BURT v. James G. Searborough, A. J. McFadden, Allison Honer and C. S. Wheeler, Respondents.*

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

Athalle Irvine BURT, Petitioner and Appellant, v. IRVINE COMPANY, a West Virginia corporation, A. J. McFadden, N. Loyall McLaren, James G. Scarborough, Robert H. Gerdes, Allison Honer and C. S. Wheeler, Defendants. James G. Searborough, A. J. McFadden, Allison Honer and C. S. Wheeler, Respondents.*

Civ. 24879.

Decided: May 25, 1961

Loeb & Loeb, Howard I. Friedman, Los Angeles, for appellant. McCutchen, Doyle, Brown & Enersen, San Francisco, McCutchen, Black, Harnagel & Shea, Los Angeles, Morris M. Doyle, San Francisco, George Harnagel, Jr., Jack T. Swafford, Los Angeles, for respondents.

Petitioner appeals from an order changing from Los Angeles County to Orange County the place of trial of her proceeding for writ of mandate. She is a stockholder and director of The Irvine Company and, having been denied the alleged right to attend directors' meetings ‘accompanied by counsel of her choice, whose presence would be for the purpose of rendering such legal advice and assistance to her as may be required during the course of such meetings,’ Mrs. Burt filed in Los Angeles County a petition for mandate against all the other directors and the corporation, commanding them to recognize her asserted right to be accompanied by counsel of her own choice at all future directors' meetings.

It is conceded by appellant that all individual defendants (respondents) other than James G. Scarborough are residents of Orange County or the City and County of San Francisco. Scarborough and three other directors, McFadden, Honer and Wheeler, who reside in Orange County, moved for change of venue to that county and the motion was granted over opposition. Both sides concede that the correctness of the ruling turns upon the question of whether Mr. Scarborough is a resident of Los Angeles County and that the answer to that question must depend upon a determination of whether a defendant can have for venue purposes more than one residence—both Los Angeles and Orange Counties. It is further conceded by counsel for both appellant and respondents that the evidence warrants the court's implied finding that Scarborough is domiciled in Orange County and that he has a residence in each of Los Angeles and Orange Counties if one may have multiple residences for venue purposes.

Appellant argues that a defendant may have more than one residence within the law of venue and hence residence and domicile are not interchangeable terms in this area of the law. Respondents contend that the statutes and decisions governing venue permit of only one residence which must be a domiciliary one.

Section 395, Code of Civil Procedure, provides with respect to transitory actions that ‘the county in which the defendants, or some of them, reside at the commencement of the action’ is the proper county for the trial thereof. As enacted in 1872, § 395 contained the quoted phrase and that has been true over the intervening years. The section contains no definition of residence, but Political Code § 52, as enacted in 1872, provided: ‘Every person has, in law, a residence. In determining the place of residence the following rules are to be observed: 1. It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose; 2. There can only be one residence; 3. A residence cannot be lost until another is gained; * * * 7. The residence can be changed only by the union of act and intent.’ Section 4480, Political Code of 1872, said: ‘With relation to each other, the provisions of the four Codes must be construed (except as in the next two sections provided) as though all such codes had been passed at the same moment of time, and were parts of the same statute.’ Sections 4481 and 4482 relate to conflicts. This same language is included in an appendix to the 1874 edition of the Code of Civil Procedure.

Section 52, Political Code, has been carried into Government Code §§ 243 and 244, which read: § 243. ‘Every person has, in law, a residence.’ § 244. ‘In determining the place of residence the following rules are to be observed: (a) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose. (b) There can only be one residence. (c) A residence can not be lost until another is gained. * * * (g) The residence can be changed only by the union of act and intent.’ Section 4480, Political Code, has been transferred to § 23.2, Civil Code, which appears under the caption, ‘Effect of the 1872 Codes,’ and reads: ‘Construction of 1872 Codes. With relation to each other, the provisions of the four codes shall be construed as though all such codes had been passed at the same moment of time and were parts of the same statute.’

