Stanning v. White

California Court of Appeal Jan 6, 1958 No. Civ. No. 9292Published

Before: Warne

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Holding. The court held that a defendant cannot obtain a change of venue based solely on their residence when the plaintiff has properly filed suit in the county where the contract was executed and the obligation was incurred. Furthermore, the convenience of witnesses who are parties to the action is not a valid ground for a change of venue in the absence of unusual circumstances.

Issues

Whether a defendant is entitled to a change of venue based solely on their residence when the contract was entered into in the county where the action was filed.
Whether the convenience of witnesses who are parties to the action constitutes a valid ground for a change of venue.

Disposition. reversed

Quotations verified verbatim against the opinion

“[W]here it appears that the contract was entered into in the county in which the action was filed plaintiff is entitled to have the action upon it tried there despite defendant’s residence in another county.”

“Further, convenience of witnesses who are parties (in the absence of unusual circumstances) cannot be considered on such a motion.”

WARNE, J. pro tem.* This is an appeal from an order granting a motion for change of venue.

Plaintiff brought suit in the Superior Court of Sierra County against defendants to recover damages for their alleged breach of a written contract to buy Christmas trees.

The complaint alleged that the contract was entered into in Sierraville, Sierra County. Defendants filed an answer wherein they admit that the contract was made in Sierra County, and then moved for a change of venue on the sole ground that some of the parties were residents of San Mateo County. Affidavits were filed in support of the motion. No counteraffidavits were filed. The motion was granted and the action was ordered transferred to the Superior Court of San Mateo County. The minute order found in the clerk’s transcript states that the motion was granted “on ground of convenience of witnesses.” However, the written order later signed and filed omitted any reference as to the reason for granting the motion.

Defendants contend that the action was brought in the proper county since it is based upon a written contract admittedly entered into in the County of Sierra and that the court had power under the circumstances presented to change the place of trial on the ground of convenience of witnesses.

Section 395 of the Code of Civil Procedure provides in part:

“. . . When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract was in fact entered into, or the county in which the defendant, [549]or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of the action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary.”

In Turner v. Simpson, 91 Cal.App.2d 590, 591 [205 P.2d 423], the court said:

“. . . [W]here it appears that the contract was entered into in the county in which the action was filed plaintiff is entitled to have the action upon it tried there despite defendant’s residence in another county.”

And in Dawson v. Goff, 43 Cal.2d 310, 315 [273 P.2d 1], the court, in passing upon a question of venue where a contract was involved, said:

Stanning v. White

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