Judge: Gail Killefer, Case: 20STCV17157, Date: 2023-05-18 Tentative Ruling
Case Number: 20STCV17157 Hearing Date: May 18, 2023 Dept: 37
HEARING DATE: May 16, 2023
CASE NUMBER: 20STCV17157
CASE NAME: Lucia C. Early v. John D.
Early, et al.
TRIAL
DATE: None
PROOF OF SERVICE: OK
MOTION: Plaintiff/Cross-Defendant’s Motion to Dismiss
MOVING PARTY: Plaintiff/Cross-Defendant John
D. Early
OPPOSING PARTY: Defendant/Cross-Complainant Joseph
C. Stroh
OPPOSITION: May 3, 2023
REPLY: May 9, 2023
TENTATIVE: Cross-Defendant’s
motion is granted. Stroh’s Cross-Complaint is dismissed without prejudice for
forum non conveniens.
MOTION: Cross-Complainants’ Motion for Leave
to File Second Amended Cross-Complaint
OPPOSITION: May 3, 2023
REPLY: May 9, 2023
TENTATIVE: Cross-Complainants’
motion is denied. Cross-Defendant is to give notice.
This is a family dispute arising in connection with real
property located at 336 Flintridge Oaks Drive, La Canada-Flintridge,
California, 91011 (the “Property”). Plaintiff, Lucia Early (“Lucia”) allege
that she is the sister of Defendant, John D. Early (“John”), and that both, in
addition to Elizabeth V. Early (“Elizabeth”), are the surviving children of
Mary C. Early (“Mary”). Mary was born on October 2, 1930, and thus allegedly
qualifies as an elder for purposes of the Elder and Dependent Adult Protection
Act. Lucia alleges that on or about March 16, 2006, Mary, as the trustee of the
Mary C. Early Trust dated December 14, 2005 (the “Trust”) took title to the
property located at 366 Flintridge Oaks Drive, La Canada-Flintridge,
California, assessor’s parcel number 5820-011-013 (the “Property”) and later
restated the Trust to provide equally for her three children. Lucia alleges
that despite Mary’s actions, John successfully demanded that she amend her
Trust to exclude Lucia and transfer substantially all of the interest in the
Property to him. Thereafter, John allegedly removed Mary from the Property and
moved her to live with relatives in Missouri, despite alleged assurances that
Mary would be allowed to live in the Property for life.
Lucia’s Complaint, filed May 5, 2020 alleges six causes of
action: (1) interference with expected inheritance against John, (2) fraud
against John, (3) fraud against John, (4) constructive fraud against John, (5)
injunction against John, (6) restitution against John.
On August 19, 2020, the court deemed this action related
with John D. Early v. Lucia C. Early (Los Angeles Super Court case
number 20GDCV00556) (the “Related Action”) with the instant action deemed the
lead action. John’s Complaint in the related action alleges the following
causes of action: (1) intentional interference with contractual relations, (2)
intentional interference with prospective economic relations, (3) breach of
contract, (4) partition by appraisal of real property, (5) partition by sale of
real property, (6) specific performance, (7) declaratory relief.
On December 4, 2020, Lucia filed the First Amended Complaint
(“FAC”). The FAC alleges the same causes of action as the
Complaint.
On March 23, 2021, Lucia and Elizabeth
(“Cross-Complainants”) filed the operative First Amended Cross-Complaint
(“FACC”) in the Related Action. The FACC alleges the following causes of
action: (1) battery, (2) conversion, (3) statutory violation – theft, (4) elder
abuse, (5) conversion, (6) statutory violation – theft, (7) restitution, (8)
quiet title, (9) defamation. On March 24, 2021, the court deemed the Related
Action consolidated with this action.
On April 27, 2021, John’s demurrer to Lucia’s FAC was
sustained with 30 days leave to amend. On August 3, 2021, John’s Ex
Parte Application for an Order dismissing Lucia’s First Amended Complaint for
failure to amend was granted.
On September 30, 2022, Cross-Complainants David Krohn and
Joey D. Ball filed their Cross-Complaint against Mary C. Early as an individual
and as trustee of the Mary C. Early Trust, as well as against John.
On November 8, 2022, the court sustained Mary’s motion for
judgment on the pleadings as to causes of action 3, 4, and 6 of John’s
complaint with leave to amend.
On December 12, 2022, John filed his First Amended Complaint
alleging: : (1) intentional interference with contractual relations, (2)
intentional interference with prospective economic relations, (3) breach of
contract, (4), partition by sale of real property, (5) specific performance, (6)
declaratory relief.
