Judge: Anne Richardson, Case: 23STCV26388, Date: 2024-04-30 Tentative Ruling

Case Number: 23STCV26388    Hearing Date: April 30, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff J.P. (Joseph Parker) sues Defendants Eastern Revenue, Inc. (Eastern Revenue), Emmanuel University, Inc., Kyle Shanahan (Eastern Revenue’s President), Matt McRee, Joann S. Harper, and Does 1-30 pursuant to an unsigned October 30, 2023, Complaint alleging claims sounding in fraud, unfair business practices, and breach of contract.

Regarding the unsigned complaint: Every pleading, petition, written notice of motion, or other similar paper must be signed by at least one attorney of record or by the party if not represented by an attorney. (Code Civ. Proc., § 128.7, subd. (a).) An unsigned paper will be struck unless the attorney or party corrects the omission promptly after being notified of it. (Code Civ. Proc., § 128.7, subd. (a); see Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [unsigned pleading can be struck pursuant to Code Civ. Proc., § 436, subd. (b), i.e., a pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court]).

The claims arise from the following allegations. Plaintiff currently resides in California. In what appears to be 2023—during which time Plaintiff was living in Los Angeles County while simultaneously being “deployed” for active-duty military service—Eastern Revenue, a debt collection agency, violated federal and California law when it attempted through its agents to collect a debt owed by Plaintiff to Emmanuel University, an active-duty serviceman. Plaintiff was induced into making $2,000 in payments before becoming aware of federal and state laws protecting Plaintiff from debt collection efforts during active military service.

After becoming aware of his rights, Plaintiff hired counsel to seek validation of the alleged debt from Plaintiff to Emmanuel University, including production of the agreement entitling Eastern Revenue to act as a debt collection agency for Emmanuel University. However, neither Eastern Revenue nor Emmanuel University produced documents in response to Plaintiff’s requests. Eastern Revenue then retaliated against Plaintiff by refusing to take further payments from Plaintiff, with Plaintiff attempting to make payments on Eastern Revenue’s website from California only for the system to reject Plaintiff’s payments. Later, Plaintiff’s counsel learned that Defendants had in fact destroyed the agreement between Eastern Revenue and Emmanuel University, thus violating a notice served on these Defendants relating to the preservation of evidence and a litigation hold.

The Court briefly notes that while the face of the Complaint does not specifically identify Plaintiff’s counsel now before the Court—Shiloh A. Parker, Esq., Plaintiff’s spouse—as counsel referred to in the pleadings, attachments to the Complaint show that Eastern Revenue and Shanahan have served documents on “Shiloh Angel Bentacourt” as counsel for Plaintiff. Bentacourt thus appears to be an alternative surname for Shiloh A. Parker, Esq.

B. Motion Before the Court

On March 22, 2024, Defendants Eastern Revenue and Shanahan filed a motion to dismiss or stay this action based on forum non conveniens.

On March 25, 2024, Plaintiff filed an opposition to Eastern Revenue and Shanahan’s motion.

On April 23, 2024, Eastern Revenue and Shanahan filed a reply to Plaintiff’s opposition.

Defendants Eastern Revenue and Shanahan’s motion is now before the Court.

II. Admonishments and Request for State Bar Referrals/Questions

The Court notes that the parties’ papers show some defects for which the Court must pause to issue admonishments.

A. Defendants Eastern Revenue and Shanahan and Defense Counsel

Defendants Eastern Revenue and Shanahan request judicial notice of a complaint filed in the United States District Court for the Central District of California (Central District) by Plaintiff J.P. and his counsel (also his spouse), Shiloh A. Parker, Esq. However, while that pleading implies that J.P. did at some point live or intend to live in Georgia, it does not stand for the proposition advanced by Eastern Revenue and Shanahan that he lives there now.

(For ease of reference, the Court refers to Plaintiff and Shiloh A. Parker, Esq. as ‘J.P. and Shiloh.’ No disrespect is intended.)

