Walker v. Wells Fargo Bank & Union Trust Co.

SPENCE, Acting P. J. Plaintiffs, as beneficiaries of a testamentary trust, brought this action in the Superior Court in Contra Costa County against defendant Wells Fargo Bank and Union Trust Co., a corporation,' and defendant Alberta Bancroft Reid, said defendants being the trustees of the trust created by the decree of distribution made and entered in the Superior Court of Contra Costa County pursuant to the last will and testament of Fanny Watts Bancroft, deceased. Said defendants joined in a motion for change of venue to the city and county of San Francisco. The trial court made its order denying said motion, and from said order, defendants appeal.

The nature of the action, as stated by appellants and concurred in by respondents, was one which charged the defendants “with wrongfully, fraudulently and falsely charging the trust estate with commissions, with procuring secret profits, with having ‘looted’ the estate, and with having fraudulently served their own selfish and private purposes, and which sought a variety of relief, including removal of the trustees, full disclosure with respect to all dealings with the trust estate, an accounting, judgment against the defendants individually for an amount necessary to make full restitution of the allegedly appropriated funds, for profits purported to have been made by the defendants from dealings with the trust estate, for punitive damages on account of allegedly unlawful acts and for compound interest”. In other words, the action was based upon the alleged wrongdoing of the trustees in the administration of the trust. It is conceded that such an action is a transitory action and, if brought against a single individual trustee, the latter would have the right to a change of venue to the county of his residence under section 395 of the Code of Civil Procedure. (Weygandt v. Larson, 130 Cal. App. 304 [19 Pac. (2d) 852]; Spangenberg v. Spangenberg, 123 Cal. App. 387 [11 Pac. (2d) 408].)

In the present ease, however, the action was brought against a corporation, whose principal place of business was in the city and county of San Francisco, and also against an indi[222]vidual defendant, whose place of residence was in the county of Alameda. The motion of defendants for a change of venue from Contra Costa County to the city and county of San Francisco was based upon these grounds and upon the further ground that the action was not one within the meaning of article XII, section 16 of the Constitution which provides that a corporation may be sued in places other than its principal place of business under certain circumstances. The motion was supported by appropriate affidavits and no counter-affidavits were filed.