Lowe v. Ruhlman, 1945, 67 Cal.App.2d 828, 833, 155 P.2d 671, 674, which involved the construction of a condition in a deed containing the words ‘reside’ and ‘residence’ says, after referring to § 52, Political Code, and §§ 243–244, Government Code: ‘The sections of the Government Code referred to above define the concept of ‘domicile’ rather than the concept of ‘residence’ as that term is used in the deed.' This is boubtless true, as is evidenced by the discussion of residence and domicile found in the Commissioners' notes original § 52, Political Code (at pp. 28–32). The command of § 4480 Political Code clearly imported this domiciliary residence concept into § 395, Code of Civil Procedure, and no statutory change has occurred which alters that effect. Moreover, it is settled decisional law. 45 Cal.Jur.2d § 162, page 644: ‘For the purposes of statutory construction they [the four codes] are regarded as blending together and constituting but a single statute. They must be read and construed together as though all were passed at the same time. When there is a conflict, the conflicting provisions must be harmonized so that all may have effect, if possible.’

It seems clear, without the aid of court precedents, that the word ‘residing’ as used in § 395 contemplates domiciliary residence and nothing less. Of course there can be only one such residence; that is inherent in the concept of domicile. We refer to domiciliary residence, not mere domicile without residence.

One of the earliest cases passing upon the point is Younger v. Spreckels, 1909, 12 Cal.App. 175, 106 P. 895. In reversing an order denying defendant's motion for change of place of trial the court said, 12 Cal.App. at page 177, 106 P. at page 896 ‘Within the contemplation and meaning of the statute a person can have but one bona fide residence. Residence depends upon intention as well as fact; and in its ordinary acceptation it is the place where one remains when not called elsewhere on business, pleasure or for other temporary purpose. The mere inhabitancy of a summer home or country house at certain seasons of the year or at certain times would not make the party inhabiting said house a resident of the county in which such house is situated. The material question is the animo manendi. Although one may abide at times in a place for pleasure or health or repose it does not become his domicile unless it be his intention to remain there. The place of residence within the meaning of the statute is the fixed home of a party as understood by himself and his neighbors and friends.’ The Supreme Court denied a hearing.

Marston v. Watson, 1912, 20 Cal.App. 465, at page 468, 129 P. 611, at page 612, a venue case, says: ‘Residence, in the language of the Code (Pol.Code, sec. 52), is ‘the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose.’ In the Civil Code the term is used as synonymous with ‘domicile’ (sec. 129). Residence indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. If a person actually ‘lives' in a certain place with the intention of remaining there indefinitely that place must be said to be his residence. In other words, the abiding is animo manendi when residence is acquired.’

Sherman v. Reynolds, 1927, 83 Cal.App. 403, 406, 256 P. 846: ‘In Chambers v. Hathaway, 187 Cal. 104, 105, 200 Pac. 931, 932, it is said: ‘Where a person has two dwellings in different places and resides a part of his time in one place and a part of the time in another alternatively, the question which of the two places is his legal residence is almost altogether a question of his intent.’ Residence can only be changed by the union of act and intent.' 20 Cal.App. at page 407, 256 P. at page 847: ‘Younger v. Spreckels, 12 Cal.App. 175, 106 Pac. 895. In this case it is said: ‘Within the contemplation and meaning of the statute a person can have but one bona fide residence.’'

Other cases to the same effect—that there can be but one residence for purposes of venue—are: Stone v. Everts, 1928, 203 Cal. 197, 198, 263 P. 236; Smilie v. Smilie, 1914, 24 Cal.App. 420, 424, 141 P. 829; Catsiftes v. Catsiftes, 1938, 29 Cal.App.2d 207, 210, 84 P.2d 258; Estate of Foster, 1959, 170 Cal.App.2d 314, 316–317, 338 P.2d 625; Simpson v. Hosin, 1920, 49 Cal.App. 585, 586, 193 P. 867; Johnston v. Benton, 1925, 73 Cal.App. 565, 569–571, 239 P. 60; Enter v. Crutcher, 1958, 159 Cal.App.2d Supp. 841, 844–845, 323 P.2d 586.

That such is the weight of authority appears from an annotation found in 12 A.L.R.2d 758–760.

