MONOGRAM CO OF CALIFORNIA v. KINGSLEY

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District Court of Appeal, First District, Division 2, California.

MONOGRAM CO. OF CALIFORNIA et al. v. KINGSLEY et al.

Civ. 14645.

Decided: May 29, 1951

Hagar, Crosby, Crosby & Vendt, Oakland, O'Melveny & Myers, Los Angeles, for appellants Lewis A. Kingsley and Mrs. Lewis A. Kingsley et al. J. H. Sapiro, San Francisco, Wolfson & Essey, Beverly Hills, for appellants S. Arthur Donner, Max Rattner and Maurice B. Tyson. Freed, Gebauer & Freed, Eli Freed, Emmett Gebauer and Scott Fleming, all of San Francisco, for respondents.

Defendants appeal from an order denying motions of two groups of defendants, all residing in Los Angeles County, for a change of place of trial from Alameda County to the County of Los Angeles. One defendant, Lewis, is admittedly a resident of Alameda County, the county in which plaintiffs commenced their action. All of the other defendants reside in Los Angeles County. The complaint is in twenty counts in twelve of which Lewis is joined as a defendant and in eight of which Lewis is not joined. It alleges in separate counts as to each plaintiff several acts of libel and slander allegedly committed against them, in some counts by all of the defendants, in others by only some of them. On the hearing of the motions the defendant Lewis, through his counsel, expressly consented to the transfer to Los Angeles County.

The case is governed by that portion of section 395, Code of Civil Procedure, which reads: ‘In all other cases * * * 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.’

The general rule is not disputed that where a case properly falls within this quoted provision if any one necessary party defendant resides within a particular county that county is a proper county for the trial of the action and even though all of the other defendants reside in another county they may not have the place of trial changed to the county of their residence on that ground. Independent Iron Works v. American President Lines, 35 Cal.2d 858, 221 P.2d 939; 25 Cal.Jur., Venue, sec. 21, pp. 879, 880. Defendant Lewis, being properly joined as a necessary party in twelve of the twenty counts, the rule just stated fully supports the order here appealed from, unless the rule is inapplicable in this case by reason of the fact that in eight of the counts Lewis is not joined and that fact coupled with the consent of Lewis to the transfer of the case takes this case out of the general rule.

Appellants rely on one case which supports this position, Hagan v. Gilbert, 83 Cal.App.2d 570, 189 P.2d 548. In that case however there was no hearing sought in the Supreme Court. In the later case of Stokes v. Newsom, 89 Cal.App.2d 147, 200 P.2d 17, the complaint was in four counts. Three of the counts sounded in contract and the fourth in fraud. The first three counts stated no cause of action against the defendant Coffee, who resided in the county where the action was brought, but the fourth did. In affirming an order denying a motion to change the place of trial to the county of the other defendant's residence the court said: ‘It is readily apparent from an examination of the complaint that if it went no further than the first three causes of action * * * it would be fatally defective * * *. However, by virtue of the fourth cause, which is based upon an alleged fraud of the resident defendant Coffee and the nonresident defendant and appellant Newsom the action is properly triable in Stanislaus County, it being ‘the county in which the defendants, or some of them, reside at the commencement of the action’, and therefore the trial court properly denied the motion.' 89 Cal.App.2d at pages 149–150, 200 P.2d at page 19.

In this case a petition for hearing was denied by the Supreme Court and the case has since been cited with apparent approval in Independent Iron Works v. American President Lines, supra, 35 Cal.2d at page 863, 221 P.2d 939.

Similarly in Kraft v. Innis, 57 Cal.App.2d 637, 135 P.2d 29, three physicians were sued in separate counts for malpractice, two of the defendants being residents of Kern County in which the action was commenced, and the third being a resident of Los Angeles County. A motion of the Los Angeles defendant for change of place of trial to the county of his residence was denied and the order of denial affirmed. A petition for hearing in the Supreme Court was likewise denied in this case.

