Opinion
12-3-1957
Henrietta M. PEISER et al., Plaintiffs and Appellants, v. Willie H. METTLER et al., Defendants and Respondents. * Civ. 22386.
Livingston & Borregard, Lawrence Livingston, Leo E. Borregard, Isabella H. Grant, San Francisco, for appellants. Vizzard, Baker & Sullivan, Maas & Nairn, Donahue & Goldberg, Bakersfield, for respondents.
Henrietta M. PEISER et al., Plaintiffs and Appellants,
v.
Willie H. METTLER et al., Defendants and Respondents. *
Dec. 3, 1957.
Rehearing Denied Dec. 20, 1957.
Hearing Granted Jan. 28, 1958.
Livingston & Borregard, Lawrence Livingston, Leo E. Borregard, Isabella H. Grant, San Francisco, for appellants.
Vizzard, Baker & Sullivan, Maas & Nairn, Donahue & Goldberg, Bakersfield, for respondents.
DORAN, Justice.
This is an appeal from an order granting defendants' motions to change the place of trial from Los Angeles County to Kern County. Grounds for the motion were (1) residence of defendants, (2) that the action involves damage and injury to real property located in Kern County, and (3) convenience of witnesses and to promote the ends of justice. The court stated that it was making an omnibus order 'on all grounds and granting all motions'.
The complaint herein is for damages for alleged breach of a written 'Farm Lease' executed May 25, 1945, from plaintiffs Ancker and Peiser to the defendant Willie H. Mettler, assigned by Mettler to defendants Fry on March 15, 1947. The Frys thereafter assigned the lease to defendant Garner as to one-half of the premises, and Garner subsequently assigned a portion of interest to defendant Moore. There are additional causes of action for conversion, waste and return of property.
The lease requires the original lessee, Mettler, to complete two wells, to irrigate the land, and to lay at least two miles of concrete pipe line and pipes for irrigation purposes. It is specified, 'That upon the expiration or sooner, or other termination of this lease all of said pipeline and pumps so built and installed as aforesaid, and all other improvements of a substantial or permanent character, or that may be attached to the land, shall revert to and become the absolute property of lessor, free and clear of any and all claims against the same'.
Damages are sought for alleged breach of the lease contract in that certain property was removed from the land, namely, one deep well shaft, bowl, pipeline, motor and pump, two tail water pumps and motors and pipelines attached, two dwelling houses, one duplex dwelling house, one general utility building, one shed and other buildings, for which plaintiff seeks damages in the amount of $31,275.20, and attorney fees provided for in the lease. The counts for conversion, restoration and redelivery relate to the same property, and there is a cause of action for waste to the real property arising out of the removal.
All defendants other than Willie H. Mettler, original lessee, were and are residents of Kern County; Mettler, although residing in Los Angeles County, conducts his business in Kern County and maintains records in the latter county. It is averred that all witnesses to be called by defendants reside in Kern County, and there is no showing that appellants will call any witnesses not residing in Kern County.
It is the respondents' claim that the plaintiff-appellants have joined Mettler as a defendant for the purpose of fixing venue in Los Angeles County; and that 'The principal case involved only a local action and appellants' complaint attempted to join a transitory action therewith merely for the purpose of fixing venue in the county where suit was filed'.
Appellants contend that the granting of the motions to change the venue to Kern County constituted reversible error; that the action is transitory and not local, and that the nature of the action is to be determined by the complaint; that all defendants, including Mettler, are liable for performance of the lessee's covenants; that the action was therefore properly brought in Los Angeles County.
Some twenty affidavits were filed in support of the respondents' motions. Appellants filed motions to strike out certain affidavits and parts of other affidavits, but no counter affidavits were filed. After argument, these motions to strike were denied, and the respondents' motions to change the place of trial from Los Angeles to Kern County were granted.
It is appellants' claim that the trial court should not have considered certain affidavits by witnesses who would testify to the existence of a custom and usage that buildings, pumps, etc., placed on land under conditions similar to those here existing, are considered portable and personal property; that testimony in respect thereto and concerning value of the property would be of an expert nature, and that convenience of such witnesses and of the parties should not be considered; that any such custom or usage was not known to appellants, and was not pleaded; and that evidence thereof would tend to vary and contradict the lease.
As said in Wrin v. Ohlandt, 213 Cal. 158, 159, 1 P.2d 991, and often quoted, 'It is well settled that a motion for a change of venue granted upon the convenience of witnesses rests largely in the discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing of its abuse'. A survey of the facts disclosed by the record fails to indicate any such abuse of this discretion.
Grounds for the motion in the instant case include not only the convenience of witnesses, but also residence of the defendants all but one of whom reside in Kern County; and that the action involves damage and injury to real property in Kern County. The motions were granted on all grounds and, if the trial court was justified in granting the change upon any of the grounds urged, the order must be affirmed. It cannot be said that the order made does not find support in the record or that appellants have suffered any prejudice.
Many affidavits were filed by the respondents in support of the motions to change the place of trial; the record does not disclose any counter affidavits filed on behalf of appellants. As stated in respondents' brief, there were various affidavits by Kern County residents from which a court could legitimately infer that there was a custom or usage generally known in that county and presumptively within appellants' knowledge, to the effects that pumps, etc., such as those removed by respondents, are considered movable personalty rather than as being permanently attached to the realty. Respondents do not seek to introduce such evidence for the purpose of varying the lease agreement, but as admissible under Code of Civil Procedure, Section 1870(12), 'to explain the true character of an act, contract, or instrument, where such true character is not otherwise plain'. Respondents also had in mind the rule that 'parties who contract as to a subject matter concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary. See Civil Code Section 1655'.
The existence of the custom or usage in question and appellants' knowledge thereof, express or implied, are questions of fact to be determined upon a plenary trial of the issues, rather than at the hearing of a motion to change the place of trial. As respondents state: 'Appellants are not entitled, on a motion for change in venue in which they have made no factual showing whatsoever, by affidavits or otherwise, to have the benefit of what would be in effect a summary judgment.'
In respect to affidavits relating to value of the property, objected to by appellants on the ground that convenience of expert witnesses should not be considered, it appears from the respondents' showing, that these witnesses 'had actually examined the property at approximately the time it was removed from appellants' property, and therefore had actual knowledge of the facts and circumstances upon which their testimony will be based. Therefore their convenience is relevant on the motion to change venue'.
A careful survey of the record indicates that the trial court gave due consideration to the complex facts involved, and committed no abuse of discretion or reversible error in granting a change of venue. All of appellants' contentions are found untenable.
The order is affirmed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 328 P.2d 953.