Radio K-Dan, Inc. v. Superior Court

This is a petition for a writ of mandate, filed pursuant to Code of Civil Procedure, section 400, to review an order of respondent court granting defendant’s motion for change of venue from Los Angeles to Humboldt County on the ground that the latter county is that in which the real property, the subject of the action, is situated.

Petitioner contends that the court erred in granting the motion in that defendant, at the time of filing the motion, did not file an answer or demurrer and that the motion was not accompanied by an affidavit of merits as required by Code of Civil Procedure, section 396b. We think it unnecessary to consider the first contention in that the absence of the affidavit of merits is a fatal defect.

Section 396b provides that “. ... 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, under the provisions of this title, 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 ... an affidavit of merits and notice of motion for an order…