Carruth

Carruth v. Superior Court

Good Law

145 Cal. Rptr. 344·1978 Cal. App. LEXIS 1411·80 Cal. App. 3d 215·12 A.L.R. 4th 1269

Court of Appeal of CaliforniaApril 21, 1978Civ. 18124California2,791 words

Opinion

Brown, J.

Lowell T. Carruth and the law partnership of which he is a member, McCormick, Barstow, Sheppard, Coyle & Wayte (MBSC&W), seek a writ of mandate to compel the San Diego County Superior Court to grant their motion for change of venue (Code Civ. Proc., § 400).

In the underlying action, Roger D. Stoike real party in interest, seeks damages from petitioners for malicious prosecution. The complaint alleges petitioners maliciously, and without probable cause, sued Stoike in San Diego County Superior Court for medical malpractice. The complaint further alleges: “As a direct and proximate result of the [petitioners] bringing the ... action against [Stoike], [he] has been injured in his good name and reputation and . .. has been caused grievous mental and emotional suffering and distress.. . .”

Claiming the action was not commenced in a proper court (Code Civ. Proc., § 396b), petitioners moved for a change of venue to Fresno County based upon Code of Civil Procedure section 395. Subdivision (a) of that section provides in pertinent part: “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the…

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