The matter is well summarized in 51 Cal.Jur.2d § 33, page 68: “Residence,' as the term is used in the general statute making transitory actions triable in the county of the defendant's residence, depends on intention as well as fact, and is synonymous with ‘domicile’—the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose. Residence indicates permanence of occupation as distinguished from lodging or boarding or temporary occupation—a living in a certain place with the intention of remaining there indefinitely. And within the meaning of the venue statutes a person can have but one residence.'

Invoking non-venue cases appellant argues that ‘For venue purposes, the modern cases have established that ‘residence’ does not mean ‘domicile.” Also: ‘As we indicated in our opening brief, the doctrine that ‘residence’ means ‘domicile’ has been eroded consistently in the modern cases and in the view of the leading text writers. * * * California has, in recent years, recognized the distinction between ‘domicile’ and ‘residence.’ That distinction has been unequivocally drawn with respect to Section 395. California has also recognized the principle of multiple ‘residence’ once the term is divorced from ‘domicile.’ We concede that no case has, as yet, applied the two principles together in a venue context.' Also: ‘The older authorities upon which respondents' case depends represent the philosophy of a bygone era.’

These assertions are far too broad. The distinction between residence and domicile was recognized at the time of enactment of § 395 as the Code Commissioners' note to Political Code § 52 plainly discloses. No recent authorities have adopted the multiple residence test of venue and only one of them squints in that direction, i. e., Bohn v. Better Biscuits, Inc., infra.

Briggs v. Superior Court, 1947, 81 Cal.App.2d 240, 245, 183 P.2d 758, 762, says: ‘Residence, as used in the law, is a most elusive and indefinite term. It has been variously defined, and means one thing under the attachment laws, another under the voting laws, and still another under the venue laws.’

Primarily appellant seems to rely upon Smith v. Smith, 1955, 45 Cal.2d 235, 288 P.2d 497, which involved the validity of service of process outside the state pursuant to § 417, Code of Civil Procedure, upon one who was claimed to be ‘a resident of this State.’ Defendant moved to vacate the decree upon the ground that he was not a resident. No question of venue was involved and the statute was enacted in 1951, not 1872. The court decided that ‘[w]ith respect to section 417 of the Code of Civil Procedure, it must be concluded that the word ‘resident’ is used in reference to domicile, and hence means ‘domiciliary.” 45 Cal.2d at page 240, 288 P.2d at page 499. Leading up to this conclusion the opinion discusses the meaning of residence and domicile and the distinction between the two terms. At page 239 of 45 Cal.2d at page 499 of 288 P.2d: ‘As used in section 417, the word ‘resident’ has not been specifically defined by code or judicial decision and its meaning must therefore be determined here. Courts and legal writers usually distinguish ‘domicile’ and ‘residence,’ so that ‘domicile’ is the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively; whereas ‘residence’ connotes any factual place of abode of some permanency, more than a mere temporary sojourn. ‘Domicile’ normally is the more comprehensive term, in that it includes both the act of residence and an intention to remain; a person may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time. 28 C.J.S. ‘Domicile,’ § 1, p. 1 et seq.; 16 Cal.Jur.2d ‘Domicile,’ §§ 2–3, pp. 647–649. But statutes do not always make this distinction in the employment of those words. They frequently use ‘residence’ and ‘resident’ in the legal meaning of ‘domicile’ and ‘domiciliary,’ and at other times in the meaning of factual residence or in still other shades of meaning. (Rest., Conflict of Laws, § 9, com. e; 17 Am.Jur. ‘Domicile,’ § 9, p. 593.) For example, in our codes ‘residence’ is used as synonymous with domicile in the following statutes: sections 243 and 244 of the Government Code, giving the basic rules generally regarded as applicable to domicile, Lowe v. Ruhlman, 67 Cal.App.2d 828, 833, 155 P.2d 671.' At page 240 of 45 Cal.2d, at page 499 of 288 P.2d: ‘As stated in the Briggs case, 81 Cal.App.2d at page 245, 183 P.2d at page 762: ‘Residence, as used in the law, is a most elusive and indefinite term. It has been variously defined * * *. To determine its meaning, it is necessary to consider the purpose of the act.’' After so doing, the court reached the conclusion above quoted. There is nothing in this opinion about venue or §§ 52 and 4480 of the Political Code and their relation to original Code of Civil Procedure § 395; nothing about the soundness of the cases previously cited herein concerning the meaning of residence when used in venue cases; no erosion of earlier decisions here.