Appellants seek to distinguish these two cases from the one before us on the ground that in those cases the resident defendants did not consent to the transfer while in the case before us such consent was expressly given. The distinction lacks validity. In those cases in which venue depends upon the residence of a defendant it is now well settled, although language suggesting the contrary rule may be found in earlier cases, that the consent of the resident defendant to the transfer cannot deprive the plaintiff of his right to have the action tried in the county of the consenting defendant's residence. The rule was restated in Independent Iron Works v. American President Lines, supra, 35 Cal.2d at page 860, 221 P.2d at page 941, quoting with approval White v. Anderson, 50 Cal.App.2d 634, 636, 123 P.2d 543: ‘Even when all of the defendants join in a demand for or consent to a change of venue the cause will be retained if the complaint attempts in apparent good faith to state a cause of action against a defendant who resides in the county where the action was commenced.’

In view of this rule the following statement found in Hagan v. Gilbert, supra, 83 Cal.App.2d at page 578, 189 P.2d at page 554, for which that court cited no authority (as an examination of the recent cases satisfies us that it could not have done) must be taken as an unwarranted and mistaken statement of the law: ‘It will be noticed that defendant Stone (the resident defendant) took no part in the proceeding, by opposing the motion or otherwise. No question as to his right to have the action retained for trial in Los Angeles County as against the right of the other defendants to have it transferred to the City and County of San Francisco was involved or decided.’

We conclude that the case before us is ruled by Kraft v. Innis, supra, and Stokes v. Newsom, supra, and that Hagan v. Gilbert, supra, should not be followed.

The Hagan case strongly relied upon an entirely different rule of law, that where all of the defendants are non-residents of the county in which the action is brought the defendants are entitled to have the place of trial changed to the county of their residence, even though one cause of action is properly triable in the county where commenced under some other provision of the codes, if it is joined with another cause of action which is transitory. This is the rationale of Bardwell v. Turner, 219 Cal. 228, 25 P.2d 978; Turlock Theatre Co. v. Laws, 12 Cal.2d 573, 86 P.2d 345, 120 A.L.R. 786; and Goossen v. Clifton, 75 Cal.App.2d 44, 170 P.2d 104 cited and relied on in the Hagan case. 83 Cal.App.2d at page 574, 189 P.2d 548. This rule has never, except in the Hagan case, been applied where any of the defendants was resident in the county wherein the action was commenced.

The order is affirmed.

I dissent. I am unable to agree with the majority opinion as I have reached the conclusion that the order should be reversed.

Appellants rely chiefly upon two decisions which they contend are decisive of the propositions to be dtermined on this appeal. The first is Goossen v. Clifton, 75 Cal.App.2d 44, 170 P.2d 104, 107. The action was brought in Santa Clara County. The complaint contained who counts—(a) first count to recover upon a mutual, open and current book account in the sum of $17,500.08; and (b) second count, that an account was stated in the office of plaintiff in Santa Clara County, and upon such statement there was found due from defendants to plaintiffs the sum of $17,500.08. The two Cliftons (defendants) were residents of Los Angeles County at the time of the commencement of the action. Defendant Vollmer was a resident of Alameda County and joined with the Cliftons in a motion for change of venue to Los Angeles County, which was denied by the Superior Court of Santa Clara County.

In reversing the order denying the motion for change of venue, Presiding Justice Peters in a clear and well considered opinion, said:

‘Before directly discussing the facts of this case there are certain well settled rules that must be kept in mind. The general rule is that a defendant is entitled to have actions tried in the county of his residence. The right of the plaintiff to have the action tried elsewhere is the exceptional right, and must find its justification in the terms of some statute. It is the duty of a plaintiff to bring himself within some exception if he can—otherwise, the defendant's right is to have the case tried in the county of his residence. See cases collected 25 Cal.Jur. p. 866, § 13. Actions in contract, except as provided in § 395 above quoted, are personal actions triable in the county of defendant's residence. See 25 Cal.Jur. p. 869, § 15. It has been held that § 396b of the Code of Civil Procedure conferring on defendants the right to have the action tried in the county where they, or some of them, reside, is remedial in nature and should be liberally construed to the end that defendants may not be unjustly deprived of that right. Lyons v. Brunswick-Balke-[Collender] Co., 20 Cal.2d 529, 582, 127 P.2d 924, 141 A.L.R. 1173. The same case on page 584 of 20 Cal.2d, page 927 of 127 P.2d, states: ‘The right of the defendant to have certain actions tried in the county of his residence ‘is an ancient and valuable right, which has always been safeguarded by statute and is supported by a long line of judicial decisions. ‘The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.’ Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209.' Brown v. Happy Valley Fruit Growers, 206 Cal. 515, 522, 274 P. 977, 979.

