SUBJECT:                MOTION TO QUASH SERVICE OF SUMMONS AND                                                             COMPLAINT, OR IN THE ALTERNATIVE TO DISMISS FOR                                       FORUM NON CONVENIENS

MOVING PARTY:   Defendants Four Seasons Hotel Limited, Martell Capital Group, LLC dba Irongate and JG Martel Group, Inc. (collectively “Four Seasons Defendants”)

RESP. PARTY:         Plaintiff William Quicksilver

TENTATIVE RULING

            Defendants Four Seasons Hotel Limited, Martell Capital Group, LLC dba Irongate and JG Martel Group, Inc.’s (collectively “Four Seasons Defendants”) Motion to Quash Service of Summons and Complaint, or in the alternative to Dismiss for Forum Non Conveniens is withdrawn as to the Motion to Quash and DENIED as to the Motion to Dismiss based on Forum Non Conveniens. 

APPLICABLE LAW

            If the court finds that "in the interest of substantial justice" an action filed in California should be adjudicated elsewhere, it may stay or dismiss the action on such conditions as may be just.  (CCP §410.30(a).)  The statute codifies the common law doctrine of forum non conveniens. This is not a jurisdictional doctrine. Rather, it is “an equitable doctrine invoking the discretionary power of a court to decline the exercise of jurisdiction (to stay or dismiss) 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.  78.)

            “Except in extraordinary cases, a trial court has no jurisdiction to dismiss an action brought by a California resident on the grounds of forum non conveniens… In light of the policy of assuring an adequate forum for the California resident, ‘the exceptional case which justifies the dismissal of a suit under the doctrine of forum non conveniens is one in which California cannot provide an adequate forum or has no interest in doing so.’”  (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 129.) 

            “A trial court considering a forum non conveniens issue engages in a two-step process, the first of which is to determine whether a suitable alternative forum exists.  Where there is a suitable alternative forum, the court proceeds to the next step, consideration of the private interests of the parties and the public interest in keeping the case in California.”  (National Football League v. Fireman's Fund Ins. Co. (“NFL”) (2013) 216 Cal.App.4th 902, 917 (quoting Stangvik).)

            “The defendant, as the moving party, bears the burden of proof on a motion based on forum non conveniens.  It is the trial court's duty to weigh and interpret evidence and draw reasonable inferences therefrom.”  (Id. at 918.)  “There thus must be evidence—not merely bald assertions—to support the trial court's determination.”  (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 610.) 

            In determining whether to grant a motion based on forum non conveniens, a court must (1) determine whether the alternate forum is a ‘suitable’ place for trial and if so, (2) 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.” (Stangvik, supra, 54 Cal.3d at 751.)  All the following factors must be weighed in each case.  (Shiley, Inc. v. Sup.Ct. (1992) 4 Cal.App.4th 126, 133-134.) 

            There is currently a split in authority over whether a defendant must establish that California is a “seriously inconvenient forum.”  Under Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611, even where a plaintiff is a nonresident, the plaintiff’s choice of forum should rarely be disturbed and a defendant challenging the forum based on forum non conveniens must demonstrate that California is a “seriously inconvenient forum.”  (Ford Motor Co., supra, 35 Cal.App.4^th at 611; Morris v. AGFA Corp.  (2006) 144 Cal.App.4^th 1452 (trial judge properly stayed wrongful death action arising from chemical exposure, where plaintiffs were Texans and nearly all exposure occurred in Texas; defendants' consent to Texas jurisdiction made Texas suitable alternative forum, and, under Stangvik analysis, California was seriously inconvenient forum.) 

            In NFL, the court declined to apply the “seriously inconvenient forum” standard, arguing that even if such a standard applied to motions to dismiss based on forum non conveniens, it should be reserved for cases where a defendant moves to dismiss a case based on forum non conveniens.  (NFL, supra, 216 Cal.App.4^th at 933.)  The NFL court strongly questioned whether “seriously inconvenient” “properly describes a moving party’s burden of proof, even for dismissal motions against resident plaintiffs.”  (Id. at fn 14.)  The court in Fox Factory, Inc. v. Sup.Ct. (Isherwood) (2017) 11 Ca.App.5th 197, 207 narrowed application of the “seriously inconvenient” standard to cases where plaintiff is a resident.  (Fox Factory, Inc., supra, 11 Cal.App.5th at 207 (error for court to apply “seriously inconvenient” forum standard to defendant where plaintiff was nonresident.) 

