Hollopeter v. Rogers

SALSMAN, J. The defendant appeals from an order denying his motion for a change of venue.

The defendant, while in custody in Marin County, signed a written contract with the plaintiffs whereby he retained them as his attorneys and agreed to pay them certain sums as their fees. One of the plaintiffs has his offices in Los Angeles County and the other has his offices in the City and County of San Francisco. The plaintiffs brought their suit in Marin County to recover a claimed balance due under the contract. The complaint was not verified but alleged that the written contract between the parties was entered into in Marin County. The defendant filed a verified answer and counterclaim, and a motion for a change of venue supported by his own declaration and by a declaration of one Harvey H. Rogers. The plaintiffs filed no affidavits in opposition to the defendant’s motion.

It is conceded that the defendant is a resident of Los Angeles County. The plaintiffs, however, seek to retain venue in Marin County, and rely upon that portion of section 395 of the Code of Civil Procedure which reads: “When a defendant has contracted to perform an obligation in a par[816]ticular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an 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 construing this portion of section 395 of the Code of Civil Procedure it was said in Armstrong v. Smith, 49 Cal.App.2d 528, 532 [122 P.2d 115]: “What the legislature has in substance said is that all actions arising on contract shall be tried in the county in which the defendant resides, or in which the contract was made, unless the defendant has contracted specially and in writing as to the county in which his obligation is to be performed, in which event such county is also a proper county for the trial of the action.” Here it is admitted that the defendant is a resident of Los Angeles County. There remains, therefore, only the two possible grounds upon which venue may be retained in Marin County, namely, first, that the contract was made in Marin County, and second, that the defendant has contracted specially to perform the contract in Marin County.