287 P. 364 | Cal. Ct. App. | 1930
This cause is before us upon an appeal by the plaintiff from an order of the Superior Court granting the respondent's motion for a change of place of trial from the county of Placer to the county of Sacramento.
The complaint sets forth the residence of the plaintiff in the county of Placer and that the plaintiff was, during all the times mentioned in the complaint, a resident of said county; that the defendant is a corporation organized and existing under and by virtue of the laws of the state of California, and was, during all of the times mentioned in the complaint, such corporation, having its principal place of business in the city and county of Sacramento. The complaint further alleges that the defendant corporation is the publisher of a newspaper known as the "Sacramento Bee," and that on or about the twenty-fourth day of September, 1928, the defendant corporation printed and published in *250 said "Sacramento Bee," certain libelous matter of and concerning the plaintiff; that the issue of the paper containing such libelous matter was circulated in the city of Lincoln, in Placer County, and in the county of Placer generally. Damages on account of said alleged libelous publication are prayed for in the complaint.
The affidavit upon which the notice of motion for change of place of trial is based sets forth that the James McClatchy Publishing Company is a corporation, having its principal place of business in the city and county of Sacramento, and that a majority of the directors of the corporation were, at the time of the commencement of the action, residents of the county of Sacramento, and that none of them were, at the time of the commencement of the action, or at the time of the making of the affidavit, residents of the county of Placer. The notice of motion and motion follow the affidavit. The demand for change of place of trial is in the usual form. [1] The fact that the affidavit upon which the notice of motion was based, and upon which the demand for change of place of trial is predicated, refers to the fact that a majority of the directors of the defendant corporation were residents of the city and county of Sacramento, and that none of them were residents of the county of Placer, need not be considered for the simple reason that the directors are not made parties to this action. The cause is prosecuted simply against the defendant corporation, and there are no individual defendants named either in the title to the action or in any portion of the complaint. [2] We are confronted upon this appeal simply with the question as to whether a corporation sued in the county in which an alleged libel is circulated, is entitled to have the action transferred to the county of its principal place of business, for trial.
In support of the order granting its application for change of place of trial, the respondent relies solely upon the case ofGraham v. Mixon,
This being an action solely against a corporation, we must have resort to the Constitution controlling such actions. Section 16 of article XII reads: "A corporation or association may be sued in the county where the contract is made or is to be performed or where the obligation or liability arises or the breach occurs, or in the county where the principal place of business of such corporation is situate, subject to the power of the court to change the place of trial as in other cases."
In the case of Brady v. The Times-Mirror Co.,
In Tingley v. Times-Mirror Co.,
In line with these cases is the case of Cook v. W.S. RayMfg. Co.,
It is further held in the Cook case that the section of the Constitution referred to does not violate any of the provisions of the Fourteenth Amendment to the federal Constitution.
In Raphael v. Peoples Bank of Benicia,
In W.J. Bush Co. v. Van Camp S.F. Co.,
In Strassburger v. Santa Fe L.I. Co.,
In the case of Nakata v. Guarantee Mtg. Co.,
In the recent case of Ray Wong v. Anthony Co.,
[3] It likewise appears from a consideration of the cases that section 16 of article XII of the Constitution is self-executing, and in so far as it conflicts with any legislative enactment, it takes precedence. (7 Cal. Jur., p. 118, sec. 614.)
We think there is no escape from the conclusion, and what we have said, that the case of Graham v. Mixon, supra, relied upon by the respondent, and followed by the trial court, has no application to the question here presented, and that it was error to grant the respondent's motion for a change of place of trial.
The order appealed from is reversed.
Thompson (R.L.), J., and Finch, P.J., concurred.