Hall v. Superior Court

MOLINARI, J. This is a petition for a writ of mandate seeking to compel the Superior Court of Alameda County to grant a motion for change of venue to Mendocino County.

The Facts

The real party in interest, Fred J. Walker, hereinafter referred to as the respondent, commenced an action in Alameda County against the petitioner for the recovery of installments allegedly due on a contract for the sale of laundry and cleaning equipment or for rescission. The verified complaint alleged an agreement between the respondent and the petitioner wherein the petitioner agreed to pay the consideration plus interest to the respondent at Berkeley, County of Alameda, California. The complaint did not allege whether the agreement was oral or written, nor where it was entered into. The petitioner filed a demurrer to the complaint and a motion for change of venue from Alameda County to Mendocino County. In support of his said motion the petitioner filed an affidavit stating that he was a resident of Mendocino County, that the contract in question was oral, and that it was entered into in Mendocino County. Upon being advised of the date of the hearing of said motion, the petitioner’s attorney wrote to respondent’s attorney requesting a continuance. The latter responded by letter that he had requested the court to continue the motion to August 16,1962, at 2 p. m. and asked counsel for the petitioner to prepare a written stipulation for such continuance for filing with the court. Petitioner’s attorney thereupon replied by sending back the said letter received from respondent’s attorney with the following handwritten notation at the bottom thereof, to wit: “Sorry, but my secretary is away for two weeks—please indicate my approval of the foregoing and matters will be submitted by papers on file without personal appearance. ’ ’

Counsel for the petitioner did not appear on the said day set for the hearing of the motion for change of venue. The attorney for the respondent did appear and during the course of the hearing filed three affidavits in open court in opposition to the motion. One affidavit was that of the respondent, the substance of which was that the contract was an oral one and had been entered into between him and the petitioner in the respondent’s office in Berkeley, California. The second affidavit was that of the respondent’s office manager, one Bozeny, who [637]stated therein that on a certain date the petitioner agreed orally with the respondent in his (Bozeny’s) presence to purchase the subject equipment which was then located in Ukiah, Mendocino County. Bozeny further deposed that he then made a memorandum of the contract and its terms and that he made said memorandum the basis of a ledger account. The third affidavit was that of one Robertson, who stated that he was present in the respondent’s office in Berkeley and that in the presence of himself, the respondent and Bozeny, the petitioner there agreed orally to purchase the machinery and fixtures of a cleaning business located in Ukiah for a definite price “amounting to a number of thousands of dollars.” Copies of these affidavits were never forwarded to the petitioner or his counsel, although a copy of the complaint, which had been amended to state that the contract in question was oral, had been forwarded to petitioner’s counsel. The said motion for change of venue was thereupon denied by the Alameda Superior Court. No notice of said ruling was given to the petitioner.