Killam v. Riley

WOOD (Fred B.), J. Upon this appeal by plaintiff from an order transferring the cause from Alameda to Los Angeles County at the instance of defendant C. B. S. Steel and Forge, a corporation, the question is whether or not the evidence supports the implied finding that Alameda County is not a county in which the defendant corporation may be sued upon the causes of action stated in the complaint.

“A corporation . . . 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 . . .” (Const., art. XII, S 16.)

It appears from the defendant corporation’s affidavit that Los Angeles is the county “where the principal place of business of such corporation is situated” and that the only other defendant (Fred Riley, an individual) resides in Los Angeles County. Hence, Los Angeles is a proper county [396]in which to sue the corporate defendant. But that does not prevent Alameda from being a proper county; e.g., as the county “where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs.” On this issue the defendant has produced no evidence. Its supporting affidavit is totally silent in that regard. So, we turn to the complaint which also was in evidence at the hearing of the motion.

The complaint is in two counts: One, for anticipatory breach of an express oral contract; two, a common count for the value of services rendered, clearly referring to the same transaction as does the first count.

In Count One we find the statement that the parties “entered into” the contract “in the City of Alameda, County of Alameda.” That proves that Alameda is the county “where the contract is [was] made,” hence a county in which the plaintiffs have the right to sue the defendant corporation upon the cause of action stated in the first count. Defendant does not question this conclusion.

In Count Two we find the statement that “in the City of Alameda, County of Alameda, State of California, defendants became indebted” to plaintiffs for services rendered, proof that Alameda is the county “where the obligation or liability arises [arose]” and as such a proper county for suit upon the second count.

Defendant questions this line of reasoning. It says the expression “became indebted” is but a conclusion and without evidentiary value, especially in an unverified complaint such as here involved; that this leaves uncontradieted that portion of the first count of the complaint which states that the plaintiffs’ services were “in operations to raise and salvage a certain barge sunken off Point Orient, California”; the court takes judicial notice of the fact that Point Orient is in Contra Costa County; the place of performance determined the place of “becoming indebted”; hence, there is no showing that Alameda is a proper county under section 16 of article XII of the Constitution. There are several fallacies in this line of reasoning.