Goodpastor v. Cary , 2 Cal. App. 2d 635 ( 1934 )

HOUSER, J.

Appeal from an order denying plaintiff’s motion for a change of venue from Los Angeles County to the county of Alameda upon the ground of convenience of witnesses. The complaint filed in Alameda County, the residence of plaintiff, states an assumed cause of action for malpractice arising out of the relationship of physician and patient, committed in the city of Huntington Park, Los Angeles County. Defendant’s motion for a change of venue from the county of Alameda to the county "of Los Angeles, his place of residence, was granted. After answer had been filed by defendant, plaintiff filed her motion for change of place of trial to Alameda County. She now appeals from the order denying said motion.

The complaint charged that in the city of Huntington Park, state of California, during the months of February, March and April, 1930, defendant treated plaintiff for an ailment affecting her mouth and throat. During all said time plaintiff was a resident of Huntington Park. At the same time, defendant resided there, and still resides there.

Plaintiff’s motion was based upon subdivision 3 of section 397 of the Code of Civil Procedure, which in substance provides that the court may, on motion, change the place of trial “when the convenience of witnesses and the ends of justice would be promoted by the change”. The motion for change of place of trial was supported by affidavits of plaintiff and of her counsel. In opposition to such affidavits, defendant filed an affidavit made by his counsel wherein was set forth the respective names and addresses of nine physicians practicing in and about the city of Huntington Park, together with the statement “that the said and foregoing physicians and surgeons will testify that they are familiar with the degree of care and skill usually rendered in and about the locality of Huntington Park, Los Angeles County, California, and that in their opinion and in the opinion of all of them, in and about the matters and things done by defendant in the course of treatment followed and recommended by him conform to that degree of care and skill usually possessed and rendered by physicians and surgeons in good standing in the community of Huntington Park who are practicing under similar circumstances.”

It is a general rule that the granting of a motion for change of venue that is grounded on 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. (Wrin v. Ohlandt, 213 Cal. 158 [1 Pac. (2d) 991], and authorities there cited.)

Considering the issues raised by the pleadings, and especially the defense indicated by the testimony proposed to be given by the nine physicians, to which reference hereinbefore has been had, this court is of the opinion that in making the order in question no abuse of discretion was committed by the trial court.

The order is affirmed.

Conrey, P. J., and York, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 4, 1935.