Medlock v. Peoples Temple •
Temple Appeal in Decision on Change of Venue

BB-31-b-171

No. ___

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DIVISION
DIVISION _____

JAMES WARREN JONES, also known as Jim Jones; PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST, a non-profit corporation; ENOLA M. NELSON; HUGH FORTSYN [Hue Fortson]; and JAMES MCELVANE,
Petitioners

v.

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES,
Respondent,
[WADE B. MEDLOCK and MABEL M. MEDLOCK, Real Parties In Interest.]

PETITION FOR WRIT OF MANDATE
AND
MEMORANDUM OF POINTS AND AUTHORITIES
Motion to Vacate the Judgment of the
Superior Court of the State of California in
and for the City and County of Los Angeles

CHARLES R. GARRY
GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
1256 Market Street
San Francisco, California 94102
Telephone: (415) 864-3131
Attorneys for Petitioners

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[Editor’s note: Parties to action listed exactly as on the first page.]

PETITION FOR WRIT OF MANDATE
AND
MEMORANDUM OF POINTS AND AUTHORITIES

The Petitioners petition this Court for a Writ of Mandate directed to the Respondent Superior Court In and For The County of Los Angeles, and by this petition allege:

1. Beneficial Interest of Petitioners

The Petitioners are defendants in a cause which was commenced in the Superior Court of the State of California in and for the County of Los Angeles entitled WADE B. MEDLOCK and

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MABEL M. MEDLOCK, husband and wife v. JAMES WARREN JONES, also known as Jim Jones; PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST, a non-profit corporation; ENOLA M. NELSON; ENOLA M. NELSON REALTY; HUGH FORTSYN; JAMES MCELVANE, and FIRST DOE through FIFTIETH DOE, inclusive, (Los Angeles County Superior Court No. 24-3292); and seek relief from the Respondent Superior Court’s order dismissing the petitioners’ motion for change of venue.

2. Capacity of Respondent

The Respondent is and has at all times mentioned herein been a Superior Court of the State of California and was the form in which the Petitioners move for a change of venue in the aforesaid action No. 24-3292, WADE B. MEDLOCK and MABEL M. MEDLOCK v. JAMES WARREN JONES and Others.

3. Beneficial Interest of the Real Parties In Interest

The Real Parties In Interest are and have been all material times been the Plaintiffs in the aforesaid action No. 24-3292, WADE B. MEDLOCK and MABEL M. MEDLOCK v. JAMES WARREN JONES and Others.

4. Statement of Facts

On September 1, 1978 Petitioners filed a motion in the Respondent Superior Court for a change of place of trial of the aforesaid action No. 24-3292 entitled WADE B. MEDLOCK and MABEL M. MEDLOCK v. JAMES WARREN JONES and Others on the grounds that,  pursuant to the provisions of the California Code of Civil Procedure relating to the place of trial of civil actions, the Respondent Superior Court in and for the County of Los Angeles

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was an improper court for the trial of the said action, and the Superior Court of the State of California in and for the County of San Francisco was and is a proper court. (Exhibit “A”.)

On October 6, 1978 the Petitioners’ said motion was heard and dismissed by the Honorable Jess Whitehill, Judge Pro tem and Department 88A of the Respondent Court. Notice of the Respondent Court’s order dismissing the Petitioners’ motion was received by the Petitioners on October 20, 1978.

5. Basis for Relief:

By virtue of the provisions of the California Code of Civil Procedure relating to place of trial of civil actions and the facts made known to the Respondent Court by the Petitioners in their said motion for change of venue, the Respondent Court erroneously determined that the Superior Court in and for the County of Los Angeles is a proper forum for the trial of the said action No. 24-3292.

Respondent Court has a clear and present judicial duty to order that the place of trial of the said action No. 24-3292 be changed from the Superior Court in and for the County of Los Angeles to the Superior Court in and for the County of San Francisco by reason of §§ 395, 397, and 398 of the California Code of Civil Procedure.

6. The Petitioners have performed all conditions precedent to the filing of this petition by moving for a change of venue in the Respondent Court on October 6, 1978, which motion was dismissed as aforesaid.
7. This petition is made to this Honorable Court in the first

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instance rather than to the Superior Court of the State of California, County of Los Angeles, for the following reason, namely, that pursuant to § 400 of the California Code of Civil Procedure the appropriate pencil method of obtaining relief from the Respondent Court’s order denying their motion for change of venue is by way of a petition to the Court of Appeal for the district in which the Respondent Court is situated for a Writ of Mandate requiring trial of the case in the proper court.

WHEREFORE, the Petitioners pray that:

1. An alternative Writ of Mandate issue under the seal of this Honorable Court commanding the Respondent Superior Court in and for the County of Los Angeles, its officers, agents, and all other persons acting on its behalf or through its orders to vacate its said order of October 6, 1978 dismissing the Petitioners’ motion for change of venue and to order that the trial of the said action No. C24-3292 between the Real Parties In Interest herein as Plaintiffs and the Petitioners herein as Defendants be transferred to the Superior Court of the State of California in and for the County of San Francisco, or to show cause before this Honorable Court at a time and place then or otherwise specified by court order, why a peremptory writ should not issue;
2. That on the return of the alternative writ in the hearing of this petition, this Honorable Court issue is peremptory writ of mandate commanding the Respondent Superior Court, its officers, agents and all other persons acting on its behalf or through its orders to vacate its said order of October 6, 1978 and

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to order that the trial of the said action No. C-24-3292 be transferred to the Superior Court of the State of California in and for the County of San Francisco;

3. For such other or further relief as this Honorable Court deems just and proper.

Dated: October 27, 1978

GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
by /s/ CHARLES R. GARRY
CHARLES R. GARRY
Attorney for Petitioners

NEIL ROSENBAUM
Barrister of Gray’s Inn
Attorney of New York and Pennsylvania Bars

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MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS

On or about June 7, 1978 the Real Parties in Interest to this petition filed a complaint in the Superior Court of the State of California in and for the County of Los Angeles against, inter alia, the Petitioners.

The said complaint alleges three causes of action. The first cause of action is an alleged conversion by the Petitioners and an additional defendant, namely, Enola M. Nelson Realty, of property owned by the Real Parties in Interest. The second and third causes of action are alleged conspiracies by the petitioners, with the exceptions of Enola M. Nelson and Hugh Fortsyn [Hue Fortson] (in the third cause of action) intentionally to inflict emotional distress and mental suffering on the Real Parties in Interest.

On September 1, 1978 the Petitioners filed a Notice of Motion for Change in Venue in the Respondent Court. Filed with the said Notion of Motion were: (1) a Memorandum of Points and Authorities in Support of Motion for Change of Venue; (2) a Declaration of Merits and Residence in Support of Motion by James McElvane; and (3) a Declaration of Merits and Residence in Support of Motion by June Crym, Treasurer of the Peoples Temple of the Disciples of Christ (hereinafter referred to as the “Peoples Temple”). James McElvane’s said Declaration was filed in the Respondent Court on September 26, 1978.

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On or about October 1, 1978 the Real Parties in Interest filed “Plaintiffs’ Points and Authorities in Opposition to Motion for Change of Venue.”

At about 9:00 AM on October 6, 1978 the Respondent Court, the Honorable Jess Whitehill presiding, dismissed the Petitioners’ said Motion in the absence of counsel for the Petitioners. (Counsel’s absence was due solely to an unanticipated and uncontrollable delay in air transport connections between San Francisco and Los Angeles.)

Upon his appearance before the Respondent Court, Petitioners’ counsel was informed by the Learned Judge that the said motion had been dismissed on two grounds, namely, (1) that the Petitioners had made no showing that Enola M. Nelson Realty was not a resident of Los Angeles County at the time the action was commenced, and (2) that James McElvane did not state that he was a resident of San Francisco at the time the complaint was filed.

Petitioners’ counsel made an oral motion to vacate the Respondent Court’s ruling on the ground that, by reason of the matters aforesaid, he had had no opportunity for oral argument in support of the said motion for change of venue. Counsel invited the Respondent Court’s attention to James McElvane’s said amended Declaration of Merits wherein McElvane stated that at the time the action was commenced he was not a resident of Los Angeles Country.

Petitioners’ Counsel further invited the Respondent Court’s attention to 5. 10162 of the California Business and Professions

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Code and contended that, pursuant to the provisions of that section, the situs of the Defendant party Enola M. Nelson Realty was, on the facts before the Respondent Court, not Los Angeles County, but Guyana.

The Respondent Court denied Petitioners’ Counsel’s motion to vacate its ruling, and augmented its reasons for so ruling as follows: (1) that James McElvane’s declaration that, inter alia, Enola M. Nelson resided in Guyana was inadmissible hearsay; and (2) that James McElvane was “involved” with Enola M. Nelson Realty at the time of the alleged conversion.

The proceedings were not reported.

ARGUMENT

THE PETITIONERS DISCHARGE THEIR BURDEN OF SHOWING THAT THE ACTION BROUGHT AGAINST THEM BY THE REAL PARTIES IN INTEREST WAS NOT PROPERLY TRIABLE IN LOS ANGELES COUNTY.

1. In the action brought against the Petitioners the Real Parties in Interest, joined as Defendants four (4) identified individuals (viz., James Warren Jones, Hugh Fortsyn, Enola M. Nelson, and James McElvane), one corporation (Peoples Temple) and one party alleged in paragraph V.C Of the Plaintiffs’ Points and Authorities in Opposition to Motion to Change of Venue to constitute an unincorporated association for purposes of determining venue.
2. The county in which the Defendants or some of them reside at the commencement of the action is the proper accounting for the trial date of the action: California Code of Civil Procedure, §395.

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Where a corporation is joined as defendant in an action, the county in which the corporation has its principal place of business it is also a proper county for the trial of the action: California Code of Civil Procedure, §395.5.

A similar rule applies to an unincorporated association, if it has filed a statement designating its principal office pursuant to Corporations Code § 24003: Ibid., § 395.2.

In relation to corporations and unincorporated associations the California Code of Civil Procedure, §395.5 further provides that an action may properly be tried in the county in which tort liability arises.

However, when a plaintiff brings an action against several defendants, both individual and corporate (or an unincorporated association), in a county which is neither the residence nor the principal place of business of any defender, an individual has a right upon proper showing to a change of venue to the county of his residence, even though venue as initially laid may otherwise be justifiable on the ground that liability in tort is alleged to have arisen there: Mosby v. Superior Court, 43 Cal. App. 3d 219, 117 Cal.Rptr. 588.

Consequently where Plaintiffs sue both individual defendants and a corporation and/or an unincorporated association, venue is restricted to (a) counties in which the individual defendants are resident, (b) counties in which the corporate defendant as its principal place of business, and (c) the county in which the unincorporated association has its principle [principal] place of business,

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provided such association comes within the terms of § 395.2 of the Code of Civil Procedure.

3. The First Cause of Action.

The first cause of action in the said complaint alleges liability for conversion against individual defendants, a corporation, and a party alleged to constitute an unincorporated association. By reason of the matters aforesaid, the action may properly be tried in Los Angeles County only if that County was, at the time the said action was commenced, the residence of at least one of the individual defendants or the principal place of business of the People’s Temple, or the principal place of business of Enola M. Nelson Realty, if, as a matter of law, Enola M. Nelson Realty constituted an unincorporated association for purposes of determining venue.

4. Residence of Individual Defendants at Commencement of Action.

None other for said individual defendants was, at the material time, a resident of Los Angeles County.

On September 18, 1978, Petitioner James McElvane declared under penalty of perjury and as a matter of his own knowledge that at the time the said action was commenced James Warren Jones, Enola M. Nelson and Hugh Fortsyn were not residents of Los Angeles County. McElvane’s Declaration was filed in the Respondent Court on September 26, 1978 and was before the Learned Judge at the hearing of the Petitioners’ motion for change of venue.

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The Respondent Court expressly omitted to take the said Declaration into account in deciding the Petitioners’ Motion on the erroneous ground that McElvane’s said declaration as to the residence of Jones, Nelson, and Fortsyn was inadmissible hearsay. The Learned Judge gave no reasons for excluding the said declaration as inadmissible hearsay.

By statute, an affidavit or declaration under penalty of perjury may be used upon a motion: CCP § 2009.

In respect to a motion for a change of venue,

“There is no statutory requirement of an affidavit of residence. [But] CCP 3966 provides that the court may order a change of venue if, ‘upon the hearing,’ it ‘appears’ that the action was brought in the wrong county. Perhaps the defendant may make his entire showing by oral testimony or exhibits. But the practice is to file an affidavit or affidavits showing that the moving defendant is a resident of the County to which transfer is sought, or is not a resident of the County in which the suit is brought.” Witkin, California Procedure, (2d Ed.) Vol. 2, § 539, p. 1359.

