Daugherty v. Kaplan

MUSSELL, J. The complaint in this action was filed in Fresno County and appellant, who was named as a defendant therein and was a resident of Madera County, filed a motion for change of place of trial to the county of his residence. The motion was denied by the trial court and this appeal followed.

It is conceded that the action is transitory and that in such an action the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial thereof. (Code Civ. Proc., § 395.) It is also conceded that the defendants Jack D. Green, Lucille B. Green and Jessie D. Green are residents of Fresno County.

Appellant contends that a plaintiff may not fix venue in a county by naming residents as parties defendant without stating a cause of action against them; that no cause of action is stated against the three Fresno County residents named as defendants and that they were joined as parties defendant to prevent the transfer of the cause to the county of appellant’s residence.

[569]In Kraft v. Innis, 57 Cal.App.2d 637, 640 [135 P.2d 29], the rule is stated that:

“ ‘When none of several defendants resides in the county where the action is brought, they have a right, upon showing that fact—-the action being one properly triable in the county of defendants’ residence—to have the venue changed to the county where some or all of them reside. But a defendant may not have the action changed to the county of his residence in the absence of a showing that none of the other defendants is a resident of the county in which the action was brought, even though all the defendants join in the demand or consent to the change. In such case the causes will be retained if any of, the defendants reside in the county of venue, provided the complaint attempts in apparent good faith to state a cause of action against the defendant or defendants in whose county of residence the action is commenced ; and the subsequent dismissal of some of the defendants does not give the right to a change where the complaint as originally filed stated in good faith a cause of action against them.’ ”

And in Freemem v. Dowling, 219 Cal. 213, 216 [25 P.2d 980], the court stated:

“Upon a motion for a change of venue, however, if the allegations do no more ‘than shadow forth the semblance of a cause of action’ they are ‘proof against assault upon the ground that they’ are ‘sham and frivolous.’ (McClung v. Watt, 190 Cal. 155 [211 P. 17].) The more recent ease of Mills v. Brown, 205 Cal. 38, 41 [269 P. 636], quotes with approval from the McClung case as follows: ‘It is enough, however, upon the hearing and determination of the demand for a change of venue, that the cause of action purported to be stated against the corporation defendant was apparently pleaded in good faith and is not, prima fade, so glaringly and vitally defective as to be beyond correction by amendment.’ ”