‘* * * It is obvious, therefore, that so far as the first count is concerned, were it the only count, plaintiff, having failed to bring himself within the exceptions contained in § 395 (C.C.P.), the defendants, upon a proper showing, would be entitled to have the cause transferred under § 396b to the county where they, or some of them, reside. * * *

‘As to the second cause of action, it is alleged that in Santa Clara County an account was stated. * * * It follows that if the second count stood alone, Santa Clara County would be a proper county in which to try the action.

‘This brings us to the specific problem here involved—when a plaintiff joins in one complaint two causes of action based on contract, in one of which defendants are entitled to a change of venue, and in one of which they are not, what are the rights of the respective parties? Neither counsel has referred us to any case, and we have found none, involving two contract actions. This is probably because the exception providing for trying the action where the contract was entered into or to be performed, found in § 395, was added as of a relatively recent date. Prior to the amendment all contract actions, being personal in nature, were triable in the county of defendant's residence. But although there seem to be no contract cases directly in point, there are many cases, other than contract cases, holding that if a plaintiff units in one complaint two causes of action, in one of which the defendant has the right to have it tried in the county of his residence, in the other of which he is not, the defendant is entitled to have the cause tried in the county of his residence. There are many cases holding, for example, that where a cause of action in personam is joined with a local action, the defendant is entitled to the change of venue, although, had the local action been sued upon alone, no such right to a change would exist. This has been the rule since 1891 when Smith v. Smith, 88 Cal. 572, 26 P. 356 was decided, and the rule has been reaffirmed many times. (Citations.)

‘The rule is fundamental. The important right to protect is that of the defendant to have the cause tried in the county of his residence. For the plaintiff to be entitled to the exceptional right of having the cause tried in some other county, he must clearly bring himself within a statutory exception. If, by joining several causes of action, the defendant could be deprived of his right, the right would be lost in many cases. It is for that reason that the courts hold that the test is whether on any one of the causes of action the defendant is entitled to a change to the county of his residence. If there is one such cause, then defendant is entitled to the change no matter how many other causes may be set forth in which he is not entitled to the change. That is the situation here presented.’

The second case relied on by appellant is the case of Hagan v. Gilbert, 83 Cal.App.2d 570, 189 P.2d 548, in which the superior court of Los Angeles County granted a motion for change of venue to the City and County of San Francisco. The complaint, which purported to allege four causes of action based on contract to recover money, named eight defendants. Seven of the named defendants filed a demurrer to the complaint, and at the same time served and filed a notice of motion for change of venue, which notice stated that the motion would be made upon the grounds that those seven defendants were residents of the City and County of San Francisco, and that the alleged contract was entered into and was to be performed in the City and County of San Francisco. In affirming the order granting the motion for change of venue, the District Court of Appeal said 83 Cal.App.2d at page 573, 189 P.2d at page 551:

‘It is alleged in the complaint that Tom Stone is a resident of the county of Los Angeles. Plaintiff contends that the county of Los Angeles is, therefore, the proper place for the trial of the action. When a defendant resides in the county where an action is commenced, that county is a proper place for trial of the action. Code Civ.Proc., sec. 395. If, however, such resident defendant is not a necessary party, and his residence is the only ground for retaining jurisdiction in the county where the action was commenced, a defendant who resides in another county is entitled to have the place of trial changed to the county of his residence. See Hays v. Cowles, 60 Cal.App.2d 514, 519, 141 P.2d 26. Respondents contend, in effect, that the resident defendant Tom Stone is not only not a necessary party to the action, but that he is not a proper party and no cause of action is stated against him in the third cause of action. * * * No cause of action was stated therein (third cause) against Stone.