APPLICATION TO FACTS

            Four Seasons Defendants filed a Motion to Quash, or in the alternative, a Motion to Dismiss based on Forum Non Conveniens.  On reply, Four Seasons Defendants indicated they are withdrawing their Motion to Quash and are only proceeding with the Motion to Dismiss based on Forum Non Conveniens

            I.  No presumption of convenience arises as to Four Seasons Hotels Limited but presumption of convenience arises as to JG Martell Group, Inc. and Martell Capital Group LC d/b/a Irongate.  

            Where plaintiff is a California resident for purposes of forum non conveniens, there is a strong presumption in favor of plaintiff’s choice of forum.  (Stangvik, supra, 54 Cal.3d at 754 (noting that factors underlying “strong presumption” test apply only to residents of forum state); NFL, supra, 216 Cal.App.4th at 917).  “Defendant’s residence is also a factor to be considered in the balance of convenience.  If a corporation is a defendant, the state of its incorporation and the place where its principal place of business is located is presumptively a convenient forum.”  (Stangvik, supra, 54 Cal.3d at 755.)  However, the presumption is rebuttable and may be overcome based on the private and public interest factors, which includes an analysis of the convenience of the parties and public policy considerations.  (Id. at 755-756.)         

            Plaintiff is a  California resident.  There is a strong presumption in favor of California as the proper forum. 

            Defendant Four Seasons Hotels Limited is a Canadian corporation.  (Keppy Dec., ¶3.)  No evidence is submitted that its principal place of business is in California.  Defendants JG Martell Group, Inc. and Martell Capital Group LC d/b/a Irongate are Delaware entities with their principal places of business located in California.  (Won Dec., ¶¶3 and 4.)  As such, California is presumptively a convenient forum for Defendants JG Martell Group, Inc. and Martell Capital Group LC d/b/a Irongate.  No such presumption of convenience is established as to Four Seasons Hotel Limited. 

            II.  Four Seasons Defendants fail to establish Mexico is a suitable forum

            “A forum is suitable if there is jurisdiction and no statute of limitations bar to hearing the case on the merits.”  (Chong v. Sup.Ct. (1997) 58 Cal.App.4th 1032, 1036-1037.)  A remedy must be available for the claim sued on.  (Stangvik, supra, 54 Cal.3d at 754.)  “It is well settled under California law that the moving parties satisfy their burden on the threshold suitability issue by stipulating to submit to the jurisdiction of the alternative forum and to waive any applicable statute of limitations.”  (Doe WHBE 3 v. Uber Technologies, Inc. (2024) 102 Cal.App.5^th 1135, 1144.)

            The mere fact that “the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum” “should ordinarily not be given conclusive or even substantial weight in the forum non coveniens inquiry.”  (Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 247.)  However, “if the remedy provided by the alternative forum is so clearly inadequate that it is no remedy at all, the unfavorable change in law may be given substantial weight.”  (Id.)  “In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative…Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the matter in dispute.”  (Id. at 254, fn 22.) 

            Four Seasons Defendants argue Plaintiff had six months from the filing of this motion to file an action in Mexico.  Defendants concede that the applicable limitations period under Mexican law is two years and the statute of limitations expired on December 20, 2024. 

            At this time, the statute of limitations under Mexican law has expired and it is not a suitable forum.  The Court must determine whether there is a suitable alternative forum for Plaintiff to refile should it grant the motion to dismiss based on forum non conveniens, not whether Plaintiff’s action was time barred at the time the motion was filed.  “The action will not be dismissed unless a suitable alternative forum is available to plaintiff.  Because of this factor, the suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subje4ct to jurisdiction in other states.”  (Boaz v. Boyle & Co. (1995) 40 Cal.App.4^th 700, 711 (quoting Judicial Council of Cal., com., 14 West's Ann.Code Civ.Proc. (1973 ed.) § 410.30, pp. 492–493.)  In determining whether a suitable forum exists, the Court’s focus is on “the amenability of the defendant to the alternative forum, not with the probable or even certain outcome on the merits in that forum.”  (Id.)  Based on the undisputed facts, any lawsuit for personal injury filed in Mexico would be barred by the statute of limitations at this time.