On March 9, 2023, Defendant/Cross-Complainant Joseph Stroh
(“Stroh”) filed his Cross-Complaint against Cross-Defendants John, Tetyana
Early, and William S. Welch for: (1) trespass against John, (2) trespass to
chattels against John, (3) trespass to chattels against John, Tetyana Early,
and William S. Welch, and (4) defamation against William S. Welch.
Plaintiff/Cross-Defendant John now moves to dismiss the
Stroh action’s first three causes of action on the grounds of inconvenient
forum. Stroh opposes the motion.
Further, Cross-Complainants, Lucia and Elizabeth, move for
leave to file their Second-Amended Cross-Complaint (“SACC”). John opposes the
motion.
A defendant may move to stay or dismiss an action on
grounds of inconvenient forum. (CCP § 418.10(a)(2).) The
doctrine of forum non conveniens is codified in CCP § 410.30. (Animal Film,
LLC v. D.E.J. Prods., Inc. (2011) 193 Cal.App.4th 466, 471 (Animal
Film).) CCP § 410.30(a) provides: “[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, 193 Cal.App.4th at p. 472.)
“A forum is suitable if there is jurisdiction and no statute
of limitations bar to hearing the case on the merits. [Citation.] ‘[A]
forum is suitable where an action “can be brought,” although not necessarily
won.’ [Citations.]” (Animal Film, 193 Cal.App.4th at p.
472.) The existence of a suitable alternative forum is a legal
question. (Ibid.)
CCP § 410.30
provides: “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.” A mandatory forum selection clause is
a clause containing “express language of exclusivity of jurisdiction.” (Olinick¿v.
BMG Entertainment¿(2006) 138 Cal.App.4th 1286, 1294.) A forum
non¿conveniens¿motion generally requires the balancing of public and private
factors. (Id.) However, where there is a mandatory forum selection
clause, the test is simply whether application of the clause is unfair or
unreasonable. (Id.) Thus, Courts typically enforce mandatory forum
selection clauses unless they are found to be unfair or unreasonable. (Id.;
see also¿Lu v.¿Dryclean-U.S.A. of California, Inc.¿(1992) 11 Cal.App.4th
1490, 1493.)
CCP § 418.10
states, in relevant part: “(a) A defendant, on or before the last day of his or
her time to plead or within any further time that the court may for good cause
allow, may serve and file a notice of motion for one of more of the following
purposes: . . . (2) to stay or dismiss the action on the ground of inconvenient
forum.” CCP § 418.10(b)’s codification of “[f]orum 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.)
The first part of
the analysis in determining whether an action should be dismissed due to being
filed in an inconvenient forum is whether a suitable alternative forum
exists. (See Stangvik, supra, 54 Cal.3d 744, 752; National
Football League v. Fireman’s Fund Ins. Co. (2013) 216 Cal.App.4th 902,
918.) 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.)
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 v. AGFA Corp. (2006) 144 Cal.App.4th 1452,
1463-1464.)
The party seeking
a dismissal due to an inconvenient forum bears the burden of proof. (National
Football League v. Fireman’s Fund Ins. Co. (2013) 216 Cal.App.4th 902,
926.)
First,
John contends that Cross-Defendant Stroh brings this action against “other
Virginia residents... in a California court for claims that have nothing to do
with California.” (Motion, 1.) John further contends that he and Tetyana Early
are both Virginia residents, and the remaining Cross-Defendant, William S.
Welch, is a resident of Missouri. (Id.)
“His
causes of action arise from events that took place in Virginia, and have no
relation at all to California. Because these events took place in Virginia, all
of the witnesses and evidence are in Virginia. California is therefore not the
appropriate forum.” (Id.)
The motion further correctly explains that while this
action, including John’s Complaint, involve real property in California, Stroh’s
action involves Stroh’s home in Fairfax County, Virginia. (Motion, 2-3.) The
motion then continues to correctly contend that Virginia is a suitable forum
given the parties’ residence in Virginia, the longer statute of limitations for
these claims in Virginia, and available remedies under Virginia law for Stroh’s
claims, at least those not barred by the statute of limitations. (Motion, 3-5.)
“The facts of this case make it clear that trial would be the
most expeditious and least expensive in Virginia. All of the witnesses are in
Virginia, the litigants are both Virginia residents, and all of the evidence is
located in Virginia. As an example, consider the trespass to chattels claim
whereby Joseph alleges that his pet had to be euthanized as a result of John
kicking the dog. To prove that it was John allegedly kicking the dog that
caused the pet to be later euthanized, counsel would have to request records
from the veterinarian who examined the dog and determined euthanasia was the
only course of action. Unless Joseph went out of state to have his dog examined,
these records and this veterinarian are more than likely located in Virginia.
