Judge: Gary Y. Tanaka, Case: 21TRCV00642, Date: 2022-09-29 Tentative Ruling
Case Number: 21TRCV00642 Hearing Date: September 29, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Thursday, September 29, 2022
Department B Calendar No. 6
PROCEEDINGS
Luke Nicholson v. Frank Henley, et al.
21TRCV00642
1. Frank Henley’s Motion to Dismiss or Stay for Forum Non Conveniens, or, in the Alternative, to Change Venue
TENTATIVE RULING
Frank Henley’s Motion to Dismiss or Stay for Forum Non Conveniens, or, in the Alternative, to Change Venue is denied.
Background
Plaintiff filed the Complaint on August 31, 2021. Plaintiff’s First Amended Complaint was filed on October 28, 2021. Plaintiff provided to the Defendants cash, goods, and services in connection with work on the home of Defendants. In return, Defendants agreed to give Plaintiff land in Mexico. Defendants failed to perform. Plaintiff alleges the following cause of action: 1. Promise Made Without Intention to Perform.
Objections
Plaintiff’s objections 1, and 3 to 7 are sustained. Plaintiff’s objection 2 is overruled
Motion to Dismiss or Stay Based on Forum Non Conveniens
“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 determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a “suitable” place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial 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. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” Id. “An alternative forum is suitable if it has jurisdiction and the action in that forum will not be barred by the statute of limitations.” Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696.
Code Civ. Proc., § 418.10(e)(3) states:
“A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint. … (3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.”
Code Civ. Proc., § 410.30(b) states:
“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.”
Defendants move to dismiss, or in the alternative to stay, the claims of Plaintiff based on forum non conveniens. The motion is made on the grounds that the primary place of residents of Defendants and witnesses is Baja, Mexico, the allegations giving rise to the action occurred in Baja, Mexico, and the real property at issue is in Baja, Mexico.
The Court finds that Defendants failed to provide competent evidence to establish the first factor outlined in Stangvik, as noted above: that the alternate forum is a “suitable” place for trial. To show that the alternate forum is a suitable place for trial, Defendants must establish that all Defendants are subject to that forum’s jurisdiction. Here, Defendants submitted no competent evidence to show that Defendant Nazaria Nunez Villalobos is subject to jurisdiction in Mexico. This contention is supported only by the conclusory, objectionable declaration of Defendant Frank Henley who simply states that Villalobos resides in and is a citizen of Mexico without any declaration from Villalobos herself, and without providing any foundation for his personal knowledge as to this statement.
“Even if the major, or “primary,” defendants can be sued in the proposed alternative forum [...] the moving party must show that all other defendants, whether or not as central to the litigation, are subject to its jurisdiction as well. ... The court's discretion to decline to exercise its authorized jurisdiction over an action for considerations of convenience is limited by the proviso that another forum must be available for the plaintiff's action. A rule permitting a stay or dismissal of an action over which no single alternative court could exercise jurisdiction would force the plaintiff to pursue separate actions in multiple states or countries to obtain complete relief. Such a rule, by encouraging piecemeal litigation and blossoming numbers of actions in multiple jurisdictions, would threaten precisely those considerations of convenience, economy and justice the doctrine was designed to bolster. It would also encourage the tactical use of forum non conveniens motions, not for valid reasons of public and private convenience, but to overburden plaintiffs with the difficulty and expense of litigating on multiple fronts. American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 438–39.
Because Defendants fail to establish the first factor for forum non conveniens, the Court need not proceed to the second factor. However, the Court notes that the substance of the arguments made in the opposition, as well as the objections asserted by Plaintiff, with respect to the objectionable nature of the declaration of Frank Henley, are well taken. Significant portions of the declaration are objectionable based on lack of foundation and lack of facts setting forth his basis for personal knowledge of the statements therein. Defendants failed to provide competent evidence to meet the private and public interest factors to support a motion to dismiss based on forum non conveniens.
Defendants’ attempt to rely on the venue statute (CCP § 395) is unavailing because the venue statute specifically deals with whether a particular county in the State of California is the proper place for trial. However, jurisdiction in California is a prerequisite to rely on the venue statute.
In addition, the Court declines to grant the motion simply based on the equitable power of the Court to stay a proceeding as doing so would be in direct contravention of specific case law requiring the showing of a suitable forum for all Defendants, as noted above.
Therefore, Defendants’ Motion to Dismiss, or, in the Alternative, to Stay for Forum Non Conveniens is denied.