‘Appellant contends, in effect, that irrespective of whether the asserted third cause of action stated a cause of action against Stone, there were three causes of action in the complaint against Stone, and that the nonresident defendants, therefore, were not entitled to a change of venue. This contention is not sustained. When a nonresident defendant is entitled to a change of venue, upon one cause of action stated in a complaint, he may not be deprived of that right because plaintiff included other causes of action in the same complaint upon which such defendant is not entitled to a change of venue. See Bardwell v. Turner, 219 Cal. 228, 25 P.2d 978; Turlock Theatre Co. v. Laws, 12 Cal.2d 573, 86 P.2d 345, 120 A.L.R. 786. In the case of Goossen v. Clifton, 75 Cal.App.2d 44, 170 P.2d 104, that rule was held to apply to causes of action based on contracts. The court therein stated, 75 Cal.App.2d at page 49, 170 P.2d at page 108: (The court then quotes the language verbatim which we have hereinbefore quoted from the Goossen case, supra, so that it will be unnecessary for us to again repeat the same).’ And 83 Cal.App.2d at page 578, 189 P.2d at page 554: ‘It will be noticed that defendant Stone took no part in the proceeding, by opposing the motion or otherwise. No question as to his right to have the action retained for trial in Los Angeles County as against the right of the other defendants to have it transferred to the City and County of San Francisco was involved or decided.’

Respondents in reply argue that the authorities cited by appellants are neither applicable to nor decisive of the instant case. Respondents state that they rely on the fundamental venue rule and not on any exception thereto or special venue provision. I shall first review briefly the principal authorities relied on by respondents as controlling decisions which they assert establish that the action is properly triable in Alameda County.

Respondents first cite Stokes v. Newsom, 89 Cal.App.2d 147, 200 P.2d 17, which was an action commenced in Stanislaus County against Newsom, a resident of San Francisco County, and Coffee, a resident of Stanislaus County. The parties in said action were Jake Stokes and C. L. Coffee, copartners, etc. against William L. Newsom and C. L. Coffee. The complaint was based on an oral agreement alleged to have been made by Stokes and Coffee, copartners with defendant Newsom, and it was alleged that Coffee had refused to join Stokes as a plaintiff and was therefore joined as a defendant. The first three causes of action alleged a breach of contract between Newsom and the copartnership and state no cause of action against Coffee other than that he refused to join Stokes as a plaintiff in the action; and the fourth alleged fraud and conspiracy on the part of Newsom and Coffee. In order that the ruling in Stokes v. Newsom may be better understood we quote from the opinion, 89 Cal.App.2d at page 149, 200 P.2d at page 18, as follows:

‘Separate demurrers were filed by Coffee and Newsom and the latter also filed a demand for a change of venue on the grounds that he was at all times a resident of the City and County of San Francisco and that Coffee was improperly joined as a defendant solely for the purpose of having the action tried in Stanislaus County where Coffee resides. After a hearing on the motion the court made its order denying the same and defendant thereupon appealed to this court. Two contentions are made, first that the allegations of the complaint relative to the oral agreement between the parties was insufficient to deprive the nonresident of his right to have the place of trial changed to the county of his residence under section 395 of the Code of Civil Procedure, and, second, that where a resident plaintiff is made a nominal defendant under the circumstances shown in this case a court may not consider the fact of such residence where the non-resident moves for a change of venue to the county of his residence.

‘The portions of said section 395 of the Code of Civil Procedure pertinent to this controversy provide as follows:

“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.'

‘It is readily apparent from an examination of the complaint that if it went no further than the first three causes of action which are predicated upon an alleged breach of contract it would be fatally defective in that there is no allegation as to the ‘county in which such obligation is incurred’, nor is there any allegation that the purported agreement was a ‘special contract in writing’ as provided in said section 395. Armstrong v. Smith, 49 Cal.App.2d 528, 532, 122 P.2d 115. However, by virtue of the fourth cause, which is based upon an alleged fraud of the resident defendant Coffee and the nonresident defendant and appellant Newsom the action is properly triable in Stanislaus County, it being ‘the county in which the defendants, or some of them, reside at the commencement of the action’, and therefore the trial court properly denied the motion. Section 395, C.C.P.

