Ramos v. Cypher

VAN DYKE, P. J. Plaintiff, Joe R. Ramos, brought this action against the above named defendants asking for a declaration of his rights and duties and a determination of his obligations arising out of a series of transactions with C. L. Cypher, during his lifetime, his administratrix after his death, Peerless Casualty Company, and the city of Vacaville. The [649]administratrix moved that the place of trial he changed to the county of Napa, in which county the estate of her decedent was being probated, claiming that she was entitled to such order by virtue of the provisions of section 395.1 of the Code of Civil Procedure. Her motion was denied, and from the order of denial she appeals.

The complaint sets forth the following matters: During the lifetime of Cypher, plaintiff contracted with him to construct certain street improvements in a subdivision owned by plaintiff and located in the city of Vacaville, county of Solano. Cypher failed to do the work in accordance with the ordinance requirements of the city and the city refused to accept the streets as so improved. Thereafter it was agreed between Cypher and the city that the city would conditionally approve and accept the streets, provided that Cypher would undertake a program of repair and completion estimated to cost $6,000, and secure his performance thereof by a surety bond. Ramos agreed that if Cypher would enter into that undertaking he would release to him the moneys he had been holding back under the contract between himself and Cypher. Peerless Casualty Company bonded Cypher in the sum of $6,000 to perform the rectifying work, naming Ramos as obligee. However, Cypher did not perform the work. Thereupon the city performed it at a cost of over $8,000 and claimed a right to recover that sum from Ramos. Ramos had demanded, before the city performed the work, that the administratrix of the estate of Cypher perform the work of rectification which Cypher was bound to do and the administratrix refused. Ramos demanded the penalty of the bond of the bonding company and the company refused, claiming it was not liable. Ramos filed a claim contingent in character against the estate of Cypher for the amount which the city claimed a right to recover against him or for such portion of that sum for which Ramos might be held to be responsible by reason of the failure of Cypher to comply with the terms and conditions of the agreement for the rectification of the street work. By this action Ramos sought to have the rights and obligations of the parties determined.

Section 395.1 of the Code of Civil Procedure provides: