This is an appeal by the defendant from an order denying its motion for a change of the place of trial of this action. The plaintiff, a resident of San Diego County, brought this action against the city of San Diego to recover damages for the destruction of and injury to real and personal property owned by the plaintiff and situated in the county of San Diego. The injury was alleged to have been caused by reason of the defective construction and operation of the lower Otay dam and reservoir owned and operated by the defendant, which overflowed, causing great injury to adjoining property.
The complaint was filed in January, 1918, in the county of San Bernardino. In May, 1919, defendant filed a demurrer to the complaint, and, later, filed a motion to strike certain allegations from the plaintiff's amended complaint. After the demurrer had been overruled and the motion to strike out portions of the complaint had been denied, the defendant filed its written motion to have the action transferred for trial from said county of San Bernardino to a county other than the county of San Diego under the provisions of section 394 of the Code of Civil Procedure.
[1] The respondent herein has not seen fit to favor us with a brief in this matter setting forth his position with regard to the propriety of the order from which the appeal was taken; and we can only surmise that the motion was resisted in the lower court by the plaintiff upon the theory that it was made too late, because it was not filed at the time the defendant filed its demurrer to the complaint. We know of no reason for the denial of the motion of the defendant. The theory above set forth is without merit because the motion was not made under the provisions of section 396 of the Code of Civil Procedure, and was not a motion upon the ground that the action was not commenced in the proper county, and did not ask that the action be transferred to the proper county. *Page 564
It has been held in the case of Mono Power Co. v. LosAngeles, 33 Cal.App. 675, 682 [166 P. 387], that the only case in which it is necessary for the defendant to make such a motion at the time of first appearance is the case where the motion is upon the ground that the action has not been brought in the proper county. It is clearly stated in said last-mentioned case that in all other cases of change of place of trial it is not necessary that the motion be made at the time of first appearance.
The defendant in this case did not make its motion under the provisions of section 396 of the Code of Civil Procedure. It did not set up the fact that San Bernardino County was not the proper county, nor ask for a transfer to the proper county; but it exercised a special privilege granted to it under section394 of the Code of Civil Procedure, and demanded a change of place of trial irrespective of and without regard to whether the action was brought in the proper county or not.
As this motion was made under the provisions of section 394 of the Code of Civil Procedure, defendant was not obliged to make it at the time of its first appearance in the action. (Mono Power Co. v. Los Angeles, supra.)
The order appealed from is reversed, with instructions to the trial court to grant defendant's motion and transfer said action for trial from said county of San Bernardino to a county or city and county other than said county of San Bernardino and other than the county in which the plaintiff resides or is doing business, and other than the county in which the defendant city is situated.
Nourse, J., and Sturtevant, J., concurred. *Page 565