‘Even if it be assumed, as appellant contends, that the allegations of the fourth cause are defective, nevertheless if such allegations do ‘no more than shadow forth the semblance of a cause of action’ they would be sufficient against such an attack upon a motion for a change of venue. McClung v. Watt, 190 Cal. 155, 160, 211 P. 17'.

I have read the record and briefs in Stokes v. Newsom and it appears that defendant Coffee filed a demurrer prior to the filing of defendant Newsom's demurrer and motion for change of venue, and that Coffee did not join in or consent to Newsom's motion.

Respondents next contend that the ‘clinching authorities' in support of their position are the companion cases of Kraft v. Innis, 57 Cal.App.2d 637, 135 P.2d 29, and Kraft v. Smith, 24 Cal.2d 124, 148 P.2d 23.

In Kraft v. Innis the action as originally commenced in Kern County, contained four separate causes of action: by Wanda Kraft (1) against Dr. Joseph Smith of Kern County for negligence in administering medical treatment; (2) against Dr. Samuel Smith of Kern County for negligence in administering dental treatment; (3) against Dr. Innis of Los Angeles County for negligence in administering medical treatment, said alleged negligence of Dr. Innis having occurred in Newhall Community Hospital, Los Angeles County; (4) by Roy Kraft, apparently the husband of Wanda Kraft, for consequential damages alleged to have followed from the alleged malpractice of the dentist and the two physicians.

Dr. Innis moved for a change of venue to Los Angeles and demurred on the grounds of misjoinder of parties and misjoinder of causes of action. The defendant residents of Kern County did not join in the motion for a change of venue and did not consent to the granting of the motion. Dr. Innis appealed from the order denying his motion for change of venue and in affirming the order the court said, 57 Cal.App.2d at page 640, 135 P.2d at page 31:

‘Had Doctor Innis been the only defendant in the action, his right to have the place of trial changed to Los Angeles County could not be doubted. In Brown v. Happy Valley Fruit Growers, Inc., 206 Cal. 515, 274 p. 977, 979, it was said: ‘The right of a defendant to have an action brought against him tried in the county in which he has his residence is an ancient and valuable right, which has always been safeguarded by statute and is supported by a long line of judicial decisions. ‘The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.’ Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209.'

‘While this is true, defendants Joseph Smith and Samuel Smith have the same right to have the case against them tried in Kern County, the place where they reside, as defendant Innis has to have the case against him tried in Los Angeles County, the place of his residence. Taff v. Goodman, 41 Cal.App.2d 771, 107 P.2d 431.’

Kraft v. Smith, supra, was an appeal by plaintiffs from an order sustaining the demurrer of defendant Innis without leave to amend in the action next hereinbefore discussed in which said defendant's motion for change of venue was denied. No question of venue was involved but merely the question of whether the causes of action were properly joined.

Respondents have cited a number of other cases in which there was one cause of action and all of the defendants were named in such cause of action, and in all of those cases it was held that the plaintiff had a right to have the action tried in the county in which any of the defendants resided. Appellant argues, and, we think, correctly, that such cases are no authority for or against the question here involved.

Respondents in a supplemental memorandum filed after the oral argument argued that appellants' contention that the fact that said appellants are not joined in certain causes of action requires that the motion for change of venue be granted is refuted by section 379b of the Code of Civil Procedure which provides: ‘It shall not be necessary that each defendant shall be interested as to all relief prayed for, or as to every cause of action included in any proceeding against him; but the court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.’ Appellants in reply contend that said subsection is not applicable to the question here involved, and point out that it deals exclusively with parties to civil actions and is not included within Part II, Title IV, which title deals with the subject of Place of Trial of Civil Actions.

Respondents in said supplemental memorandum also cite the recent case of Independent Iron Works v. American President Lines, 35 Cal.2d 858, 221 P.2d 939. This was an action to quiet title to personal property against a carrier in possession and two other defendants. The carrier, with its principal place of business in the City and County of San Francisco disclaimed all interest in the personal property involved except for a possessory lien. The other two defendants, residnets of Los Angeles County, moved for a change of venue to Los Angeles County upon the ground of their residence and on the further ground that the carrier was not an interested party. The order granting the motion for change of venue was reversed by the Supreme Court upon the ground that the carrier was a necessary and proper party to the action and that therefore plaintiff was entitled to have the action tried in the City and County of San Francisco. Appellants point out that in the Independent Iron Works case there was but a single cause of action naming all parties defendant, whereas in the instant case it is conceded by respondents that in a number of causes of action contained in the complaint no cause of action was stated against the defendant Lewis, the only resident of Alameda County.