Accordingly, if the Respondent Court based its ruling that McElvane’s said declaration was inadmissible hearsay on the ground that residence or non-residents cannot properly be proved by affidavit (or declaration), then, for the foregoing reasons, the Respondent Court’s ruling was in error.

Further or alternatively, if the Respondent Court based its ruling on the ground that James McElvane declaration was inadmissible hearsay insofar as it related to defendants other than himself, then the Respondent Court was again in error.

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The Supreme Court of California has held that “one defendant in a personal action may make an affidavit as to the residence of all the defendants for their benefit on a motion for change of place of trial of the action; and such an affidavit is sufficient where it states that the residence of all the defendants was at the time of the commencement of the action and ever since has been the county to which it has sought to move the action, even though the affidavit does not contain the negative averment that the defendants do not reside in the county where the action was brought.” Stone v. Stone, 203 Cal. 197.

Moreover, “An affidavit showing that all defendants were residents of a particular county his prima facie proof of that fact in the absence of any denial or contrary proof.” Fielder v. Superior Court of Shasta County, 213 Cal. App.2d 60.

The Real Parties in Interest have not had any time denied that Petitioners James Warren Jones, Hugh Fortsyn, and Enola M. Nelson were not residents of Los Angeles County at the time this action was commenced.

The Petitioners concede that the Real Parties in Interest, in Paragraph VI of their “Points and Authorities in Opposition to Motion for Change of Venue,” deny that Petitioner James McElvane was not resident of Los Angeles County at the material time, notwithstanding his said declaration to the contrary; but, to the Petitioners’ knowledge and belief, the Real Parties in Interest have made no more than a bare denial, and at no time did they adduce before the Respondent Court any evidence to substantiate

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their bare assertion that at the material time James McElvane was, in fact, a resident of Los Angeles County. No counter-affidavits were filed by the Real Parties in Interest; nor, despite their assertion that “at the hearing herein [they] will present proof” that McElvane was a resident of Los Angeles County, and the Real Parties in Interest present such proof. Alternatively, if such proof was presented to the Respondent Court at the hearing of the Petitioners’ motion, the record of the Respondent Court, as known to the Petitioners, is silent about it, and it was, in any event, presented in the absence of the Petitioners’ counsel. Accordingly, the Petitioners were denied it any opportunity to deal with such alleged proof.

By reason of the matters and authorities aforesaid, the Petitioners respectfully submit that the burden of showing non-residence in Los Angeles County of each of the aforesaid individual Defendants to this action was duly and sufficiently discharged at the time the Petitioners’ motion for change of venue was heard by the Respondent Court, and that the Respondent Court therefore erred in its ruling as to the residence(s) of Petitioners Jones, Fortsyn, Nelson and McElvane at the commencement of this action.

In the Petitioners’ respectful submission, the Respondent Court Motion if, insofar as it denied the Petitioners’ Motion for Change of Venue on the ground of residence in Los Angeles County of any of the said individual Defendants.

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5. Principal Place of Business of Peoples Temple at Commencement of Action

If, at the commencement of the said action, the principal place of business of the People’s Temple (a non-profit corporation) had been Los Angeles County, then pursuant to 5.395.5 of the California Code of Civil Procedure, that county would be a proper place for the trial of the action.

At all material times, however, the principal place of business of the People’s Temple was San Francisco County. Proof of this fact was filed by the Petitioners in the Respondent Court on September 1, 1978 in the form of a Declaration under Penalty of Perjury executed on August 28, 1978 by June Crym, Treasurer of the People’s Temple.

To the Petitioners’ knowledge and belief, the Real Parties in Interest did not dispute the stock at the hearing of the said motion. The Dismissal of the Petitioners’ motion appears not to have been based upon the principal of business of the People’s Temple.

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6. The Status for Venue Purposes of Enola M. Nelson Realty.

(a) If, at the material time, Enola M. Nelson Realty had been a corporation with its principal place of business in Los Angeles County, then Los Angeles County would be a proper place for the trial of this action: California Code of Civil Procedure, Sec. 395.5.

Enola M. Nelson Realty was not, however, a corporation at the time of commencement of this action or at any time. The Real Parties in Interest have not disputed that fact. Accordingly venue and Los Angeles County cannot validly be based on Sec. 395.5 of the said Code.