It would be incredibly expensive for Early’s counsel to depose witnesses, such
as this veterinarian, in California and to have these witnesses brought to
trial.
Moreover, discovery has already concluded in California for
the claims raised in John’s Complaint, and none of the discovery done relates
to the Requested Causes of Action. It would be very time-consuming and
expensive to reopen discovery for matters that are in no way related to the
issues currently being addressed in California. Bringing all of the witnesses
to California would be not only inconvenient and costly, but we are also still
dealing with the COVID-19 pandemic, and forcing the witnesses and litigants to
travel to California could potentially expose the individuals to COVID-19.
There is no reason why the Requested Causes of Action should be heard in
California when they are completely unrelated to the current issues being
addressed California, and the litigants and witnesses would be greatly
inconvenienced and potentially exposed to COVID-19 as a result.” (Motion, 6-7.)
In opposition, Stroh makes the conclusory contention:
“In light of the fact that John has chosen this forum to
proceed with causes of action which clearly arose out of conduct that occurred
in the State of Virginia, he cannon [sic] seriously argue that this
forum is a ‘seriously inconvenient forum’... Indeed, the same witnesses will be
present for the defense of John’s claims against Stroh as would be present for
the presentation of Stroh’s cross-complaint. While there may be some
additional exhibits such as the video of John attempting to break into Stroh’s
home, and kicking the family pet in the side prior to leaving the premises,
such evidence is not likely to extend the trial by more than one-half hour if
that much. Likewise, the cause of action based upon the diversion of Stroh’s
mail should consume less than one hour.
Whether discovery has or has not been concluded is not
relevant to the issues presented in this motion. Indeed, discovery had been
closed for several months prior to the date that John filed his amendment naming Stroh in place of Doe 1,
which ostensibly, bars Stroh from conducting any discovery whatsoever. So, once
again, John cannot seriously argue that he alone will be barred from conducting
discovery.” (Opp., 4.) (emphasis added)
In reply, John correctly contends Stroh seeks to apply an
incorrect standard in determining the inconvenient forum analysis here. (Reply,
3-4.)
“Here, ... we have a noncitizen plaintiff who is not entitled
to a presumption of convenience. While Joseph argues that his forum choice
should not be disturbed unless the balance is strongly in favor of John,
counsel for Joseph clearly does not understand that the reasons underlying this
rule apply only to residents of the forum state. Since Joseph is not a resident
of the forum state, California, his choice is not presumed to be convenient and
California would not have a strong interest in assuring that a Virginia
resident has a forum for the redress of his grievances that occurred in
Virginia and have nothing to do with California.” (Reply, 4.)
Again in the reply, John correctly identifies that his
claims center around real property located in California, whereas Stroh’s
claims revolve around “events that happened solely in Virginia...” (Reply,
5-6.) The court finds this clear distinction instructive.
Further, the court here notes that Stroh’s opposition, as
outlined above, clearly concedes the introduction of new witnesses, exhibits,
and circumstances, completely irrelevant from the other factual scenarios at
issue in this matter. Also, while Stroh’s opposition asserts conclusions
regarding the burden, or supposedly the lack of burden, these new exhibits and
witnesses may place on the court, Stroh provides absolutely no support for such
a contention. Nor does Stroh provide support to suggest that all witnesses and
exhibits are not in Virginia, and that maintaining these claims in California
will not require the transporting of persons and documents from Virginia to
California.
Given the foregoing, the court agrees with Cross-Defendant
John that Virginia is a more suitable venue for Stroh’s claims, given the
relative convenience to the parties and potential witnesses, involved experts,
persons, and entities, and as the residence for the vast majority of the
parties at issue in Stroh’s Cross-Complaint.
Exercising its own discretion, this court finds Virginia to
be the more appropriate venue, and for these reasons, Cross-Defendant’s motion
is granted. Stroh’s Cross-Complaint is dismissed without prejudice.
Conclusion
Cross-Defendant’s motion is granted. Stroh’s Cross-Complaint
is dismissed without prejudice for forum non conveniens.
Cross-Complainants’
Motion for Leave to File Second Amended Cross-Complaint
Discussion
I.
Legal Standard
California
law holds that leave to amend is to be granted liberally, to accomplish
substantial justice for both parties. (CCP § 473(a); Hirsa v.
