Marshall v. Dunlap

MOORE, P. J. The sole question posed is whether the court below abused its discretion in ordering a change of place of trial on the ground of convenience of witnesses and the promotion of the ends of justice. (Code Civ. Proc., § 397, subd. 3.)

Appellants Marshall sued respondents in the Superior Court of Los Angeles County for the wrongful death of their parents. The amended complaint alleges that the deaths resulted from a collision of the Marshall automobile with a jeep of the Dunlaps negligently driven by one Spivey, agent of the Dunlaps, and that the accident occurred about 11 miles south of Indio in Riverside County.

When Spivey filed his answer on June 23, 1954, he filed his application for change of venue on the grounds of residence. His motion was denied. On August 11, 10 days after answering, the Dunlaps moved for a change of venue on the ground of convenience of witnesses.* On October 15, 1954, Dunlaps’ motion was granted. This appeal is from the order granting the change.

Appellants contend that the rule against successive motions for a change of venue is applicable to the Dunlaps, citing Yellow Mfg. Accept. Corp. v. Stoddard, 93 Cal.App.2d 301 [208 P.2d 1040], The cited authority is not applicable. It holds merely that a second motion for a change of venue should be discouraged if the complaint and the conditions remain the same. Also, they cite Code of Civil Procedure, section 396, but that statute contains no rule against successive motions for change of venue. At the most, it might be interpreted as discouraging successive motions for change of venue, but this could only be subject to the discretion of the court. The second point is that the ease cited by appellants is concerned with successive motions for change of venue on the grounds of nonresidence. Such is not the case here where Spivey’s motion on the ground of residence was denied and respondents’ [61]motion based upon convenience of witnesses was granted. Furthermore, Spivey made the first motion for change of place of trial of the ground of his residence. Dunlaps ’ motion was on the ground of convenience of witnesses. Spivey’s filing of a concurrent motion of similar tenor did not affect the Dunlap motion. Both desired the same thing at the time Dunlap filed his successful motion. As pointed out in Smith v. Pelton Water Wheel Co., 151 Cal. 399, 401 [90 P. 932, 1135], an order denying a motion for change of venue is not a judgment subject to the doctrine of res judicata since a court has no jurisdiction to consider a renewal thereof. As the trial court has no right to reconsider a motion for change of venue, appellants’ several arguments: (1) that respondents waived their rights to move a second time; (2) that they are estopped to deny that they appeared in the first motion, and (3) that they consented to the first ruling by the court—are not applicable to this decision.