211 P. 17 | Cal. | 1922
This is an appeal from an order denying the motion of the individual defendant, Watt, for a change of venue. The city and county of San Francisco is the principal place of business of the corporation defendant and the action was instituted there. Defendant Watt's residence is *157 in the city of Sacramento. He demanded a change of place of trial from said city and county of San Francisco to the county of Sacramento upon two grounds: (1) that his residence was in Sacramento, and (2) that the corporation defendant was joined as a defendant solely for the purpose of having the action tried in the superior court of the city and county of San Francisco.
[1] It is one of the contentions of the individual defendant, Watt, made in support of the appeal that even though a corporation is properly joined as a defendant in the action and sued in the county where its principal place of business is located, nevertheless, the individual defendant is entitled, upon demand, to have the action tried in the county of his residence.
In support of this contention defendant Watt cites several cases in which it was held that the privilege given the plaintiff by article XII, section 16, of the state constitution, of suing a corporation defendant not only in the county of its residence but also "where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs," was waived by plaintiff if an individual was joined with the corporation as a defendant. (Griffen Skelly Co. v. Magnolia and Healdsburg Fruit Cannery Co.,
Section
Precisely the same situation was presented to this court inHellman v. Logan, supra, wherein an individual defendant attempted to have the trial changed from the county of the principal place of business of the corporation, properly joined with him, to the county of his residence. The court held that the motion for a change of venue was properly denied, saying: "If one of the parties necessary resides in the county in which the action is begun, the action is properly begun and may be tried in that county, although the other and principal defendant resides in another county. (C. C. P. 395.)" This being so, the individual defendant, Watt, is not privileged to have the trial changed to the county of his residence upon the theory that an individual defendant, merely because he is an individual, has a right superior to a corporation codefendant to have the action tried in the county of his residence. The correctness of the trial court's ruling, therefore, depends upon a solution of whether or not the corporation, in the instant case, was justly joined as a party defendant or was joined "solely" for the purpose of giving the court jurisdiction; that is to say, whether or not the complaint states, or attempts in good faith to state, a cause of action against the corporation.
[2] The motion for a change of place of trial to the county of the party's residence must be made by the moving party and determined by the court in advance of any other judicial action in the case. (Heald v. Hendy,
[4] Conceding these allegations to be faulty in form, and in a measure vague and indefinite and somewhat ambiguous, nevertheless, when considered in conjunction with the remaining allegations of the complaint, even though they be strictly construed, it cannot be said that they are so inherently and utterly devoid of merit as to be radically insufficient upon which to found a cause of action. In short, it cannot be held that the allegations of the complaint, concerning the corporation defendant, are clearly bad and manifestly the making of a sham and frivolous pleading. [5] If the allegations in question did no more than shadow forth the semblance of a cause of action they would be proof against assault upon the ground that they were sham and frivolous. (Giles Lithographicetc. Printing Co. v. Recamier Mfg. Co., 14 Daly [N.Y.], 475;Winn v. Waring, 2 Brev. [S.C.], 428; Hogencamp v.Ackerman,
[7] True it is the complaint as a whole, and the allegations in question in particular, may be susceptible to special demurrer for some insufficiency of fact, as well as ambiguity and uncertainty, but whatever defects there may be in the form and phrasing of the complaint it is not so grievous but that it may be cured by appropriate allegations, founded, of course, in truth, by amendment following a ruling upon demurrer. It is enough, however, upon the hearing and determination of the demand for a change of venue, that the cause of action purported to be stated against the corporation defendant was apparently pleaded in good faith and is not, prima facie, so glaringly and vitally defective as to be beyond correction by amendment.
We are satisfied that the facts pleaded against the corporation defendant would, in the absence of demurrer, warrant *162 and support a judgment against the corporation defendant for conniving at and knowingly becoming the recipient of the fruits of the fraud complained of against the individual defendant, Watt. This being so, it cannot be held that the defendant Watt is the only defendant against whom the facts pleaded in the complaint would justify a judgment, and consequently it cannot be said that the joining of the corporation as a party defendant in the action was made in bad faith and for the purpose of preventing a transfer of the action to the county of the residence of the defendant Watt.
The order appealed from is affirmed.
Wilbur, J., Lawlor, J., Shaw, C. J., Waste, J., and Sloane, J., concurred.