The purpose of these Defendants’ request for judicial notice is to show that J.P and Shiloh, his spouse, filed pleadings with the Central District that allege that Plaintiff and counsel live in Georgia.

However, this allegation does not appear on the face of the Central District complaint. (See Mot., RJN, Ex. A.) Rather, Georgia is only mentioned in the Central District complaint in two contexts, neither of which allege that Plaintiff or counsel live in Georgia.

The first context in which Georgia arises in those pleadings is in relation to the defendants in that action or their conduct. (See, e.g., Mot., RJN, Ex. A, ¶¶ 1, 3.)

The second context in which Georgia arises in those pleadings is in relation to J.P. serving in the National Guard of the State of Georgia and Plaintiff and counsel entering a contract to rent a property in Georgia from the defendants, with the defendants defrauding Plaintiff and counsel by failing to include agreed-upon terms in the rental agreement relating to when keys would be turned over and altogether failing to turn over the property. (See, e.g., Mot., RJN, Ex. A, ¶¶ 4 [member of the National Guard of the State of Georgia], 6, 8 [intent to move to Georgia], 13 [inability to travel to Georgia from Arizona during contract negotiations to observe the rental property].) The Central District pleadings are vague as to where J.P resides, other than noting that Plaintiff is a member of the National Guard of the State of Georgia. (See, e.g., Mot., RJN, Ex. A, ¶ 4.) However, while the pleadings do not specifically allege J.P or Shiloh live in Georgia, they imply that J.P had in the past or will in the future (alleging that he “is a member of the National Guard of the State of Georgia” and that the couple met in Arizona and intended to move to Georgia so J.P could continue to serve) and that Shiloh does not reside there (as she was unable to travel to Georgia from Arizona). (See, e.g., Mot., RJN, Ex. A, ¶¶ 4, 6, [J.P. a member of the National Guard of the State of Georgia and they met and married in Arizona with an intent to move to Arizona], ¶ 13 [Shiloh could not travel to Georgia from Arizona to see the property being rented], ¶ 17 [defendants demanded payment via Zelle], ¶ 29 [defendants attempted to fraudulently induce payment through Zelle across state lines].)

Thus, as stated above, the request for judicial notice involves pleadings that may imply but do not support the proposition advanced by Defendants Eastern Revenue and Shanahan, for which Defendants are admonished.

It therefore follows that the request for judicial notice is not relevant to this action insofar as it contains no proof that J.P now lives in Georgia or lived in Georgia during the relevant time period. (See Mark Tanner Constr., Inc. v. HUB Int’l Ins. Servs. (2014) 224 Cal.App.4th 574, 586 [pleadings of opposing party constitute judicial admissions].)

B. J.P. and Shiloh A. Parker, Esq.

In turn, J.P. and Shiloh are admonished for filing an unsigned complaint (see above) as well as points and authorities that refer to a declaration that lacks foundation and for propositions that are not supported by Plaintiff’s and counsel’s declarations.

Moving to foundation and personal knowledge, any person is “competent” or qualified to make a declaration or affidavit if she has personal knowledge of or is qualified as an expert to give testimony on the matters set forth in the declaration or affidavit. (Evid. Code., §§ 702, 720; see Flood, supra, 45 Cal.App.3d at p. 649 [“Any person is qualified to make an affidavit in support of a motion, and his declaration is competent evidence unless an objection is raised on the basis that the affiant had no personal knowledge of the matters set forth in the affidavit”]; see, e.g., LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 947 [declarant’s statements about internal company activities that took place two decades before her employment could not have been based on her personal knowledge]; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 719-720 [facts stated in declaration did not show declarant was competent to testify]; see also Cowles Mags. & Broad., Inc. v. Elysium, Inc. (1967) 255 Cal.App.2d 731, 734 [statements in declarations or affidavits are disregarded if they cannot withstand the tests to which oral testimony is subjected].)

