Gaalen

*373 Opinion

Petitioners seek a writ of mandate directing respondent court to grant their motion for a change of venue to the Stanislaus County Superior Court. (Code Civ. Proc., § 400.)

Real parties in interest filed an action for damages in the Superior Court of Merced County naming petitioners as defendants.

The issue in this case is whether a trial court has the power to permit a moving party in a motion for change of venue to file a late affidavit of merits in support thereof.

Petitioners noticed a motion for change of venue to the Superior Court of Stanislaus County. A document entitled “Declaration of Merits,” executed under penalty of perjury by petitioner Len Van Gaalen, Sr., was attached to this motion. The declaration stated:

The declaration omitted the averments which must be stated in the affidavit of merits prescribed by case law. (See Fernandez v. Fernandez (1938) 11 Cal.2d 568, 569 [ 81 P.2d 913 ].)

Real parties filed written opposition to the motion for change of venue urging its denial upon the ground that petitioners had failed to file an affidavit of merits as prescribed by Code of Civil Procedure section 396b. Section 396b provides that a motion for…