            On reply, Defendants argue it is Plaintiff’s burden to establish that his claims would be barred by the statute of limitations in Mexico.  Defendants argue this requires Plaintiff to negate any exceptions to a statute of limitations defense.  Defendants misunderstand the burden of proof.  It is Defendants’ burden to prove that Plaintiff’s action would not be barred by the statute of limitations.  If the facts establish that Plaintiff’s action would be barred by statute of limitations in Mexico, Defendants must establish some grounds to remove the bar, e.g. waiver or stipulation.  (Stangvik, supra, 54 Cal.3d at 751 (“defendant, as the moving party, bears the burden of proof’ to show the proposed alternative forum has jurisdiction and the action will not be barred by the statute of limitations).)  “The same will be true if the plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant's stipulation that he will not raise this defense in the second state.”  (Boaz, supra, 40 Cal.App.4^th at 712.)  Defendants have not satisfied their burden of establishing Mexico as a suitable alternative forum.   

            The Court rejects Plaintiff’s contention that Mexico is an unsuitable forum due to recently implemented constitutional reforms.  Plaintiff’s legal expert states that Mexico is an unsuitable forum because judges will now be elected by popular vote, and “it is widely beliefved that this reform will expose the judiciary to political pressure and undermine its impartiality.”  (Opposition, Camarena Dec., ¶5.)  The Court cannot find that such a system makes Mexico an unsuitable forum when California judges are also selected by popular vote, as well as appointed by the Governor.

            The aspects of the Mexican judicial system identified by Camarena do not support a finding that Mexico is an unsuitable forum.  General charges of corruption or statements that the court system is “sub par” are insufficient.  (Guimei v. General Electric Co. (2009) 172 Cal.App.4^th 689, 697.)  Plaintiff has also not identified any aspect of the Mexican judicial system that would be amount to a deprivation of due process, nor has Plaintiff presented overwhelming evidence that the Mexican legal system discriminates against particular groups.  (Aghaian v. Minassian (2015) 234 Cal.App.4^th 427, 435 (Iran was not suitable alternative forum where plaintiff presented overwhelming evidence that Iranian courts discriminate against women and non-Muslims and there was no evidence that such courts could provide due process.) 

            Four Seasons Defendants fail to establish that Mexico is a suitable forum.  Defendants’ Motion to Dismiss for Forum Conveniens is DENIED for failure to establish that Mexico is a suitable alternative forum.

            III.  JG Martell Group, Inc. and Martell Capital Group LC d/b/a Irongate fail to rebut the presumption that California is a convenient forum.  Four Seasons Defendants fail to establish that California is an inconvenient forum.

            “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.”  (Stangvik, supra, 54 Cal.3d at 751.) 

            “These factors ‘must be applied flexibly, without giving undue emphasis to any one element. A court should not decide that there are circumstances in which the doctrine will always apply or never apply. Otherwise, the flexibility of the doctrine would be threatened, and its application would be based on identification of a single factor rather than the balancing of several.’”  (Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1187  (stay of intentional interference action was proper based on forum non conveniens where evidence established Mexico was suitable forum, plaintiffs were not residents or citizens of the United States, all of the effect, harm and damages occurred in Mexico and required proof through third party witnesses in Mexico.) 

            Private Factors.  Four Seasons Defendants argue the incident occurred in Mexico and percipient witnesses will be located there, as well as the site of the accident itself.  Four Seasons Defendants argue security footage, photographs and cell phone date will likely be located in Mexico.  Four Seasons Defendants argue the bulk of evidence relating to the incident and its effects on Plaintiff are located in Mexico.  Defendants argue all witnesses in Mexico would therefore be outside of the Court’s subpoena power. Defendants argue the entire process would be costly. 

            Because the accident occurred at a hotel in Mexico, there will necessarily be a significant amount of evidence located in Mexico, including the site itself.  However, Defendants fail to establish that the location of the accident site in Mexico will necessarily make California an inconvenient or seriously inconvenient forum.  Assuming Defendants have to make site visits to Mexico, they will have to do so regardless of whether the litigation is in Mexico or California.  Defendants are not Mexican entities nor are their principal places of business in Mexico.  As such, it is not obvious why a site visit would be costlier if the litigation were to proceed in California. 