Bohn v. Better Biscuits, Inc., 1938, 26 Cal.App.2d 61, 78 P.2d 1177, 80 P.2d 484, upon which appellant's counsel rely as one of their eroding agencies, is a venue case but it concerns the place for trial of a transitory suit against a foreign corporation, not an individual. The plaintiff contended that defendant could be sued in any county of the state because a foreign corporation had no residence in California. Discussing first the meaning and effect of § 395, Code of Civil Procedure, the court said that, though the domicile of the corporation was in Michigan, the place designated by it as its principal place of business in this state pursuant to statute constituted its residence for purposes of suit. The court's treatment of § 395 uses language to the effect that the word ‘resides' as used in that section does not mean ‘domicile’; this portion of the opinion was declared in Hale v. Bohannon, 38 Cal.2d 458, 478[27], 241 P.2d 4, to be dictum.

The court in the Bohn case, supra, after considering § 395 turned to the constitutional provision, § 16, article XII, which provides that a corporation may be sued in the county where the principal place of business is situated and held that that provision applies to foreign as well as domestic corporations, and that it was error to deny defendant's motion for change of place of trial to the county of its principal place of business in California. The Supreme Court denied a hearing.

The effect of denial of a hearing is thus set forth in Cole v. Rush, 45 Cal.2d 345, 351, 289 P.2d 450, 453, 54 A.L.R.2d 1137, footnote 3: ‘Denial of a hearing is not the equivalent of express approval by this court but it has been said that ‘The order of this court denying a petition for a transfer * * * after * * * decision of the district court of appeal may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion.’ Eisenberg v. Superior Court (1924), 193 Cal. 575, 578, 226 P. 617; see also People v. Rowland (1937), 19 Cal.App.2d 540, 542, 55 P.2d 1333. The significance of a denial in any particular case is also to be understood as further qualified by the fact that under the Rules on Appeal a denial may mean no more than that a ground which we deem adequate or impellent for ordering a hearing has not been brought to our attention. (See Rule 29, Rules on Appeal.)' The applicability of this rule to the Bohn case, supra, is emphasized by the language there used by the Supreme Court: ‘On consideration of the petition for hearing in this court after decision of the appeal by the District Court of Appeal, it appearing that in substance and effect, the views expressed by the District Court of Appeal in its written opinion with reference to the question at issue correctly declare the conclusions in that regard that have been reached by this court, it is ordered that said petition for hearing be and it is denied.’ (Emphasis added.) 26 Cal.App.2d at page 72, 80 P.2d at page 485. That this vague language was not intended to be an approval of the language or reasoning of the Bohn opinion further appears from the following passage quoted from Hale v. Bohannon, supra, 38 Cal.2d 458, 474, 241 P.2d 4, 13: ‘Section 16, article XII, of the Constitution first was applied to foreign corporations in Bohn v. Better Biscuits, Inc., 26 Cal.App.2d 61, 78 P.2d 1177 * * *.

‘In the Bohn case there is an extensive discussion of section 395, designed primarily to negative the argument that a foreign corporation which has complied with section 405 is a nonresident. Some of the language, here relied upon by the lumber company, is both unnecessary to the decision and overly broad. Without citation of authorities, the court said that section 395 applies ‘to persons both natural and artificial and whether the corporation is a domestic or a foreign corporation.’ 26 Cal.App.2d at page 65, 78 P.2d at page 1178. It also stated that ‘it has never been held that its provisions did not apply to corporations.’ 26 Cal.App.2d at page 65, 78 P.2d at page 1180.

‘That these statements are dictum clearly appears from the following paragraph * * *.’ (Emphasis added.) In these circumstances the Bohn case (decided in 1938) can scarcely be said to prevail over the numerous cases to the contrary which are cited supra; nor can it be said to have eroded to any degree the holdings in the cases of Estate of Foster, supra, 1959, 170 Cal.App.2d 314, 316–317, 338 P.2d 625, and Enter v. Crutcher, supra, 1958, 159 Cal.App.2d Supp. 841, 844–845, 223 P.2d 586, both of which were decided subsequently to Bohn.