(b) If, at the time of the commencement of this action, Enola M. Nelson Realty had been an unincorporated association which had “filed a statement with the Secretary of State pursuant to Section 24003 of the Corporations Code listing its principal office in this state,” in the county in which Enola M. Nelson Realty having its principal office would be a proper place for trial of the action: California Code of Civil Procedure, Sec. 395.2.

For purposes of this Petition, the Petitioners concede that the principal office of Enola M. Nelson Realty was situated in Los Angeles County. Nevertheless:

“Section 395.2 does not apply unless the association … has filed a statement designating its principal office in this State (in accordance with the) procedure for filing such a statement (as) prescribed by Corporations Code, Sec. 24003.” 14 West’s Annotated California Codes, Code of Civil Procedure Sec. 395.2, p.  329.

 

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In the absence of such a statement an unincorporated association is not recognized as a jural entity for purposes of determining venue and may therefore be sued only in those counties when the plaintiff consider the individual members of the association: Juneau Spruce Corp. v. Int’l Longshoremen’s Union, 37 Cal.2d 760, 235 P.2d 607 (1951).

Therefore, even if contrary to the Petitioners’ contention, Enola M. Nelson Realty were an unincorporated association between Petitioners and McElvane within the meaning of Sec. 395.2 of the Code of Civil Procedure, by reason of the matters set out in this paragraph and in paragraph 4 hereinabove (relating to the residences of Enola M. Nelson and James McElvane), Enola M. Nelson Realty could not properly be sued in Los Angeles County, since no evidence has ever been produced, nor any suggestion ever made, by the Real Parties in Interest that a statement designating principal office in California was filed on behalf or in respect of Enola M. Nelson Realty prior to the commencement of this action.

Accordingly, even if, contrary to the Petitioners’ contention, Enola M. Nelson Realty were an unincorporated association within the meaning of 395.2, venue in Los Angeles County would be improper.

(c) Further or in the alternative, “Enola M. Nelson Realty” is not an association at all, but merely a trade name under which Petitioner Enola M. Nelson conducts the real estate

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brokerage business of which she is the sole proprietor and in which she is the sole participant.

Paragraph 4 of the complaint of the Real Parties in Interest letters no more than that Petitioner McElvane was not the material time a licensed real estate salesman doing business for, inter alia, Enola M. Nelson Realty. In Paragraph V of their Memorandum of Points and Authorities in Opposition to Motion for Change of Venue the Real Parties in Interest contend that their allegations in said paragraph 4 are sufficient to establish that Enola M. Nelson Realty “is an organization of two or more persons (i.e. Enola M. Nelson and James McElvane) and an association within the meaning of Section 395.5 of the Code of Civil Procedure.”

In the Petitioners’ respectful submission, the said allegations are insufficient for such purposes. Even if, which has not been admitted by the Petitioners, James McElvane was “doing business as a salesman for … Enola M. Nelson Realty” at the material time, that fact would not bring Enola M. Nelson Realty within the ambit of the terms “unincorporated association” or “organization” as those terms have been construed by the Appellate Courts of this state.

The Supreme Court of California has held that the usual meaning of the term “association” is

“an unincorporated organization, composed of a body of men partaking in its general form and mode of procedure of the characteristics of a corporation.” In re Irwin’s Estate, 327 P. 1074, 196 C. 366.

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The Court of Appeal subsequently applied the abovesaid definition and noted that the term “association” ” is often used as synonymous with ‘company’ or ‘society.'” Law v. Crist, 107 P. 2d 953, 41 C.A.2d862.

The Petitioners submit that, even assuming the allegations made in said paragraph 4 of the said complaint to be true, the Respondent Court could not reasonably have concluded as a matter of legal construction that Enola M. Nelson Realty was an unincorporated association at the material time.

The Respondent Court plus, however, assumed or concluded that Enola M. Nelson Realty was an unincorporated association (or a corporation) in order to have dismissed the Petitioners’ motion on the ground, inter alia, that the defendants made no showing that Enola M. Nelson Realty was not a resident of Los Angeles County at the time the action was commenced.

By reason of the matters aforesaid, the Respondent Court erred in its ruling that venue in Los Angeles County was proper by virtue of the location in Los Angeles of Enola M. Nelson Realty’s brokerage office.

