is superintendent of the Santa Fe Springs Division of the defendant and inspected the property on the premises in April, 1924, on which date all other property had been removed; the witness Ainsley is head rig builder for defendant and also inspected the property in April, 1924, and will testify to its value being less than the amount named in the complaint; the witness Kemmerer, a city trustee of Whittier and chairman of the sewer farm committee, visited the premises and inspected them frequently ; the witness Hanawalt, as general foreman in charge of construction of a city sewer system on the property, resided on the premises and worked there daily between June 4, 1923, and April 8, 1924; the witness Smullin, in the business of drilling oil wells, the witness Crossen, a well driller and rig builder, and the witness Kohler, formerly general superintendent of the La Habra Midway Oil Company, all of whom are familiar with the property here sued for, will testify to its reasonable value.