Other non-venue cases cited by appellant are Briggs v. Superior Court, supra, 81 Cal.App.2d 240, 183 P.2d 758 (motion to quash service under § 404, Vehicle Code); Lowe v. Ruhlman, supra, 67 Cal.App.2d 828, 155 P.2d 671 (construction of word ‘reside’ as used as a condition in a deed); Ungemach v. Ungemach, 61 Cal.App.2d 29, 142 P.2d 99 (residence for purpose of divorce); Huston v. Anderson, 145 Cal. 320, 78 P. 626 (right to vote); Estate of Glassford, 114, Cal.App.2d 181, 186, 249 P.2d 908, 34 A.L.R.2d 1259 (residence as basis for probate); Bragg v. Bragg, 32 Cal.App.2d 611, 90 P.2d 329 (divorce); Myers v. Carter, 178 Cal.App.2d 622, 3 Cal.Rptr. 205 (failure to file cost bond). The Briggs, Lowe, Huston and Glassford cases arose under statutes other than the four original codes and hence do not fall within the command of § 4480 of original Political Code or § 23.2 of the present Civil Code. The other cited non-venue cases do not consider the effect of said §§ 4480 and 23.2. At best it may be said that they discuss generally the distinction between residence and domicile and do not impinge upon the self-evident proposition that § 395 was enacted with the intention of applying § 52, Political Code, to venue matters.

Counsel for both sides agree that throughout the years subsequent to 1872 § 395, though amended from time to time, has always retained the phrase ‘the county in which the defendants, or some of them, reside at commencement of the action.’ The failure of the legislature, when amending or revising a code section or other statute, to make any change in a given portion of same affords cogent evidence that the legislature intends thereby to retain that clause with the meaning attached to it as declared in previously decided cases,—in this case residence in the sense of domiciliary residence.

Government Code § 9605 says: ‘Where a section or part of a statute is amended, it is not to be considered as having been repealed and re-enacted in the amended form. The portions which are not altered are to be considered as having been the law from the time when they were enacted; the new provisions are to be considered as having been enacted at the time of the amendment; and the omitted portions are to be considered as having been repealed at the time of the amendment * * *.’ This section is based upon former § 325, Political Code.

The case law supplements this by attributing to the legislature an intent to carry the unchanged provision forward with the meaning attached to it by former judicial decisions. Holmes v. McColgan, 17 Cal.2d 426, 430, 110 P.2d 428, 430: “It is a cardinal principle of statutory construction that where legislation is framed in the language of an earlier enactment on the same or an analogous subject, which has been judicially construed, there is a very strong presumption of intent to adopt the construction as well as the language of the prior enactment.' Summers v. Freeman, 128 Cal.App.2d 828, 832, 276 P.2d 131, 134: ‘Thereafter the Legislature amended the section, Stats.1953, pp. 2215–2216, by adding the words ‘at the time the signature is obtained.’ This was apparently done to meet the construction placed on the section in the Gelber case, supra [Schurz v. Gelber, 117 Cal.App.2d 681, 256 P.2d 634], that it did not require delivery of a copy ‘forthwith’, but in the face of the court's other statement in that case that the statute does not ‘provide that the agreement shall be invalid if the broker fails to deliver such copy’ the Legislature made no change in the section in that respect. This must be taken as a legislative acquiesence in that judicial construction of the section. Holmes v. McColgan, 17 Cal.2d 426, 430, 110 P.2d 428; Hunt v. Superior Court, 93 Cal.App.2d 504, 507, 209 P.2d 411; Armstrong v. Armstrong, 85 Cal.App.2d 482, 485, 193 P.2d 495.'

Accord: Baum v. Aleman, 139 Cal.App.2d Supp. 929, 932, 293 P.2d 162; 45 Cal.Jur.2d § 124, page 633.

Thus we have a continuous legislative expression of its intent to preserve for venue purposes the domiciliary residence inherent in the original § 395, Code of Civil Procedure.

Order affirmed.

ASHBURN, Justice.

FOX, P. J., and McMURRAY, J. pre tem., concur.