7. The Petitioners respectfully submit that with regard to the first cause of action the Respondent Court could not reasonably have found any ground for deciding that Los Angeles County was a proper place of trial since:

(a) The Petitioners adduced sufficient admissible evidence which established that none of the four named individual

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Defendants was a resident of Los Angeles County at the material time;

(b) The Real Parties in Interest do not dispute the fact that at the material time the principal place of business of the People’s Temple was San Francisco County; and

(c) Enola M. Nelson Realty was either not an unincorporated association at all, or, if it was an unincorporated association, it was not at the material time a jural entity for purposes of determining venue within the ambit of Sec. 395.2 of the Code of Civil Procedure.

In the premises, the Respondent Court erred in its ruling on the Petitioner’s motion.

8. The Second and Third Causes of Action.

The second and third causes of action in the said complaint alleged liability for intentional infliction of emotional distress and mental suffering against the People’s Temple and Petitioners Jones, McElvane and Fortsyn.

Petitioner Enola M. Nelson and Enola M. Nelson Realty are expressly excluded as the defendant parties to the second and third causes of action. No allegations are made against Petitioner Fortsyn in respect of the third cause of action.

9. Venue with Respect to the Second and Third Causes of Action.

Pursuant to Sections 395 and 395.5 of the Code of Civil Procedure, the said second cause of action can properly be tried in Los Angeles County only if at least one of the Petitioners

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Jones, Fortsyn and McElvane was resident there when the action was commenced, or if the principal place of business of the People’s Temple was in Los Angeles County at that time.

The said third cause of action can properly be tried in Los Angeles County only if, at the material time, either Petitioner Jones or McElvane resided there, or the People’s Temple had its principal place of business in that county.

(a) The Petitioners repeat the matters and authorities set out in paragraph 4 hereinabove.

By reason of those matters and authorities, the Petitioners submit that they duly and sufficiently discharged their burden of establishing that at the time the said action was commenced neither James Warren Jones, nor Hugh Fortsyn, nor James McElvane was a resident of Los Angeles County. The Respondent Court therefore erred in ruling that the residence(s) of the said Petitioners were not shown to have been other than Los Angeles County at that time and for that reason the Petitioners’ motion for change of venue with regard to the second and third causes of action must be denied.

(b) The Petitioners repeat the matters set out in paragraph 5 hereinabove. The Petitioners properly and sufficiently established at the hearing in the Respondent Court that the principal place of business of the People’s Temple was San Francisco County at all material times.

In the premises, neither the second nor the third causes of action can probably be tried in Los Angeles County. The

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Petitioners are therefore entitled to a change of venue in respect of those causes of action.

10. Joinder of Transitory Actions.

The instant action by the Real Parties in Interest against the Petitioners is one in which three (3) transitory counts or claims for transitory relief are joined. If, in such cases, defendants are entitled to a change of venue to a residence county in respect to any one count or cause of action, then a motion to change venue as to the entire action will lie even though the defendants may not be entitled to such change in respect of other counts:

“When several causes of action are alleged in a complaint, a motion for change of venue must be granted in all cases if defendant is entitled to a change on any one.” Quick v. Corsaro, 180 CA2d 831, 835; Johnson v. Superior Court, 232 CA2d 212, 217.

“… If in (an action joining several transitory counts) the non-residence county in which the action was commenced is improper venue with respect to one of accounts, even though good as to the rest, the entire action will be transferred on motion to the county of a defendant’s residence…” Chadbourn, Grassman, & Van Alstyne, 1 California Pleading, S. 386, p. 349, citing Pacific Bal. Industries v. Northern Timber, 118 CA2d 815, 259 P2d 465; Crofts and Anderson v. Johnson, 101 CA2d 418, 225 P.2d 594; Goosen v. Clifton, 75 CA2d 44, 170 P.2d 104.

11. Since the Petitioners were entitled, by reason of the matters set out in paragraph 9 hereinabove, to a change of venue with respect to the second and third causes of action in the said complaint, they were equally entitled to a change of

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venue with respect to the entire action against them. The Petitioners respectfully submit this is so entirely apart from the matters set out in paragraphs 3 through 7, inclusive hereinabove.

For these reasons, in addition to those set out in paragraphs 3 through 7 hereinabove, the Respondent Court’s denial of the Petitioners’ motion for a change of venue was in error.

CONCLUSION

For the foregoing reasons, the Petitioners respectfully urge this Honorable Court to grant a writ of mandate requiring the Respondent Court to order that the trial of the instant action we transferred from Los Angeles County to San Francisco County.

DATED: October 27, 1978

Respectfully submitted,

GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
by /s/ CHARLES R. GARRY
CHARLES R. GARRY
Attorney for Petitioners

NEIL ROSENBAUM
Barrister of Gray’s Inn
Attorney of New York and Pennsylvania Bars

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PROOF OF SERVICE BY MAIL – 1013 (a), 2015.5 CCP

I am a citizen of the United States; my business address is 1256 Market Street at Civic Center, San Francisco 94102. I am employed in the City and County of San Francisco, where this mailing occurs; I am over the age of 18 years and not a party to the within cause. I served the within

Petition for Writ of Mandate in Memorandum of Points and Authorities

on the following person(s) on the date set forth below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mailbox at San Francisco, California, addressed as follows:

Timothy Oliver Stoen
120 Montgomery Street
Suite 1700
San Francisco, CA 94104

Clerk of the Superior Court of Los Angeles County
PO Box 151
Los Angeles, CA 90053

I certify or declare under penalty of perjury that the foregoing is true and correct. Executed on October 27, 1978 at San Francisco, California.

[Blank signature line]

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Charles R. Garry
Garry, Dreyfus, McTernan, Brotsky, Herndon, & Pesonen, Inc.
1256 Market Street at Civic Center
San Francisco, California 94102
Tel: 864-3131
Attorneys for Defendants
People’s Temple of the Disciples of Christ, a nonprofit corporation, and James McElvane

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES

WADE B. MEDLOCK and MABEL M. MEDLOCK, husband and wife ,
Plaintiffs

vs.
JAMES WARREN JONES, also known as Jim Jones; PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST, a non-profit corporation; ENOLA M. NELSON; ENOLA M. NELSON REALTY; HUGH FORTSYN; JAMES MCELVANE, and FIRST DOE through FIFTIETH DOE, inclusive,
Defendants.

No. 24-3292
NOTICE OF MOTION FOR CHANGE OF VENUE [CCP § 397 (1)]
Dept: Law and Motion
Time: 9:00 AM
Date: October 6, 1978

TO EACH PARTY AND TO THE ATTORNEY OF RECORD FOR EACH PARTY:

YOU AND EACH OF YOU WILL PLEASE TAKE NOTICE THAT on October 6, 1978, at the hour of 9:00 AM, or as soon thereafter as the matter may be heard, in the Law and Motion Department of the above-entitled Court, at 111 N. Hill St., Los Angeles, California, defendant James McElvane will move for an order changing the place of trial of this action to the Superior Court

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of the State of California in and for the City and County of San Francisco.

Said motion will be based on this notice of motion, the attached declarations under penalty of perjury of June Crym and James McElvane, the attached memorandum of points and authorities, such supplemental affidavits, declarations and memoranda of Points and Authorities as may be filed subsequently herein, and such oral and documentary evidence as may be presented at the hearing of this motion.

Dated: August 20, 1978

GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
by /s/ CHARLES R. GARRY
CHARLES R. GARRY
Attorney for Defendants

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Charles R. Garry
Garry, Dreyfus, McTernan, Brotsky, Herndon, & Pesonen, Inc.
1256 Market Street at Civic Center
San Francisco, California 94102
Tel: 864-3131
Attorneys for Defendants
People’s Temple of the Disciples of Christ, a nonprofit corporation, and James McElvane

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES

WADE B. MEDLOCK and MABEL M. MEDLOCK, husband and wife ,
Plainitffs

vs.

JAMES WARREN JONES, also known as Jim Jones; PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST, a non-profit corporation; ENOLA M. NELSON; ENOLA M. NELSON REALTY; HUGH FORTSYN; JAMES McELVANE, and FIRST DOE through FIFTIETH DOE, inclusive,
Defendants.

No. 24-3292
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CHANGE OF VENUE
Department: Law & Motion
Time: 9:00 AM
Date: October 6, 1978

I. WHEN A PLAINTIFF BRINGS A TORT ACTION AGAINST SEVERAL DEFENDANTS, BOTH INDIVIDUAL AND CORPORATE, IN A COUNTY WHICH IS NEITHER THE RESIDENCE NOR THE PRINCIPAL PLACE OF BUSINESS OF ANY DEFENDANT, NOR A COUNTY IN WHICH INJURY TO PERSON OR PROPERTY OCCURRED, AN INDIVIDUAL DEFENDANT HAS A RIGHT TO A CHANGE OF VENUE, EVEN THOUGH VENUE AS INITIALLY LEG MAY OTHERWISE BE JUSTIFIABLE IN AN ACTION AGAINST THE CORPORATION.

