Judge Ashfaq G. Chowdhury, Case Number: 24NNCV01638, Date: 2024-10-04 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV01638, Date: 2024-10-04 Tentative Ruling

Case Number: 24NNCV01638 Hearing Date: October 4, 2024 Dept: E

Case No: 24NNCV01638
Hearing Date: 10/04/2024 – 8:30am

Trial Date: UNSET

Case Name: MIRIAM YOCUPICIO v. PANDA RESTAURANT GROUP, INC. and DOES 1-100

TENTATIVE RULING ON MOTION TO STAY OR DISMISS ACTION FOR FORUM NON CONVENIENS

RELIEF REQUESTED
“Defendant Panda Restaurant Group, Inc. will, and hereby does, move for an order pursuant to Code of Civil Procedure sections 410.30(a) and 418.10(a)(2), to dismiss or in the alternative stay the above-entitled action based on inconvenient forum. The motion will be made on the grounds that at all relevant times Plaintiff was a resident of the State of Washington; that the incident at issue in this action occurred in the State of Washington; nearly all parties, including those who prepared Plaintiff’s food reside in the State of Washington; all of Plaintiff’s treatment has occurred in the State of Washington; nearly every witness int his case is expected to reside in the State of Washington; and it is in the interest of substantial justice and judicial economy that the action be dismissed or stayed as the State of Washington is a suitable alternative forum, and California is an inconvenient forum, based on the private and public interest factors set forth in Stangvik v. Shiley, Inc., 54 Cal. 3d 744 (1991).

The motion will be based on this notice of motion, on the declaration of Ben M. Armistead, the attached memorandum of points and authorities, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.”

(Def. Mot. p. 2.)

PROCEDURAL
Moving Party: Defendant, Panda Restaurant Group, Inc.

Responding Party: Plaintiff, Miriam Yocupicio

Moving Papers: Motion

Opposition Papers: Opposition

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

BACKGROUND
Plaintiff, Miriam Yocupicio, filed the instant action on 7/12/2024.

Plaintiff alleges that at all relevant times, Plaintiff was a resident of the State of Washington. (Compl. ¶ 3.) Plaintiff alleges that Defendant, Panda Restaurant Group, Inc. (Panda), is a California Corporation with its principal place of business in Rosemead, California. (Compl. ¶ 4.)

Plaintiff alleges that on or about March 31, 2024 she purchased food from a Panda Express Restaurant located in Renton, Washington that is owned, controlled, managed, operated, directed, and/or maintained by Defendant Panda. (Compl. ¶ 5.)

Plaintiff alleges that on the same day she purchased the food, she returned home to consume the food and that while she was consuming the dish she immediately felt pain and a sensation as though something was stuck in her throat. (Compl. ¶ 6.) Plaintiff alleges that upon being admitted to a nearby hospital, imaging revealed a long thin object lodged in Plaintiff’s throat that turned out to be a metal bristle. (Compl. ¶ 7. ) Plaintiff alleges that the metal bristle was removed by emergent surgery. (Compl. ¶ 7.)

Plaintiff’s Complaint alleges three causes of action against Panda for: (1) Breach of Implied Warranty, (2) General Negligence, and (3) Strict Liability.

Plaintiff’s FAC alleges in part that Panda’s officers, directors, and managing agents were: (1) aware of a widespread policy and practice using metal bristle brushes to clean food preparation equipment in restaurants they own and operate (See FAC ¶¶ 16, 34, 54); (2) knew that bristles regularly dislodged from wire cleaning brushes and would become embedded in and/or contaminate food they manufactured and distributed to the general public resulting in serious injury or risk of injury (See FAC ¶¶ 18, 36, 56); (3) had been frequently advised of claims by patrons of their restaurants that metal bristles, and other foreign objects, had been found in products sold, manufactured, and distributed by their restaurants that had either caused injuries or could have caused injures to their patrons eating their food (See FAC ¶¶ 19, 37, 57); and (4) were aware of a widespread policy and practice of failing to address aforementioned claims when Panda employees and/or agents (located in California) received them (See FAC ¶¶ 19, 37, 57).

ANALYSIS
Defendant moves under CCP § 410.30(a) to have this action heard in the State of Washington.

“When 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.” (CCP § 410.30(a).)

“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.)

“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, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 472.)

Suitable Alternative Forum
“The trial court’s first determination, whether there is a suitable alternative forum, is a nondiscretionary legal question subject to de novo review.” (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1464.) “A forum is suitable if there is jurisdiction and no statute of limitations bar to hearing the case on the merits.” (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 472.)

Defendant argues that the State of Washington is a suitable alternative forum because: Plaintiff’s Complaint admits she is a resident of Washington, the injury occurred less than one year ago in the State of Washington, personal injury causes of action are subject to a three-year limitations period under Revised Code of Washington section 4.16.080, and King County, where the subject restaurant is located, is a general jurisdiction trial court that hears any kind of civil case based on the King County Superior Court website.

In Opposition, Plaintiff does not dispute that Washington could have jurisdiction of this case, nor does Plaintiff dispute that there is a bar of the case based on the statute of limitations.

Balancing Private and Public Interests
As stated in Animal Film, LLC v. D.E.J. Productions, Inc.:

If the court determines that a suitable alternative forum exists, it must decide whether the private and public interests, on balance, favor retaining the action in California. “The private interest factors are those that make trial and the enforceability of the ensuing 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.” (Stangvik, supra, 54 Cal.3d at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.) The residences of the plaintiff and defendant are relevant, and a corporate defendant's principal place of business is presumptively a convenient forum. (Id. at pp. 754–755, 1 Cal.Rptr.2d 556, 819 P.2d 14.) If the plaintiff is a California resident, the “plaintiff's choice of a forum should rarely be disturbed unless the balance is strongly in favor of the defendant. [Citations.]” (Id. at p. 754, 1 Cal.Rptr.2d 556, 819 P.2d 14; see Bechtel Corp. v. Industrial Indem. Co. (1978) 86 Cal.App.3d 45, 51–53, 150 Cal.Rptr. 29.) The public interest factors include avoidance of overburdening California courts, protecting potential jurors who should not be called on to decide cases in which the local community has little concern, and weighing the competing ties of California and the alternate jurisdiction to the litigation.

(Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 473.)

Here, it is undisputed that Defendant’s principal place of business is in California; therefore, California is a presumptively convenient forum. However, a resident defendant may overcome the presumption of convenience by evidence that the alternate jurisdiction is a more convenient place for trial of the action. (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1465.) “The trial court must be flexible in its weighing of the factors.” (Id.) “[P]rivate and public interest factors must be applied flexibly, without giving undue emphasis to any one element.” (Id. quoting Stangvik, supra, 54 Cal.3d at p. 753.)

Here, Defendant appears to have met its burden in overcoming the presumption of convenience by showing that the State of Washington is a more convenient place for trial of the action and that California is seriously inconvenient.

The balancing of private and public interests strongly support the State of Washington as being the more convenient forum.

The private interest factors seem to weigh in favor of Washington being the more convenient forum. The injury that this action is premised on is based on food being consumed that contained a metal bristle. The Plaintiff lived in Washington, the restaurant that the food was purchased from was in Washington, Plaintiff went to a hospital in Washington, and Plaintiff consumed the food with her three children and sister that were in Washington with her.

Therefore, ease of access to sources of proof and the cost of obtaining the attendance of witnesses lean in favor of Washington being the more convenient forum.

Although Plaintiff argued that this action is grounded in the actions and inactions of Panda’s corporate officers, and thus those witnesses would be located in California, the Court does not find this argument availing as to why California would be the state with the easiest access to proof and costs of obtaining witnesses. As Defendant points out, its witness would likely be a PMK witness of the corporation.

The Court finds some validity to Plaintiff’s argument that the identity and location of the witnesses in the trial and throughout discovery is somewhat speculative. However, this speculation appears to cut both ways. And when evaluating the admissions of the allegations in this Complaint overall, it appears as if the ease of access to the sources of proof and the cost of obtaining attendance of witnesses weighs in favor of this action being in Washington based on the fact that the injury occurred in Washington, to a Washington resident, from food that was bought and consumed in Washington, and the Washington resident was treated at a Washington hospital by doctors in Washington.

As stated in Morris v. AGFA Corp. :

As another division of the First District recently stated: “Stangvik did not require an extensive evidentiary showing. The principal evidentiary showing Stangvik requires is that trial may be had in the alternative forum and that some form of relief may be granted.... Examination of the private and public interests at stake involve more general considerations.” (Campbell v. Parker–Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1542, 82 Cal.Rptr.2d 202; see, e.g., Hemmelgarn v. Boeing Co. (1980) 106 Cal.App.3d 576, 585–590, 165 Cal.Rptr. 190 [court looks to general facts of case and general considerations under forum non conveniens factors, and makes both a quantitative and a qualitative analysis].)

In other words, the evidence before the court, which may include affidavits of the parties, discovery responses, and the undisputed general knowledge of the nature of the action, need only be sufficient to give the court the ability to soundly exercise its discretion regarding the applicability of the general considerations of the Stangvik, supra, 54 Cal.3d 744, 1 Cal.Rptr.2d 556, 819 P.2d 14, factors to the question of forum non conveniens.

(Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462.)

Further, not only do the private factors seem to demonstrate that this case should be held in Washington, when balancing the public factors, those factors also demonstrate that this case should be heard in Washington.

Although Plaintiff argues that California residents have a great interest in determining facts regarding the business practices of a California corporation, the Court does not find this argument persuasive.

“As Hansen observed, “California courts ... have little or no interest in litigation involving injuries incurred outside of California by nonresidents.” (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1467 citing Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 760.)

Here, although Defendant is a California corporation, the injury occurred to a Plaintiff who is a Washington resident and was injured while in Washington; therefore, by having this action tried in Washington, potential California jurors would be protected from being called on to decide cases which the local community has little concern.

Further, hearing this in Washington would avoid overburdening California courts with cases from injuries that occurred in Washington. On page 13 of Plaintiff’s opposition, Plaintiff’s counsel admits that “While Plaintiff’s counsel intends to file further cases, the total number of cases will likely be under 100.” (Oppo. p. 13.)

Plaintiff argues that California has a greater interest in this matter than any other forum because California has a paramount interest in regulating corporate policies and practices which have the potential to cause and have in fact caused numerous injuries to Californians and their residents. Plaintiff relies on Roulier v. Cannondale (2002) 101 Cal.App.4th 1180 to support her argument here.

The Court does not find Plaintiff’s argument as to Roulier availing because in Roulier, although the injury occurred in a bicycle accident in Switzerland, the bicycle was sold and purchased in California.

Here, not only did the injury occur in Washington, but the food was sold and purchased in Washington, not California.

On balance, the private and public factors weight in favor of this case being heard in Washington because Washington is a more convenient forum and California is an inconvenient forum.

TENTATIVE RULING

Defendant’s motion to dismiss or stay this action based on inconvenient forum is GRANTED. The Court will hear argument as to how it should proceed as to if a stay or if a dismissal is more appropriate.

Defendant’s motion to strike punitive damages from the Complaint is DENIED AS MOOT since this Court plans to dismiss/stay the action so that Plaintiff can file the action in Washington if she so pleases.

The Reply correctly pointed out that the Opposition was untimely. However, this Court utilized its discretion and still considered the untimely Opposition.