Statements in declarations and affidavits are presumed to be made on personal knowledge unless the statements could not have been made on personal knowledge or the declaration or affidavit states that it is based on something other than personal knowledge, such as information and belief. (Weathers v. Kaiser Found. Hosps. (1971) 5 Cal.3d 98, 106.)

In certain circumstances, declarations may require evidentiary support. (See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 796-797 [representations in declaration re: minimal contacts for jurisdiction lacked foundation and amounted to nothing more than inadmissible hearsay where no evidentiary support for minimal contacts was filed in the trial court or on appeal].)

Here, throughout the points and authorities, Plaintiff contends that not only has he not lived in Georgia since about September, 2021 (Opp’n, 5:6 [the Court notes that the pages of the memorandum are not numbered in violation of Cal. Rules of Court, rule 3.1113 subd. (h); cites given here are to the page of the PDF]), he currently resides in California and resided in California at the time that Eastern Revenue attempted to collect outstanding debt from him. (See, e.g., Opp’n, 10:1-3 under “Correct Statement.”)

However, two issues arise from these contentions.

First, neither J.P’s declaration nor Shiloh’s declaration explicitly state that Plaintiff currently resides in California. J.P’s declaration altogether avoids the question, at most stating that he has not lived in Georgia since 2021 but failing to mention California altogether. (Opp’n, J.P. Decl., ¶¶ 1-3.) Shiloh’s declaration, without citing any exhibit to that declaration, at most represents that J.P made multiple attempts to pay Eastern Revenue from California and that J.P. lived in California when the calls with Eastern Revenue took place. (Opp’n, Shiloh Decl., ¶¶ 7-8.)

Second, however, Shiloh’s declaration lacks foundation based on lack of personal knowledge. The points and authorities cite Shiloh’s declaration, not Plaintiff’s declaration. (See, e.g., Opp’n, Shiloh Decl., ¶¶ 7 [“Plaintiff made multiple attempts to make payments,” “[t]o Plaintiff’s dismay,” and “Plaintiff received multiple emails”], 8 [“[O]n multiple occasions, Plaintiff had phone calls with Eastern … while living in California”]; see also, e.g., Opp’n, 10:1-3 at Correct Statement [citing counsel’s declaration for residence and collection-efforts-while-in-California purposes, not Plaintiff’s declaration].) And while counsel’s declaration conclusorily states that she has personal knowledge of the declaration’s contents (Opp’n, Shiloh Decl., ¶ 1), counsel’s declaration does not elaborate on the factual or evidentiary bases for personal knowledge of actions taken or experienced by Plaintiff. For example, counsel’s declaration does not indicate that she overheard Plaintiff’s phone calls with Eastern Revenue at their mutual residence, as applicable. Moreover, while Plaintiff’s own declaration states that he did not move to Georgia because he and counsel were defrauded in relation to that transaction, Plaintiff’s declaration fails to indicate whether he currently lives in California, Arizona, or some other location, fails to detail his interactions with Eastern Revenue, and fails to indicate that those interactions took place while he was living in California. (Opp’n, J.P. Decl., ¶¶ 1-3.)

Based on the above two paragraphs, the Court determines that Shiloh’s declaration lacks foundation as to the basis for her representations of Plaintiff’s current residence and interactions with Eastern Revenue while purportedly in California, thus failing to meet the threshold for personal knowledge. (People v. Johnson (2018) 6 Cal.5th 541, 583 [court may find personal knowledge subject to low bar of whether a reasonable jury could find statements at issue are based on personal knowledge].) While this could be a minor point in a case in which the facts were not so hotly disputed, the evasive nature of the evidence before this Court as to where J.P. in fact does live, and for what time period, renders the evidence insufficient to support the Opposition’s contentions.

Plaintiff and his counsel, Shiloh A. Parker, Esq., are admonished for filing points and authorities that refer to evidence that does not stand for the proposition cited and for filing declarations that do not show sufficient personal knowledge for declaration and affidavit purposes, as well as filing an unsigned complaint.

