Peterson Tractor Co. v. Muller

PAULSEN, J. pro tem.* Appellant filed an action in Alameda County to recover the balance due on several sales contracts, setting the contracts forth in a first cause of action and in a second cause of action simply alleging an indebtedness of the same amount. Respondent who was sued individually and doing business as M. & M. Construction Company, Ltd., moved for a change of venue to Contra Costa County on the ground that at the time of the commencement of the action he was a resident of Contra Costa County. The appeal is from an order granting the motion.

By the allegations of its complaint and by detailed statement in its affidavits, appellant sought to show that the contracts were entered into and were to be performed in Alameda County. By his answer and by affidavit, respondent sought to show that the contracts were entered into and were to be performed in Contra Costa County. No affidavit of merits was filed, but after an objection was made on that ground to the granting of the motion defendant requested permission to do so. By stipulation, the minutes of the hearing on the motion were amended to show that appellant “as an additional ground for objection to said motion, objected to said motion because Defendant and Respondent had not filed an Affidavit of Merits as required by CCP 396b . . . but such request was [282]denied by the Court on the grounds that the requirement of such Affidavit of Merits was discretionary with the Court, and that in this instance the court did not require same.”

The applicable parts of that section read as follows: “ [I] f an action or proceeding is commenced in a court having jurisdiction of the subject-matter thereof, other than the court designated as the proper court for the trial thereof, under the provisions of this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he answers or demurs, files with the clerk ... an affidavit of merits and notice of motion ...”

It is undisputed that defendant Muller was at all times a resident of Contra Costa County and the refusal of the trial court to permit the filing of an affidavit of merits after objection was made at the hearing was apparently based on the second cause of action. In Gilman v. Norden, 112 Cal.App.2d 788 [247 P.2d 394], it is said: “If a defendant is entitled to a trial in the county of his residence on any one of several causes of action in a complaint, he is entitled to a change of venue to that county notwithstanding that on all the other causes he would not be entitled to such change.” See also International Investment Co. v. Chagnon, 170 Cal.App.2d 441 [339 P.2d 147]; Crofts & Anderson v. Johnson, 101 Cal.App.2d 418 [225 P.2d 594].