Garrett v. Superior Court of Kings Cty.

CONLEY, P. J. Utilizing the current means provided by section 400 of the Code of Civil Procedure to test the propriety of the order of the trial court, the defendant in action No. 18187, pending in Kings County, entitled “The Armstrong Rubber Company v. J. Earl Garrett, Jr., doing business as Jaybird Auto Center & Car Wash,” filed a petition for a writ of mandate to require the Kings County Superior Court to grant his application for a transfer of the case to his home county of Orange. (Henson v. Superior Court, 218 Cal.App.2d 327 [32 Cal.Rptr. 404] ; Cal-Ore Lumber Sales v. Russell, 133 Cal.App.2d 296 [284 P.2d 179].) The petitioner urges two grounds for this relief saying that:

1) The plaintiff sued in the wrong county (Code Civ. Proe. § 395), and

2) The trial court abused its discretion in not ordering the change of venue for the convenience of witnesses and the furtherance of justice. (Code Civ. Proc. § 397, subd. 3.) In this latter connection, instead of demurring to the complaint, the petitioner filed an answer as his first appearance in the Kings County action, concurrently with the petition for a change of venue, an affidavit of merits, and a supporting declaration of fact. It is our conclusion that the court below should have granted the motion for a change of venue on both grounds.

First, the petitioner urges that venue should have been removed to Orange County by virtue of the facts established [266]in the declarations and the provisions of section 395 of the Code of Civil Procedure, which, in applicable part, are as follows: “(1) In all other eases, except as in this section otherwise provided, and subject to the power of the court to transfer actions or proceedings as provided in this title, the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action. . . . 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 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.”

There is no question but that, at the time of the commencement of the action, the defendant resided in the County of Orange. And the general rule is that when a corporate plaintiff desires to bring an action in some county other than that in which a defendant resides, it is its duty to make clear in its complaint that one of the other contingencies above specified does in fact exist so that the venue in a county other than that in which the defendant resides is proper. (Kaluzok v. Brisson, 27 Cal.2d 760, 763 [167 P.2d 481, 163 A.L.R. 1308].) It is contended, and analysis seems to confirm, that none of the contracts of purchase going to make up the open account, which is the basis for the complaint, was made in the County of Kings, that performance also took place in its entirety in each instance in counties other than Kings, and that there was no special contract in writing relative to the business relationship. In passing, we note that it would have been easy, originally, for the Armstrong Rubber Company to insist upon a special contract for payment in Kings County, but it did not do so.