Radio K-Dan, Inc. v. Superior Court

THE COURT. This is a petition for a writ of mandate, filed pursuant to Code of Civil Procedure, section 400, to review an order of respondent court granting defendant’s motion for change of venue from Los Angeles to Humboldt County on the ground that the latter county is that in which the real property, the subject of the action, is situated.

Petitioner contends that the court erred in granting the motion in that defendant, at the time of filing the motion, did not file an answer or demurrer and that the motion was not accompanied by an affidavit of merits as required by Code of Civil Procedure, section 396b. We think it unnecessary to consider the first contention in that the absence of the affidavit of merits is a fatal defect.

Section 396b provides that “. ... if 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 for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of such papers. ...”

As stated in Los Angeles City School Dist. v. Redwood Empire Title Co., 206 Cal.App.2d 398, 405 [23 Cal.Rptr. 662] : “The affidavit of merits ‘must depose that a defendant has fully and fairly stated the ease and all the facts thereof [547]to his attorney and after such statement he was advised by his attorney and verily believes that he has a good and substantial defense on the merits.’ [Citations.] This affidavit of merits must he filed. (Peterson Tractor Co. v. Muller, supra [178 Cal.App.2d 280, 283 (2 Cal.Rptr. 910)]; Fernandez v. Fernandez, 11 Cal.2d 568, 569 [81 P.2d 913].) By failing to do so a moving party waives his right to have his motion granted. [Citations.] ” (Italics added.) (See also, Mono Power Co. v. City of Los Angeles, 33 Cal.App. 675, 683 [166 P. 387]; Peterson Tractor Co. v. Muller, 178 Cal.App.2d 280, 283 [2 Cal.Rptr. 910].)

Actions coming within the constitutional provision (art. VI, § 5) must be commenced in the county in which the real property is situated. This requirement is jurisdictional, and cannot be waived. (Apartments, Inc. v. Trott, 172 Cal. App.2d 7, 11-12 [342 P.2d 32].) Nor would an affidavit of merits be necessary. (Los Angeles City School List. v. Redwood Empire Title Co., supra, p. 405.) However, a reading of the complaint shows that the action clearly is not one “for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate.”