Taff v. Goodman

California Court of Appeal Nov 29, 1940 No. Civ. No. 6504Published

Before: Tuttle

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial court's denial of a motion for change of venue was supported by sufficient evidence that a defendant was a resident of the county where the action was filed, and that the joinder of said defendant was not solely for the purpose of fixing venue.

Issues

Whether the trial court's finding regarding a defendant's residence was supported by sufficient evidence.
Whether the joinder of a defendant was made solely for the purpose of fixing venue in violation of Section 395 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered established.”

“Of all the formal acts to be scrutinized in ascertaining a person’s domicile, undoubtedly the act of registering and voting is the most important, and, while not necessarily conclusive, it is usually most convincing and persuasive.”

“Where there are several defendants who reside in different counties, the law gives plaintiff the option and right of commencing the action in the county where any one of the defendants may reside.”

TUTTLE, J. This is an appeal from an order denying a motion for a change of venue from Merced County to Alameda County. The motion was submitted upon affidavits and oral testimony, and was denied.

On November 16, 1939, plaintiff commenced an action in the Superior Court of Alameda County for the recovery of damages arising from personal injuries alleged to have been [773]inflicted in an automobile accident through the negligence of defendants Goodman and Everett. The action came on regularly for trial and the cause was submitted to a jury, which was unable to agree, and was thereafter discharged. On April 29, 1940, plaintiff’s counsel dismissed said action without prejudice, and filed the present action in Merced County, joining as a defendant Catherine Duffy. Defendant Goodman filed a demurrer to the complaint, and at the same time, a notice of motion for change of venue, designating the Superior Court of Alameda County as the proper court for the trial of the action. He also filed an affidavit of merits, and averréd among other things that he was a resident of Stanislaus County; that no defendant was a resident of Merced County; and that the alleged injury to plaintiff occurred in Alameda County. Samuel H. Berry, attorney for defendant Goodman, also filed an affidavit in support of the motion in which he set forth the history of the ease, and stated that the obvious reason for joining Catherine Duffy as a defendant was to create a simulated basis for the fixing of venue in Merced County; that Catherine Duffy was not a resident of Merced County; and that the interests of justice required the removal of the action from Merced County to Alameda County. Plaintiff’s two attorneys filed counter-affidavits. Defendant Catherine Duffy also filed a demurrer, a notice of motion for change of venue, and an affidavit of residence and merits. She averred that her residence was in the City and County of San Francisco at the time the action was commenced, and denied that she was a resident of Merced County. She requested that the action be transferred to the City and County of San Francisco.

The motions were consolidated for hearing, and the affidavits were supplemented by oral testimony respecting the residence of defendant Duffy. At the hearing said defendant joined in the request that the action be transferred to Alameda County. All of said motions were denied. No appeal was taken by defendant Duffy.

It appears that the evidence relating to the residence of defendant Duffy is conflicting. She alleges in her affidavit that she was a resident of the City and County of San Francisco at the time of the commencement of the action. On the other hand, it is alleged in the affidavit of C. Ray Robinson, attorney for plaintiff, that said defendant was, at said time,

Taff v. Goodman

AI Brief

More from California Court of Appeal

Related research

AI Brief