In summary, the Court determines that motion fails to support its contention that J.P. did not live outside of California, nor does the opposition properly support its contention that J.P. does, or did, reside in California.

C. State Bar Referrals and Other Notes

The Court last notes that the circumstances surrounding Plaintiff’s allegations of unlawful practice of law in California by Eastern Revenue and Shanahan’s counsel—specifically, Graeme E. Hogan, Monica M. Littman, and Richard J. Perr—are unclear. The opposition limits its attachments to printouts of California and Georgia State Bar search results for Graeme E. Hogan, which yielded no results, but did not involve searches related to Monica M. Littman and Richard J. Perr. (Opp’n, Shiloh Decl., Ex. B, cited in Opp’n, p. 6.) At most, such evidence raises questions as to the propriety of a meet and confer effort by Graeme E. Hogan in a California state court action that Eastern Revenue and Shanahan seek to have dismissed in favor of a lawsuit in a Georgia court. However, this argument is not greatly elaborated in the opposition points and authorities, which is a mirror image of counsel’s declaration. (Compare Opp’n, p. 6, with Opp’n, Shiloh Decl., ¶¶ 3, 10.) There is no dispute that the Defendants are represented in this court by a California attorney, Marcus Dong. The Court therefore makes no further comment on this issue.

The Court declines to issue any State Bar of California referrals against Eastern Revenue and Shanahan’s counsel for mischaracterizing the nature of the pleadings in the Central District action or any other conduct. (Opp’n, pp. 5-6.) Neither will the Court take any formal action against Shiloh, despite the insufficiencies noted above.

Here, as discussed above, both sets of parties filed papers marked by deficiencies. However, as this is the first motion before this Court, the Court will not leap to any conclusions as to bad faith or intentional conduct. The Court reserves the right to use the instances mentioned here to support a finding of a pattern in the future, should additional instances occur.

To the extent this motion is denied, the Court admonishes the parties and counsel to act with civility, properly support their legal arguments, and not advance authorities or evidence that do not stand for the cited proposition. The Court reminds both parties’ counsel of their ethical obligations to this Court and the State Bar of California.

III. Requests for Judicial Notice

The Court denies Defendants Eastern Revenue and Shanahan’s request for judicial notice. As discussed by the Court above in Section II, the pleadings for which these Defendants seek judicial notice are not relevant to this proceeding because those pleadings do not stand for the proposition advanced. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2 [“There is … a precondition to the taking of judicial notice in either its mandatory or permissive form[:] any matter to be judicially noticed must be relevant to a material issue”].)

IV. Evidentiary Objections

Opposition Evidentiary Objection Nos. 1-6: OVERRULED [not hearsay based on personal knowledge and business records exception; best evidence rule is not determinative because declaration with personal knowledge sufficient; not vague or ambiguous or sufficiently incomplete].

V. Motion to Dismiss or Stay, Forum Non Conveniens: DENIED without prejudice.

A. Legal Standard

“Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)

A general appearance does not waive the standing to file a forum non conveniens motion. Rather, the rule is that a defendant that has not appeared may file a forum non conveniens motion pursuant to Code of Civil Procedure section 418.10, while a defendant that has generally appeared may file a forum non conveniens motion pursuant to Code of Civil Procedure section 410.30. (Britton v. Dallas Airmotive, Inc. (2007) 153 Cal.App.4th 127, 133-135 (Britton); compare Code Civ. Proc., § 418.10, subd. (b) [A defendant may move to stay or dismiss an action on grounds of inconvenient forum], with Code Civ. Proc., § 410.30, subd. (a)(2) [“The provisions of Section 418.10 do not apply to a motion to stay or dismiss the action by a defendant who has made a general appearance”]; see, e.g., Animal Film, LLC v. D.E.J. Prods., Inc. (2011) 193 Cal.App.4th 466, 471 [discussing forum non conveniens as codified in Code Civ. Proc., § 410.30].)