            Defendants fail to identify the specific witnesses located in Mexico or the number of such witnesses it believes are located in Mexico.  Defendants also fail to submit an estimate of the costs of obtaining evidence from Mexico or the impact of modern technology on the inconvenience or cost of doing so.  “[T]he same technological progress in communication and transportation that has increased the flow of commerce between the states and the need for jurisdiction over nonresidents, has simultaneously decreased the burdens inherent in defending a lawsuit in a foreign tribunal.”  (See e.g. Rice Growers Assn. v. First National Bank (1985) 167 Cal.App.3d 559, 580.) 

            Plaintiff also submits evidence that relevant evidence and witnesses to his damages claim are located in California.  Although the accident occurred in Mexico, Plaintiff was moved to California within 48 hours to receive treatment.  (Opposition, Quicksilver Dec., ¶4.)  Plaintiff continues to receive treatment in California and virtually all the witnesses relevant to Plaintiff’s medical damages and his suffering are located in California.  (Id.)  Plaintiff is employed in California and all evidence in support of his claim for lost earnings and earnings capacity are located in California.  (Id. at ¶5.)  Plaintiff’s traveling companions and the specific companion who was walking with him when he fell all live in the United States.  (Id. at ¶6.)  Based on Plaintiff’s declaration, a substantial number of witnesses and evidence are not located in Mexico and are largely located in California.  Unlike the plaintiff in Hahn, a tortious interference with contract case where “all of the effect, harm, and damages caused by defendants’ alleged conduct occurred in Mexico,” the effect of Defendants' alleged conduct was felt by Plaintiff in both Mexico and California.  (Hahn, supra, 194 Cal.App.4^th at 1196.) 

            Defendants’ reply argument that these witnesses can appear remotely applies equally to those witnesses purportedly located in Mexico.  Defendants also fail to establish that such witnesses could not be deposed through letters rogatory or other international means. 

            Defendants argue that Plaintiff’s residence does not control the outcome of this motion, citing Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4^th 753, 761.  Hansen stated that the plaintiff’s residence did not “control” the appropriate forum because the defendant moved to stay the action based on forum non conveniens, “in contrast to dismissing it.”  (Hansen, supra, 51 Cal.App.4^th at 761.)  The Court notes that Defendants’ Notice of Motion only seeks dismissal, not stay of the action.  Even if a stay were sought and Plaintiff’s California residence does not “control,” the Court must afford Plaintiff’s choice of forum strong deference because Plaintiff is a California resident.  The Court must also presume that California is a convenient forum because the Martell entities maintain their principal place of business in California. 

            Public factors.  The analysis of the public factors from Don Vita’s Motion to Dismiss applies equally here.  Plaintiff is a California resident.  JG Martell Group, Inc. and Martell Capital Group LC d/b/a Irongate maintain their principal places of business in California.  California has an “overriding state policy of assuring California residents an adequate form for the redress of grievances.”  (Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 856-858.)  California residents have a significant interest in a case involving a fellow resident, even if the injury occurred while that resident was on vacation in Mexico.        

            Weighed against this is Mexico’s interest in an accident that occurred on a property located in Mexico.  Plaintiff is alleging Defendants’ failure to adhere to the legal standards for building and maintenance in Mexico.  Mexico has a strong interest in ensuring that its building code standards are complied with and property located in its borders are safe.  While Mexico’s interests in building safety and code compliance can be vindicated and enforced through Mexico’s code enforcement system and lawsuits by its own residents, Mexico still has the strong interest in this lawsuit.  Plaintiff’s lawsuit seeks to regulate and affect conduct within Mexico’s borders, i.e. building safety and code compliance. 

            Plaintiff seeks punitive damages alternatively under Mexican law.  (FAC, ¶31.)  The applicable standard of care will be based in part on evidence of Mexican building codes and standards and what is done in Mexico.  However, California procedural law and its substantive law governing negligence and premises liability will still apply.  The mere fact that Plaintiff alleges he is seeking damages under Mexican law does not establish that he is entitlement to do so in a California court. 

            Four Seasons Defendants fail to establish Mexico as a suitable forum. In addition, weighing both the private and public interest factors, Four Season Defendants fail to establish that these factors “strongly” weigh in favor of finding California an inconvenient forum or a “seriously inconvenient forum.”  (NFL, supra, 216 Cal.App.4^th at 917 (“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” (emphasis added).)  Four Season Defendants’ Motion to Dismiss based on forum non conveniens is DENIED.