KOSTAL v. PULLEN (1950)

The record herein shows that following the filing of plaintiffs' complaint, defendants on May 9, 1949, demurred, and at the same time filed a ‘Notice of Motion for Change of Place of Trial’, which was accompanied by an affidavit setting forth the facts upon which the motion would be based. Although no ‘Points and Authorities' as such, were filed, the notice of motion does state that it was made ‘pursuant to the provisions of Sections 395 and 396 of the Code of Civil Procedure.’ The minute order of the court, dated May 17, 1949, after sustaining defendants' demurrer, further ordered that the ‘motion for change of venue be, and the same is hereby denied.’ Respondents thereafter filed an amended complaint wherein the note, which formed the basis of their action, was set forth in full. The note showed on its face that the obligation therein incurred was made payable in the city of Los Angeles. To this amended complaint defendants, on May 31, 1949, again demurred and again filed a ‘Notice of Motion for Change of Place of Trial.’ Accompanying these documents was one entitled ‘Points and Authorities in Support of Motion for Change of Venue’, wherein the same code sections were again set forth, and in addition several citations were also noted. The trial court, by its order of June 21, 1949, overruled the demurrer and denied ‘defendants' motion for change of place of trial.’

Defendants' notice of appeal specifies that they are appealing from two orders of the trial court denying said motions for a change of venue, and since it was filed on July 5, 1949, was timely as to both orders.

It is appellants' sole contention that since the venue of the case was shown without dispute to be in Los Angeles county, the court erred in denying both motions.

Respondents concede that upon the face of the record before us defendants were entitled to a change of venue but argues that nevertheless the orders of the trial court were proper, in that (1) the filing of the notices of motion to move for a change of venue and the affidavits in support thereof did not constitute a motion, Hanovia Chemical & Mfg. Co. v. Keller, 82 Cal.App. 499, 255 P. 884, (2) in any event such documents were not accompanied by points and authorities as required by Rule 3(a) of the Rules for the Superior Courts, and (3) defendants' second motion was merely repetitious and hence was properly denied. Story v. Shristin, 137 Cal.App. 484, 30 P.2d 1016.

Since defendants' appeal from the first order is both meritorious and timely, it becomes unnecessary to discuss the appeal from the second order which, under the rule enunciated in Story v. Christin, supra, would appear to be without merit.

But likewise without merit is respondents' argument that no motion for change of venue was ever before the court. The notice as set forth in the Clerk's Transcript specified that on May 17, 1950, the defendants would move the court for an order transferring the cause to Los Angeles County. The minutes of the court on that day show that said motion was considered and that the court ordered that the same be denied. Therefore it is obvious from the record before us that said motion was regularly noticed, was heard on the date set forth in said notice, and that the court, after due consideration, made its order denying the same.

Turning to the contention that the order of the trial court denying appellant's motion for change of venue must be sustained upon the ground that there was a failure to comply with Rule 3(a) of the Rules for the Superior Court, we think the contention cannot be sustained. Concededly, the facts stated in the affidavit in support of the motion were sufficient to require the granting of that motion and since there was no denial of the truth of these facts as stated in the affidavit they must be taken as true. The trial court therefore could not have based its order denying the motion on any other ground than a failure to comply with the rule, and under the well-known rule that all presumptions and intendments favor the order or judgment of the court, we must assume that this was the basis for the court's order. So assuming, however, we cannot agree that there was not a sufficient, substantial compliance with the rule. It is true there was no document filed entitled ‘Points and Authorities in Support of Motion for New Trial’, but in view of the simple grounds upon which the motion was made, that is, residence of the moving party in Los Angeles County and the incurring of the obligation sued upon in that county, no other points and authorities need have been cited than the appropriate sections of the Code of Civil Procedure governing venue. Such citation was contained in the notice of motion and we hold that to have been, under the circumstances of this case, a sufficient compliance with the rule to make it error on the part of the trial court to deny the motion under the provisions of that rule.

For the foregoing reasons the purported appeal from the order of June 21, 1949 denying defendants' motion for a change of venue is dismissed, and the cause is remanded with instructions to the trial court to grant defendants' motion of May 9, 1949 for a change of venue.

PEEK, Justice.

ADAMS, P. J., and VAN DYKE, J., concur.