Code of Civil Procedure section 410.30, subdivision (a) provides that “[w]hen a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.”

“In applying the traditional forum non conveniens analysis, the trial court must engage in a two-step process, on which the defendant bears the burden of proof. [Citation.] In the first step, the court must determine whether a suitable alternative forum exists. [Citation.] If the court finds that a suitable alternative forum exists, it must then balance the private interests of the litigants and the interests of the public in retaining the action in California. [Citation.]” (Animal Film, supra, 193 Cal.App.4th at p. 472; see National Football League v. Fireman’s Fund Ins. Co. (2013) 216 Cal.App.4th 902, 926 (National Football League) [The party seeking a dismissal due to an inconvenient forum bears the burden of proof].)

An action brought by a California resident specifically may not be dismissed on grounds of forum non conveniens except in extraordinary circumstances. (Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 411 (Century Indemnity).) In those circumstances, the trial court has more discretion to grant a stay on a forum non conveniens motion because California would retain jurisdiction. (Id. at p. 412.)

Courts disagree on what level of deference should be attributed to the plaintiff’s choice of forum where the plaintiff is a resident of another state. Most courts have held that when a plaintiff is from another state, the plaintiff’s choice of forum should be given substantial deference as with a California resident and should not be disturbed unless the balance of private and public factors strongly favors the defendant. (See, e.g., Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1465 & fn. 6 (Morris); Ford Motor Co. v. Insurance Co. of N. Am. (1995) 35 Cal.App.4th 604, 610-611; cf. Lueck v. Sundstrand Corp. (9th Cir. 2001) 236 F.3d 1137, 1143 [in interpreting forum non conveniens under federal common law, determining that when the plaintiff is a U.S. citizen, the defendant must satisfy heavy burden of proof].) One court, however, has held that when a plaintiff is from another state, the plaintiff’s choice of forum should be given due deference but not a strong presumption. (National Football League, supra, 216 Cal.App.4th at p. 929.)

If the plaintiff is a resident of a foreign country, the plaintiff’s choice of forum is given less deference. (Stangvik, supra, 54 Cal.3d at p. 755 & fn. 7; Fox Factory, Inc. v. Superior Court (2017) 11 Cal.App.5th 197, 205-206; Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1543; cf. Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 256 [interpreting FNC under federal common law].)

The decision to grant a forum non conveniens motion is discretionary and is accorded substantial deference on appeal. (Century Indemnity, supra, 58 Cal.App.4th at p. 411.)

B. Analysis

1. Preliminary Discussion

a. Deference to Plaintiff’s Choice of Forum

Here, the Court adopts its discussion in Section II.B. above to determine that insufficient evidence is before the Court to determine that Plaintiff is currently a California resident—or even a California resident at the time this action was filed.

However, even if Plaintiff is not a California resident, and even if, arguendo, Plaintiff was not a California resident at the time this action was filed, the Court adopts the majority approach in California that holds when a plaintiff resides in another state, the plaintiff’s choice of forum should be given substantial deference as with a California resident and should not be disturbed unless the balance of private and public factors strongly favors the defendant. (Morris, supra, 144 Cal.App.4th at pp. 1465 & fn. 6.)

b. Whether Eastern Revenue and Shanahan Have Waived Right to Forum Non Conveniens Motion

Contrary to the opposition arguments (Opp’n, p. 11 at § H), even if, arguendo, Eastern Revenue and Shanahan have waived jurisdiction and generally appeared by posting jury fees and participating in the removal and remand proceedings—an issue not before the Court and better to a § 418.10 motion—Eastern Revenue and Shanahan have not waived their statutory right to bring this motion pursuant to Code of Civil Procedure section 410.30. (Britton, supra, 153 Cal.App.4th at pp. 133-135.)