Griffin & Skelley Co. v. Magnolia & Healdsburg Food Cannery Co., 107 Cal. 378 (1895)

Carruth v. Superior Court, 80 CA3d 215, 220 (1978)

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Mosby v. Superior Court, 43 CA 3d 219, 226 (1974)

CCP § 395.

II. UNDER THE CIRCUMSTANCES OUTLINED IN SECTION I ABOVE, AN INDIVIDUAL DEFENDANT IS ENTITLED TO A CHANGE OF VENUE THE PRINCIPAL PLACE OF BUSINESS OF THE CORPORATE DEFENDANT.

United Pac. Ins. Co. v. Superior Court, 254 CA 2d 897, 899 (1967)

Walker v. Wells Fargo Bank & Union Trust Co., 24 CA 2d 220, 222-223 (1937)

CCP § 395.

III. DEFENDANT MCELVANE IS ENTITLED TO A CHANGE OF VENUE TO THE CITY AND COUNTY OF SAN FRANCISCO BECAUSE NONE OF THE DEFENDANTS ARE RESIDENTS OF LOS ANGELES AND NO INDIVIDUAL PERSON OR PERSONAL PROPERTY WITHIN THE MEANING OF CCP § 395 OCCURRED WITHIN THE COUNTY, AND BECAUSE SAN FRANCISCO IS THE PRINCIPAL PLACE OF BUSINESS OF PEOPLE’S TEMPLE OF THE DISCIPLES OF CHRIST AND THE COUNTY OF RESIDENCE OF MCELVANE.

The complaint in the above-entitled action contains one cause of action for conversion and to for infliction of emotional distress. None of these causes of action are for injury two person or personal property within the meaning of CCP § 395.

The words “injury to person or property” as used in CCP § 395 our limited to physical or corporeal injury. California courts have frequently held that conversion it is not the sort of injury encompassed by that phrase.

Spangenberg v. Spangenberg, 123 CA  387, 391 (1932)

Haurat v. Superior Court, 241 CA 2d 330 (1966)

Thus, the first cause of action is not one for injury to person or personal property within the meaning of CCP § 395.

Similarly, the courts have held that a cause of action for infliction of emotional distress it is not a cause of action for

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injury to person. This is true even where the complaint alleges some physical injury.

Lucas v. Lucas Ranching Co.,  18 CA 2d 453 (1937)

The Court explained the rationale for this rule as follows:

…the inspiration for the language we are considering was the ‘situation brought about by the increasing use of motor vehicles.’ In motor vehicle accidents, as in other cases where physical injury is directly caused by what has happened, the injury occurs at the place where the happening occurs, and there is logic in having that place a proper one for the trial. In an action such as plaintiff’s, however, the place where the injury occurs is not the locale of the events which, ultimately, cause the injury. She is injured not at the site of the events, but, brooding over the wrongs done her, at the place or places where worry and loss of sleep finally take their toll. No reason appears why an injury which has no definite situs should be given potency in determining the place of trial.

Id. at 456, quoted in Carruth, supra, at 219-220. Thus, plaintiffs’ allegations of emotional and physical distress and injury in mind and body as result of defendants’ actions are insufficient to bring the second and third causes of action within the “injury to person or personal property” requirement of CCP § 395.

Since none of the causes of action are for injury two person or personal property, the action must be tried in the county of residence or principal place of business of one of the defendants.

Griffin & Skelley Co., supra.; CCP § 395.

But none of the defendants resides in the County of Los Angeles. See Declarations of Crym and McElvane. Therefore, defendant McElvane’s motion for change of venue to San Francisco, his residence at the principal place of business of defendant People’s Temple, must be granted.

In this case none of the causes of action is triable in Los Angeles County. But it should be noted that defendant’s motion would have to be granted even if he was entitled to a change of venue for only one of these causes.

Johnson v. Superior Court, 232 CA 2d 212 (1965)

Sanborn v. Pomona Pump Co., 131 CA 241 (1933).

CONCLUSION

For all of the reasons stated above, defendant’s motion for change of venue must be granted.

Dated: August 28, 1978

Respectfully submitted,
GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
by /s/ CHARLES R. GARRY
CHARLES R. GARRY
Attorney for Defendants