Golden State Bottling Co. v. Fidelity & Deposit Co.

WARNS, J. pro tem.* This is an appeal by the defendant from an order denying its motion for a change of venue.

A summary of the facts as alleged in the complaint are as follows: On July 30, 1954, one B. T. Burns commenced an action in the Superior Court of the City and County of San Francisco against B. J. Crofoot and respondent herein, a California corporation, with its principal place of business in Sacramento County, to recover a money judgment on an alleged claim. On the same date appellant, as a corporate surety, executed an undertaking for attachment. This undertaking was executed in San Francisco and filed in the Superior Court in San Francisco. A writ of attachment was then issued and directed to the sheriff of Sacramento County for levy upon property of the respondent. On August 1, 1954, bank accounts of respondent in Sacramento totaling $42,319.28 were levied upon and held under attachment until April 25, 1955, and during all of said time respondent was deprived of the use of said funds, and interest thereon at the rate of 7 per cent, amounting to $2,180.47.

The action terminated in favor of the Golden State Bottling Company, respondent herein.

Thereafter, respondent commenced this action against the Fidelity and Deposit Company of Maryland, appellant herein, on its undertaking, for wrongful attachment. The action was filed in the Superior Court of Sacramento County.

Appellant moved for a change of venue to the city and county of San Francisco. The grounds of motion as set forth in the notice of motion are: “That the Court designated in the complaint is not the proper court and for the alternative ground that the convenience of witnesses . . . would be promoted ...” In support of its motion, appellant filed an affidavit stating that it is a corporation, organized and existing under the laws of the State of Maryland, and that its principal place of business was located in the city and county of San Francisco. It also alleges that the undertaking on attachment sued upon “was executed in San Francisco, California by defendant corporation, and the place of performance, if any is required, is in the City and County of San [426]Francisco, State of California, and not elsewhere.” Respondent herein filed an affidavit opposing said motion for change of venue. The motion was denied, and this appeal followed.

The place for filing and trial of an action against a corporation is provided in section 16 of Article XII of the California Constitution. The section reads as follows: