Griffin & Skelly Co. v. Magnolia & Healdsburg Fruit Cannery Co.

Harrison, J. The plaintiff commenced this action in the superior court of the city and county of San Francisco against the defendants to recover from the corporation defendant certain damages that had resulted from its breach of contract with plaintiff, and to recover from the defendant, Merchant, upon an allegation that he is a stockholder in the corporation defendant, his proportionate amount of the corporate liability of his codefendant. The principal place of business of the defendant corporation is in the county of Sonoma, and the residence of Merchant is in the same county. Upon an affidavit showing these facts the defendants asked that the place of trial be changed to Sonoma county, and the plaintiff resisted the application upon the ground that the contract between it and the defendant corporation was made in San Francisco. The court [380]denied the motion, and from this order the defendants have appealed.

Section 16 of article XII of the constitution provides: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs, or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases.” It is contended on behalf of the plaintiff that by virtue of this section the action was properly commenced in the city and county of San Francisco, and that the court properly refused to change the place of trial. In Brady v. Times-Mirror Co., 106 Cal. 56, the plaintiff commenced the action in San Diego county against the corporation whose place of business was in the county of Los Angeles, and joined with it, as a codefendant, Otis, whose residence was in the county of Los Angeles. The defendants moved for a change of the place of trial, and, in reversing the order denying their motion we said, in reference to this section of the constitution: “ Under the provisions of this section, if the action had been brought against the Times-Mirror Company alone, the plaintiff’s right to have the action tried in San Diego would be undoubted, but by including in the action other defendants whose residence is outside of the county of San Diego, she waived the right given by this provision of the constitution, and the motion of the defendants must be determined by the provisions of the statute.” (See, also, Smith v. Smith, 88 Cal. 572.)

This provision of the constitution is in entire harmony with the provisions of the Code of Civil Procedure, and raises no conflict therewith. The plaintiff may at all times avail himself of the privilege given by the section, if the only defendant in the action is the corporation; but, if he chooses to join as defendants in the action others whose residence is in a different county, he waives the benefit of the provision. Such joining of