Brunswick balke collender9/10/2023 ![]() ![]() Section 396b of the Code of Civil Procedure permitting the defendant to have certain actions tried in the county where he resides is remedial in nature and should be liberally construed to the end that a defendant may not be unjustly deprived of that right. It is plaintiffs' contention that under that section a motion for change of venue must be filed at the time the answer or demurrer is filed, otherwise the right to change of venue is waived, and that here defendant Bowell did not file a notice of motion when the joint demurrer was filed and Dooley made his motion, but rather consented to have Dooley's motion for a transfer to the City and County of San Francisco granted therefore Bowell waived his right to a change of venue in the first instance and his motion came too late. ![]() Upon the hearing of such motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the same transferred to the proper court." (Emphasis added.) an affidavit of merits and notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of such papers. the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he answers or demurs, files with the clerk. if an action or proceeding is commenced in a court having jurisdiction of the subject-matter thereof, other than the court designated as the proper court for the trial thereof. The court granted Bowell's motion, and the other motions and demurrers were ordered off the calendar.ĭooley's motion and Bowell's motion were made pursuant to sections 395, 396b and 397 of the Code of Civil Procedure. Plaintiffs moved to strike Bowell's motion on the ground that he had waived his right to have the venue changed. At the same time Bowell filed a separate amended demurrer. On May 14, 1941, and before any hearing was had on the demurrer, defendant Bowell filed a notice of motion for change of venue to San Mateo County, on the ground that his residence was there, accompanied by affidavits stating that San Francisco City and County and San Mateo County are adjacent to each other, the situs of the courts of the respective counties being thirty miles apart that he had theretofore consented to the change of venue to the Superior Court of the City and County of San Francisco moved for by Dooley because of "the proximity of the City and County of San Francisco, to the County of San Mateo, the place of residence of affiant, and that the trial of the action in the Superior Court of the State of California, in and for the City and County of San Francisco would not impose any undue hardship on affiant for the reasons stated" that he did not, and never intended to consent to the trial of the action in Los Angeles County that the corporation defendant consented to his requested change of venue. ![]() The motion for change of venue was set for hearing on May 9, 1941, but on May 7, 1941, plaintiffs dismissed the action as to defendant Dooley without prejudice. for the City and County of San Francisco." The corporation defendant also consented to the change. Accompanying Dooley's motion was an affidavit of merits by defendant Bowell in which he stated that "he. On April 29, 1941, defendants filed a joint demurrer to the complaint in the action, and at the same time defendant Dooley filed affidavits and notice of motion to change venue to the Superior Court of the City and County of San Francisco on the ground of his residence there, and that defendant Bowell did not reside in Los Angeles County. Plaintiffs commenced their action in the Superior Court of Los Angeles County on March 28, 1941. Bowell's motion was made upon the ground that the Superior Court for Los Angeles County was not the proper place of trial inasmuch as he is a resident of San Mateo County. Defendant Dooley resides in the city and county of San Francisco defendant Bowell resides in San Mateo County defendant, The Brunswick-Balke-Collender Company, is a foreign corporation authorized to transact business in this state. It is conceded that the action is of a character which the defendants are entitled to have tried in the superior court for the county of their residence. Plaintiffs appeal from an order of the Superior Court for Los Angeles County granting defendant Bowell's motion to change the place of trial of the above-entitled action from that county to the Superior Court for San Mateo County. O'Melveny & Myers, Pierce Works and Jackson W. Gibson, Dunn & Crutcher, Frederic Sturdy, David P. THE BRUNSWICK-BALKE-COLLENDER COMPANY (a Corporation) et al., Respondents. ![]()
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