Superior Court (1981) 118 Cal.App.3d 486, 488-489 (Hirsa))
“Assuming proper notice, the trial court has wide discretion in determining
whether to allow the amendment, but the appropriate exercise of that discretion
requires the trial court to consider a number of factors: ‘including the
conduct of the moving party and the belated presentation of the
amendment.
The law
is well settled that a long-deferred presentation of the proposed amendment
without a showing of excuse for the delay is itself a significant factor to
uphold the trial court's denial of the amendment.” (Leader v. Health
Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the
motion to amend is timely made and the granting of the motion will not
prejudice the opposing party, it is error to refuse permission to
amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527,
530.) Prejudice includes “delay in trial, loss of critical evidence, or
added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York
Branch (1999) 68 Cal.App.4th 1435, 1448.) “The power to permit
amendments is interpreted very liberally as long as the plaintiff does not
attempt to state facts which give rise to a wholly distinct and different legal
obligation against the defendant.” (Herrera v. Superior Court (1984)
158 Cal.App.3d 255, 259.) The court, however, has the discretion to
deny an amendment that fails to state a cause of action or defense. (Foxborough
v. Van Atta (1994) 26 Cal.App.4th 217, 230.)
II.
Analysis
A. Procedural Considerations
A party requesting leave to amend must comply
with California Rules of Court, rule 3.1324. A motion to
amend a pleading before trial must state which allegations were deleted from
and which allegations were added to the previous pleading and identify the
changes “by page, paragraph, and line number.” (Cal. Rules of Court, rule
3.1324(a).)
Cross-Complainants’
proposed SACC seeks to make the following changes to the FACC: (1) clerical and
technical corrections regarding the alleged diversion of stock dividends, (2)
introduction of a tenth cause of action by Elizabeth against William S. Welch
for false imprisonment, and (3) introduction of an eleventh cause of action for
trespass against John. (Motion, 5-6.) Cross-Complainants also submit a copy of
the proposed SACC as Exhibit 1 to the Declaration of David A. Cordier (“Cordier
Decl.”) accompanying the motion.
Cross-Complainants
have demonstrated compliance with California Rules of Court, rule 3.1324,
subdivision (a).
Additionally, “[a] separate declaration must accompany
the motion and must specify: (1) The effect of the amendment; (2) Why the
amendment is necessary and proper; (3) When the facts giving rise
to the amended allegations were discovered; and (4) The reasons why the
request for amendment was not made earlier.” (Cal. Rules of Court,
rule 3.1324(b).)
Cross-Complainants
submit the Cordier Declaration in support of its motion. According to Cordier,
he attests the amendments are necessary now and were not discovered earlier since
he “was not aware of the nature and extent” of the false imprisonment claims
against William S. Welch, and was further “unaware” of proceedings regarding
the trespass claims. (Cordier Decl. ¶¶2-4.) Further, Cross-Complainants contend
that the new allegations “were not discovered until after filing the FACC”
regarding John’s alleged conduct. (Motion, 5.)
The
court finds the Cordier Declaration sufficient for purposes of California Rules
of Court, rule 3.1324(b). The Cordier Declaration explains in a general fashion
the effects of the proposed SACC, why the amendments are necessary, and why the
amendments were not sought earlier. This is sufficient.
B. Substantive Considerations¿
Generally, motions for leave to amend will be granted
unless the party seeking to amend has been dilatory in bringing the proposed
amendment before the court and the delay in seeking leave to amend will cause
prejudice to the opposing party.¿ (See¿Atkinson v. Elk Corp.¿(2003)¿109
Cal.App.4th 739, 761 [“ ‘[I]t is an abuse of discretion to deny leave to amend
where the opposing party was not misled or prejudiced by the amendment.’
[Citations.]¿ Furthermore, ‘it is irrelevant that new legal theories are
introduced as long as the proposed amendments “relate to the same general set
of facts.” [Citation.]’ ”];¿Hirsa,¿supra,¿118 Cal.App.3d
at p. 490.)¿ Indeed, “courts are much more critical of proposed amendments ...
when offered after long unexplained delay or on the eve of trial [citations],
or where there is a lack of diligence, or there is prejudice to the other party
[citations].”¿ (Permalab-Metalab¿Equipment Corp. v. Maryland¿Cas. Co.¿(1972)
25 Cal.App.3d 465, 472.)¿¿¿
Cross-Complainants
contend that the motion should be granted as all parties have not filed
responsive pleadings, or answers, and their defaults have yet to be requested,
meaning that “this case is not yet at issue as to all named parties.” (Motion, 4-5.)
“In light of the fact that this case is not at issue as to all parties,
there is cannot be [sic] any legitimate claim of prejudice to any party.
