Opinion
E053884 Super.Ct.No. INC10005782
08-31-2011
WORLDWIDE CLASSIC MEDIA, INC. et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; JOHN ANDERSON et al., Real Parties in Interest.
Etess & Associates, M. Hank Etess; and David E. Rosenbaum for Petitioners. No appearance for Respondent. Anderholt Whittaker, J. John Anderholt, III, Roman M. Whittaker and Stephanie L. Weisman, for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. Randall Donald White, Judge. Petition granted in part; denied in part.
Etess & Associates, M. Hank Etess; and David E. Rosenbaum for Petitioners. No appearance for Respondent.
Anderholt Whittaker, J. John Anderholt, III, Roman M. Whittaker and Stephanie L. Weisman, for Real Parties in Interest.
In this matter we have reviewed the petition and the opposition filed by real parties in interest (plaintiffs). We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) We note that our order inviting a response expressly limited the issue under consideration to that of proper venue.
First, we reject plaintiffs' argument that the showing of nonresidence in Riverside County was inadequate. It was established that none of the individual defendants resided in Riverside County at the time the complaint was filed, which is the date on which proper venue is determined. (Code Civ. Proc., § 395.) The burden then shifted to plaintiffs to show that venue was otherwise proper. (California State Parks Foundation v. Superior Court (2007) 150 Cal.App.4th 826.) They failed to do so.
Plaintiffs correctly note that there is a conflict as to whether a claim for rescission and restitution based on fraud in the inducement is an action "on a contract" so that the county in which the claim arose would be proper for venue. (See and cf. Laurel Crest, Inc. v. Superior Court (1965) 235 Cal.App.2d 69; Postin v. Griggs (1944) 66 Cal.App.2d 147; Fitzhugh v. University Realty Co. (1920) 46 Cal.App. 198.) We need not resolve the issue because plaintiffs' cause of action for fraud and rescission clearly seeks tort damages and not just the contract remedy. Plaintiffs are bound by their pleading decisions, and defendants properly asserted their right to demand trial in the county in which at least one of them resides. (See generally 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 817, p. 1048.) We also note that the individual's right to trial in the county of his residence prevails over a venue that may be proper as to a corporate defendant. (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830.)
Accordingly, the petition for writ of mandate is granted insofar as it seeks a change of venue to Los Angeles County. In all other respects the petition is denied.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to vacate its order denying petitioners' motion for change of venue, and to enter a new order granting said motion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
In the interests of justice, the parties shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING Acting P. J. We concur: HOLLENHORST J. McKINSTER J.