MAXWELL v. Clarence V. Bowling, sued herein as ‘Bud Bowling’, Appellant.*

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

Waunita MAXWELL, Plaintiff and Respondent, v. Ralph R. MURRAY, Bud Bowling et al., Defendants, Clarence V. Bowling, sued herein as ‘Bud Bowling’, Appellant.*

Civ. 24945.

Decided: November 21, 1960

Frank W. Woodhead, Robert E. Morrow and Henry F. Walker, Los Angeles, for appellant. Loyal D. Frazier and Karl E. Dame, Oxnard, for respondent.

Plaintiff, a resident of Ventura County, filed suit there to recover damages for alleged injury to person and property resulting from an automobile accident which occurred in Los Angeles County. Defendant-appellant Bowling's residence is Alameda County. He therefore filed a motion for change of venue pursuant to section 395 of the Code of Civil Procedure which provides, inter alia, that: ‘If the action be for injury to person, or to personal property, * * * or negligence, either the county where the injury occurs, * * * or the county in which the defendants, or some of them, reside at the commencement of the action, shall be a proper county for the trial of the action.’

The plaintiff, under the authority of Code of Civil Procedure, section 396b, filed opposition to the defendant's motion on the ground ‘* * * that the convenience of the witnesses or the ends of justice * * *’ would be promoted by retaining the action in Ventura County. It is from the order of the court denying the motion for change of venue that defendant appeals.

It is agreed that the defendant is entitled to have a negligence action tried either in the county of his residence or the county where the tort occurred (Code Civ.Proc. § 395, supra; Cf. Brown v. Happy Valley Fruit Growers, 206 Cal. 515, 521–522, 274 P. 977), unless under the authority of section 396b of the Code of Civil Procedure, supra, the plaintiff can show that both the convenience of witnesses and the ends of justice will be served by retention of the action in the county where commenced (Edwards v. Pierson, 156 Cal.App.2d 72, 75, 318 P.2d 789; Churchill v. White, 119 Cal.App.2d 503, 507, 259 P.2d 974). In order to satisfy this burden, plaintiff's affidavit must indicate the names of the witnesses, the nature of the testimony which may be expected from them and the reasons why they would be inconvenienced by the transfer (Juneau v. Juneau, 45 Cal.App.2d 14, 17, 113 P.2d 463). The resolution of the issue rests largely in the sound discretion of the trial court (Wrin v. Ohlandt, 213 Cal. 158, 159, 1 P.2d 991). The sole question presented on this appeal is ‘whether the trial court abused its discretion, that is, whether it exceeded ‘the bounds of reason,—all the circumstances before it being considered.’' J. C. Millett Co. v. Latchford-Marble Glass Co., 167 Cal.App.2d 218, 224, 334 P.2d 72, 75.

The plaintiff filed a declaration in opposition to the motion for change of venue in which she averred ‘[t]hat there are five witnesses including the plaintiff who reside in the County of Ventura, to wit: Dr. A. L. Muff; Dr. Edward R. Lambert; Dr. W. A. Jones and Mr. F. E. Maxwell.’ The plaintiff's own convenience cannot be considered upon a motion for change of venue (Wrin v. Ohlandt, supra, 213 Cal. at page 160, 1 P.2d 991). And plaintiff has failed to indicate in any manner whatsoever the subject matter of F. E. Maxwell's proposed testimony; thus any inconvenience to him could not have been considered by the trial court (Peiser v. Mettler, 50 Cal.2d 594, 612, 328 P.2d 953).

Plaintiff declared further that she ‘is informed and believes that two police officers of the California Highway Patrol, who are assigned to Los Angeles County, will be witnesses * * * [and] will testify as to the cause of the accident and the liability, if any, of the defendants herein.’ It is correctly contended that the trial court could not properly consider any alleged inconvenience to these witnesses. Plaintiff has made her declaration, on its application to the police officers, on information and belief. It is axiomatic that such an allegation is entitled to little weight, particularly where, as in the present case, the source of that information is readily available (2 Cal.Jur.2d, Affidavits, § 21).

The only other witnesses that plaintiff indicated were residents of Ventura County were the three named doctors, who, plaintiff declared, ‘will testify to the nature and extent of the injuries sustained by the plaintiff’ in the accident. It is clear that ‘the convenience of experts should not be considered in determining the question of convenience of witnesses * * * except where the experts have a personal knowledge of the facts upon which their testimony is to be based.’ Figley v. California Arrow Airlines, 111 Cal.App.2d 285, 287, 244 P.2d 472, 473; Peiser v. Mettler, supra, 50 Cal.2d at page 611, 328 P.2d at page 962. Thus, the defendant must prevail unless the plaintiff's declaration indicates that the doctors will testify from their personal knowledge.

The declaration states generally the subject matter of the doctor's proposed testimony but fails to reveal directly the substance of what any of them would say, and we cannot with certainty determine the content of such testimony. As we said in Edwards v. Pierson, supra, 156 Cal.App.2d 72, 75, 318 P.2d 789, 791, in considering equally vague affidavits, ‘the vagueness of the affidavits at bar cannot be said to vitiate although it does present a situation which properly may be considered by the trial judge in exercising his discretion.’ Furthermore, ‘[t]he trial court may rely not only on the direct facts set forth in the affidavits, but also on any reasonable and relevant inferences arising therefrom’. Harden v. Skinner & Hammond, 130 Cal.App.2d 750, 755, 279 P.2d 978, 980; J. C. Millett Co. v. Latchford-Marble Glass Co., supra, 167 Cal.App.2d 218, 227, 334 P.2d 72.

Here, the facts alleged in plaintiff's declaration were in no way controverted by the defendant. Thus, the trial court was entitled to accept the allegations, together with the reasonable inferences therefrom, in exercising its discretionary power. The allegations that the doctors ‘will testify to the nature and extent of the [plaintiff's] injuries' and that they reside in the plaintiff's home county clearly permit the drawing of a reasonable inference that the doctors have personally examined or treated the plaintiff. It is both logical and valid that the trial court should have drawn such an inference. Therefore, it must be concluded that the doctors come within the ‘personal knowledge’ exception of the Figley case, supra.

It thus cannot be said that the trial judge abused his discretion in denying the defendant's motion for change of venue. As we have indicated, the court's discretion in such matters is broad and, in spite of the ineptness of the plaintiff's declaration, we cannot say that the trial court ‘exceeded the bounds of reason in concluding that the testimony of specified witnesses would be material and relevant and that the ends of justice and the convenience of these witnesses' would be promoted by retention of the action in the county where commenced. J. C. Millett Co. v. Latchford-Marble Glass Co., supra, 167 Cal.App.2d at page 228, 334 P.2d at page 78.


HERNDON, Justice.

FOX, P. J., and ASHBURN, J., concur.