The proposed amended complaint simply cannot be viewed as being made on the
‘eve of trial.’” (Motion, 5.)
In
opposition, Cross-Defendant John contends that Cross-Complainants offer no
valid reason for their delay in seeking leave to amend. (Opposition, 5-6.)
According to Cross-Defendant, “Cross-Complainants have known of the facts
underlying the proposed amendments since at least February of 2021, and they
had the opportunity to include these in their [FACC], but they did not.” (Id.)
“The proposed
amendment regarding the CALPERS diversion should be denied because
Cross-Complainants have known about these withdrawals for more than two years.
The deposit of the CALPERS benefits into the Bank of America account, which
Cross-Complainants fail to mention was an account held jointly by Mary and
John, was included in the informal accounting that was issued to the
Cross-Complainants in 2021.
...
As to the proposed addition of a
trespass cause of action, Lucia concedes that the incident occurred on February
8, 2021 in her Declaration, and she states that a video was taken of the
incident. [] Given that Lucia and Elizabeth filed their amended cross-complaint
on March 22, 2021, they should have added this cause of action for trespass
back then, instead of waiting more than two years after. Cordier states that he
was only aware of Virginia proceedings for a restraining order, but Cordier
must have been aware of the actions since his clients acknowledge that the
alleged trespass occurred, and there is a video of the incident.” (Opp., 6.)
Additionally,
Cross-Defendant John contends that he will be prejudiced if the motion is
granted because “all the amendments allege new facts.” (Opposition, 7.) As the
discovery deadline has now passed, Cross-Defendant contends this would mean
that “discovery would need to be reopened” and “will require Cross-Defendant to
mount a new and different defense, conduct new discovery, and re-start the
clock on this litigation.” (Id.)
In
opposition, Cross-Defendant John also contends that the new cause of action for
trespass should be denied and stricken as California is not an appropriate
forum, following similar analysis to the forum non conveniens motion above.
(Opp., 7-10.) Further, Cross-Defendant contends the motion fails to identify
what allegations will be amended regarding the alleged diversion of stock
funds:
“Cross-Complainants
want to add the diversion of funds allegation to the common allegations
portion, which is not proper, especially because John’s demurrer was sustained
with prejudice as to the alleged claims of theft and conversion against Mary C.
Early. Cross-Complainants must specifically state which cause of action is to
be changed by the added allegation, excluding those causes of action where
John’s demurrer was sustained with prejudice.” (Opp., 10.)
In their reply, Cross-Complainants contend they have offered
a reasonable excuse for their delay—namely, that the conduct allegedly
perpetrated by John was partially undiscovered until after filing the FACC on
March 23, 2021. (Reply, 2-5.) Further, they contend allegations of trespass
were not brought in Virginia courts against John because of Lucia’s incorrect
assumption that a pending restraining order litigation also included such
claims. (Reply, 5.)
The court does not find Cross-Complainant’s incorrect
assumption to be a reasonable excuse for not bringing forth actions in the more
appropriate venue, where the trespass allegedly occurred. Also, the court does
not find Cross-Complainants’ excuse in their delay of nearly two years to be
reasonable in requesting leave to file the SACC. Cross-Complainants fail to
explain when the alleged conduct was discovered or perpetrated, and only ask
this court to accept a delay of two years without sufficient explanation.
Further, Cross-Complainants contend the new amendments will
only create “minimal, if any, prejudice” to Cross-Defendant, but they allege
entirely new causes of action—and more importantly, relate specifically to
events which took place in Virginia. (Reply, 6.) While Cross-Complainants
contend California is a proper forum for these amended claims because John’s
claims implicated some sequence of events which already occurred in Virginia,
the new amendments or new claims would center specifically on Virginia property
and Virginia witnesses. (Reply, 6-7.) Cross-Complainants have not made a
sufficient showing as to why there is less prejudice in bringing these claims
in California, than there would be in bringing these specific claims against
John in Virginia.
The court has reviewed Cross-Complainants’ proposed SACC and
finds that it does not relate to the same general set of facts as the FACC.
Specifically, the court is persuaded by Cross-Defendant John’s arguments that
claims of trespass regarding property in Virginia do not relate to the same
claims at the heart of the FACC, and this entire litigation. Further, the court
is also persuaded by John’s arguments that amending the FACC to include new
common allegations regarding an alleged diversion of funds goes again to claims
which have been previously dismissed with prejudice.
For these reasons, Cross-Complainants’ motion is denied.
Conclusion
Cross-Complainants’ motion is denied. Cross-Defendant is to
give notice.