2. Whether a Suitable Forum Exists Elsewhere

a. Relevant Law

A suitable alternative forum exists when the “… defendants are subject to the court’s jurisdiction and the cause of action is not barred by the statute of limitations.” (Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 694.) “‘[A] forum is suitable where an action “can be brought,” although not necessarily won.’ [Citations.]” (Animal Film, supra, 193 Cal.App.4th at p. 472.) The existence of a suitable alternative forum is a legal question. (Ibid.)

b. Court’s Determination

Here, the Court finds that Defendants Eastern Revenue and Shanahan have failed to carry their burden of showing that Georgia is a suitable alternative forum. (Animal Film, supra, 193 Cal.App.4th at p. 472.)

First, the Court cannot locate a statement in Defendant Shanahan’s declaration that Eastern Revenue and Shanahan stipulate to submit to jurisdiction in Georgia, which is a necessary showing for determined that Georgia is a suitable alternative forum. The Complaint attaches a Statement of Information filed by Eastern Revenue with the State of California, which shows that Eastern Revenue is incorporated in Pennsylvania. (Complaint, Ex. A.) Eastern Revenue and Shanahan’s briefing confirms that Eastern Revenue is incorporated in Pennsylvania. (Mot., 3:1-2.) As such, it is not clear from the face of Eastern Revenue and Shanahan’s papers and attachments that they submit to the jurisdiction of Georgia’s courts.

Second, the Court cannot determine from the moving papers whether the statute of limitations has run on Plaintiff’s claims as based on Georgia law, which is a necessary showing for this Court to determine that Georgia is a suitable alternative forum. Eastern Revenue and Shanahan merely argue without further elaboration that “[t]here are no procedural requirements or statute of limitations issues as any claims asserted by Plaintiff relating to collection activity taking place in 2023 are still ripe.” (Mot., p. 5.) This argument fails to elaborate on the length of the applicable Georgia statute of limitations for the seven claims in this action and on the proper trigger date for the statute of limitations.

The Court notes that these deficiencies may be clarified at oral argument through oral stipulation to jurisdiction in Georgia courts and an explanation for why the statute of limitations on Plaintiff’s claims has not run in Georgia. The Court notes this is reasonable based on the opposition’s failure to rebut the statute of limitations argument raised in the moving papers, if cursorily. Plaintiff will be provided an opportunity to offer rebuttal arguments at the hearing.

3. Whether Balancing of Interests Favors Dismissal or Stay

a. Relevant Law

The second part of the analysis is the weighing and balancing of private and public factors. (National Football League, supra, 216 Cal.App.4th at p. 918.)

“The private interest facts are those that make trial and the enforceability of the ensuring judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest facts include avoidance of overburdening local courts with congested calendars, protecting the interest of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and the weighing of competing interests of California and the alternative jurisdiction in the litigation.” (Morris, supra, 144 Cal.App.4th at pp. 1463-1464.)

b. Court’s Determination

i. Private Interests

Here, the Court finds in favor of Plaintiff.

On balance, ease of access to proof does not favor dismissal or stay of this action. Defendant Shanahan’s declaration represents that Eastern Revenue mailed various collection notice documents to Plaintiff in the State of Georgia between September 2022 and June 2023. (Mot., Shanahan Decl., ¶¶ 4-9.) However, Eastern Revenue and Shanahan attach those very same letters to the moving papers. (Mot., Shanahan Decl., Ex. A.) Ease of access therefore is not an issue as to these letters.

And though this action involves a debt arising from Plaintiff’s attendance at Emmanuel University in Georgia, when discussing Plaintiff on the one hand and Eastern Revenue and Shanahan on the other, neither appear to have evidentiary connections with Georgia. Plaintiff represents that he has not lived in Georgia since 2021 and that he and counsel—his spouse—never moved to Georgia because Plaintiff and counsel “were scammed out of about $2,000 by [an attorney] and his clients” (Opp’n, J.P. Decl., ¶ 2), seemingly the individuals involved in the rental of the Georgia Property alleged in the Central District lawsuit discussed in Section II.A. and III. (Mot., RJN, Ex. A.) Yet, the Court has determined that insufficient evidence is before the Court to determine that Plaintiff currently resides in California—or even resided in California when this action was filed. In turn, Eastern Revenue operates out of Pennsylvania, and any records and witnesses relating related to Eastern Revenue and Shanahan presumably reside in Pennsylvania. The Shanahan declaration in the moving papers does not clarify this question. (Complaint, Ex. A; Mot., 3:1-2.)