The question presented upon this appeal is not free from difficulty because of apparently conflicting language in numerous cases. Appellants have relied principally upon Goossen v. Clifton and Hagan v. Gilbert, supra, and respondents with equal confidence have relied principally upon Stokes v. Newsom and Kraft v. Innis, supra. I have carefully considered and analyzed all of the decisions cited and all of the Code sections involved and believe that the true rule to be derived from the composite holdings of all of them is as follows:

Where a complaint states a single cause of action against a number of defendants against each and all of whom a cause of action is stated, plaintiff is entitled to have such cause tried in the county in which it is filed if one of the defendants is a resident of such county. Where in a complaint a plaintiff states a number of causes of action which may be properly joined in the same complaint under the liberal provisions of section 427 of the Code of Civil Procedure as amended in 1931, and in a number of said causes of action a resident defendant is joined with the other defendants, but in other causes of action only nonresidents are joined as defendants, in such a case the nonresident defendants are entitled to a change of venue to the county of their residence where the resident defendant in the other causes of action joins in the request or consents thereto.

I believe that Stokes v. Newsom, properly analyzed in the light of the issues there involved, is only authority that so far as the first three causes of action were concerned, if they were the only causes of action set forth, the defendant Newsom would be entitled to a change of venue because no cause of action was stated therein against a resident defendant, but that by virtue of the fourth cause of action being based upon the alleged fraud of resident defendant Coffee and nonresident Newsom, the action was properly triable in Stanislaus County.

I believe also that Kraft v. Innis, supra, so strongly relied on by respondents, is only authority for the following proposition: Where there are several defendants joined and there are several causes of action, in each of which only one defendant is named, one or more of said defendants being residents of the county wherein the suit was brought, a defendant or defendants who might have the right to remove, were they the only defendants, can not prevail on a motion for a change of venue unless the resident defendants join in the motion or consent thereto. In Kraft v. Innis the right of the nonresident defendant Innis to transfer the cause to the county of his residence could not prevail over the right of the resident defendant to have it retained in the county of his residence, but we believe that if the resident defendants had joined in or consented to the granting of the motion, the motion should have been granted.

Upon the oral argument counsel for respondents conceded that the case of Hagan v. Gilbert, supra, is in point but argued that it should not be followed. I believe that Hagan v. Gilbert is not only in point but that it should be followed. If a plaintiff desires to have a case tried in a particular county he may do so if the complaint only contains causes of action in which a resident defendant is joined but if he chooses to include in the complaint other causes of action in which only nonresidents are joined as defendants, he cannot defeat a motion for change of venue by such nonresident defendants if the resident defendant in the other causes of action joins in or consents to the granting of such motion.

In the instant case respondents chose to include in the complaint eight causes of action in which only nonresident defendants are joined. Their reasons for doing so are of no importance but, as I view the matter, having done so they were not entitled to defeat the motion of the nonresident defendants for a change of venue when such motion was joined in by the resident defendant named in the other causes of action. For as hereinbefore quoted from Goossen v. Clifton, supra, 75 Cal.App.2d 44, 170 P.2d 108: ‘The important right to protect is that of the defendant to have the cause tried in the county of his residence. For the plaintiff to be entitled to the exceptional right of having the cause tried in some other county, he must clearly bring himself within a statutory exception. If, by joining several causes of action, the defendant could be deprived of his right, the right would be lost in many cases. It is for that reason that the courts hold that the test is whether on any one of the causes of action the defendant is entitled to a change [of venue] to the county of his residence. If there is one such cause, then defendant is entitled to the change no matter how many other causes [of action] may be set forth in which he is not entitled to the change.’ See also Sexton v. Simondet, 97 Cal.App.2d 894, 218 P.2d 1021.

In view of the foregoing I would reverse the order

DOOLING, Justice.

GOODELL, J., concurs.

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