Only Defendants Emmanuel University, Joann S. Harper (Director of Human Resources & Payroll Administrator at Emmanuel University, see Complaint, Ex. C), and Defendant Matt McCree (Chief Financial Officer at Emmanuel University, see Complaint, Ex. D) have a clear connection to Georgia, which is where Emmanuel University is located. Yet, in their moving papers, Defendants Eastern Revenue and Shanahan insufficiently elaborate the nature of the evidence that would derive from the Georgia-based Defendants. (Mot., p. 7.) And the reply conclusorily argues that the opposition’s private and public factor arguments are not supported by any “serious argument” while briefly noting that witnesses may exist outside of California. (Reply, p. 3.) These arguments fail to raise any substantive arguments for why access to evidence will be prejudicial to the Georgia-based Defendants, particularly in times when remote depositions have become more common since the outbreak of the COVID-19 virus, and where the Georgia-based Defendants and witnesses can likely operate from Georgia through California counsel.

Thus, on balance, the private interest factors do not favor a dismissal or stay.

ii. Public Interest

Here, the Court finds in favor of Plaintiff.

The Court disagrees with the moving papers arguments’ that public interest factors weigh in favor a dismissal or stay because Plaintiff incurred the debt at issue in this action when he attended the Georgia-based Emmanuel University, all collection efforts were directed to Plaintiff in Georgia, no party in this action resides in California, and Eastern Revenue did not make effort collections at California.

The Court finds that Eastern Revenue’s contention that J.P. is not a California resident and was not a California resident at the time this action was filed, is not supported. Despite the problems with J.P. and Shiloh’s declarations – which discovery may ultimately prove to be contradicted – there is insufficient evidence before this Court that J.P. lived at all relevant times in Georgia.

The fact that Eastern Revenue communicated with Plaintiff through Plaintiff’s use of a cell phone number with a Georgia area code does not change this conclusion. (Mot., Shanahan Decl., ¶ 10.) It is equally possible that Plaintiff obtained his cell phone number in Georgia and decided not to change his number as it is that Plaintiff has a Georgia number because he resides there.

Thus, on balance, the moving party’s evidence simply does not show a complete lack of connection to California. And because there is alleged to be a connection to California—an attempt to collect debt from an active serviceman through activities alleged to have taken place in California—California juries have an interest in this action, which overcomes any burdening of local courts where this Court and any potential juries have an interest in this case, as framed by the evidence before the Court.

The moving papers and reply do not address the weighing of competing interests of California and Georgia, for which reason this factor is not further addressed.

Thus, on balance, the public interest factors do not favor a dismissal or stay.

4. Disposition

Defendants Eastern Revenue and Shanahan’s motion is DENIED because it is not clear that Georgia is a suitable alternative forum and because the private and public interests do not favor a dismissal or stay of this action.

VI. Conclusion

Defendants Eastern Revenue, Inc., and Kyle Shanahan’s Motion to Dismiss or Stay Action Pursuant to Code of Civil Procedure § 410.30(a) is DENIED. The Court notes that the motion is denied without prejudice, as further discovery may provide additional evidentiary support.

However, the Court on its own motion ORDERS plaintiff to correct the deficiency of the unsigned Complaint by filing a Notice of Errata within 10 court days, attaching an identical complaint (i.e., no amendments of any kind), but with a handwritten signature (i.e., not “/s/”) by counsel. Failure to do so may result in the Court’s striking of the Complaint.