Judge Joel R Wohlfeil, Case 37-2022-00015643-CU-BC-CTL 2023-09-29 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2022-00015643-CU-BC-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 27, 2023

09/29/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Breach of Contract/Warranty Motion to Quash (Civil) 37-2022-00015643-CU-BC-CTL STOFF VS TORNEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Service of Summons, 07/18/2023

1. The Motion (ROA # 175) of Def'endant, Grupo Inmobiliario Niza, S.A. de C.V., a Mexico corporation, ('Defendant' or 'Grupo Niza') for an order to quash the service of summons served on Grupo Niza by Plaintiff JEFFREY STOFF ('Plaintiff'), is DENIED.

Defendant, on or before the last day to file a responsive pleading, may serve and file a notice of motion to quash service of the summons on the ground of lack of jurisdiction. Code Civ. Proc. 418.10(a).

When Defendant challenges that jurisdiction by bringing a motion to quash, the burden is on Plaintiff to prove the existence of jurisdiction by proving the facts requisite to an effective service. Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal. App. 4th 789, 793.

Plaintiff bears the burden of proof by a preponderance of the evidence to demonstrate Defendant has sufficient minimum contacts with the forum state to justify jurisdiction. DVI, Inc. v. Superior Court (2002) 104 Cal. App. 4th 1080, 1090.

Plaintiff must present facts demonstrating that the conduct of Defendant related to the claim is such as to constitute constitutionally cognizable minimum contacts. Id. at 1090, 1091.

'A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.' Code Civ. Proc. 410.10.

The exercise of jurisdiction over a nonresident Defendant comports with these Constitutions if Defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate traditional notions of fair play and substantial justice. Pavlovich v. Superior Court (2002) 29 Cal. 4th 262, 268.

In making this determination, the Court has identified two ways to establish personal jurisdiction via minimum contacts. Id. Personal jurisdiction may be either general or specific. Id. at 268, 269.

A nonresident Defendant may be subject to the general jurisdiction of the forum if Defendant's contacts in the forum state are substantial continuous and systematic. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445.

In such a case, it is not necessary that the specific cause of action alleged be connected with Calendar No.: Event ID: TENTATIVE RULINGS

2997535 CASE NUMBER: CASE TITLE: STOFF VS TORNEL [IMAGED] 37-2022-00015643-CU-BC-CTL Defendant's business relationship to the forum. Id. Such Defendant's contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction. Id. at 446.

Parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to the latter state's jurisdiction. Yu v. Signet Bank / Virginia (1999) 69 Cal. App. 4th 1377, 1387.

In this case, there is some evidence that Defendant Grupo Niza has substantial, continuous or systematic contacts with California. There is evidence that Grupo Niza is owned and operated by Defendant Miguel Angel Tornel, a California resident. There is evidence demonstrating that a large part of the business of Grupo Niza involves recruiting buyers in California for real estate projects in Mexico.

Defendant Torza Promotions, Inc. was a California company prior to dissolution, and maintained a bank account in California. There is evidence that Grupo Niza routinely used Torza Promotions as a conduit for money paid in the U. S. for the purchase of Mexican properties. In addition, there is evidence that Grupo Niza promoted and rented its Mexican properties to California residents via the Airbnb internet website.

If the event a nonresident Defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, it may be subject to the specific jurisdiction of the forum if Defendant has purposefully availed itself of forum benefits, and the controversy is related to or arises out of Defendant's contacts with the forum. Vons Companies, Inc. v. Seabest Foods, Inc., supra at 445.

The forum contacts necessary to establish specific jurisdiction involve a nonresident who has 'purposefully directed' activities at forum residents, or who has 'purposefully derived benefit' from forum activities, or 'purposefully availed' itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Id. at 446.

In this case, the evidence summarized above also applies in the context of specific jurisdiction. In other words, the conduct described above appears to have been directed at California residents generally but was also specifically directed and utilized with respect to Plaintiff in this action. There is evidence that Grupo Niza systematically and repeatedly interacted with Plaintiff in California through its owner and operator, Defendant Miguel Angel Tornel. This interaction involved negotiations for the purchase of real estate in Mexico. There is evidence that Plaintiff repeatedly paid money to Grupo Niza in California through Defendant Torza Promotions. This evidence demonstrates that Defendant Grupo Niza purposefully availed itself of forum benefits by recruiting Plaintiff as a real estate purchaser in California.

Thus, this controversy is related to or arises out of Defendant Grupo Niza's contacts with the forum.

_____ 2. The Motion (ROA # 178) of h Defendant, Grupo lnmobiliario Niza, S.A. de C.V., a Mexico corporation, ('Defendant' or 'Grupo Niza') for an order to disrniss or stay the action by Plaintiff JEFFREY STOFF ('Plaintiff'), is DENIED.

Plaintiff's evidentiary objections (ROA # 192) are SUSTAINED.

'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.' Code Civ. Proc. 410.30(a).

Forum non conveniens is an equitable doctrine invoking the discretionary power of the Court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be Calendar No.: Event ID: TENTATIVE RULINGS

2997535 CASE NUMBER: CASE TITLE: STOFF VS TORNEL [IMAGED] 37-2022-00015643-CU-BC-CTL 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, the Court must first determine whether the alternate forum is a 'suitable' place for trial. Id. 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. Id. 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. Id. The public interest factors include avoidance of overburdening the Court 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. Defendant, as the moving party, bears the burden of proof. Id. Ordinarily there is a strong presumption in favor of Plaintiff's choice of forum, but less deference is given to foreign Plaintiffs. National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal. App. 4th 902, 926.

Defendant's residence is also a factor to be considered in the convenience balance. Id. at 927.

There is an 'overriding state policy of assuring California residents an adequate forum for the redress of grievances.' Bechtel Corp. v. Industrial Indem. Co. (1978) 86 Cal. App. 3d 45, 51.

Suit in California may involve hardship to Defendant, but the obvious convenience to Plaintiff in bringing suit there, together with the clear interest of this state in Plaintiff's welfare will make this state an appropriate forum except in unusual circumstances. Thomson v. Continental Ins. Co. (1967) 66 Cal. 2d 738, 745.

'The instant case does not present such unusual circumstances. It is a typical suit on a contract - a transitory action.' Id. The opinion in Thomson v. Continental Ins. Co. (1967) 66 Cal. 2d 738 also states: 'The doctrine of forum non conveniens does not permit the dismissal of plaintiff's California action.

That doctrine is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state.... Forum non conveniens has only an extremely limited application to a case where, as here, the plaintiff is a bone fide resident of the forum state. As this court observed in Goodwine v. Superior Court, 63 Cal.2d 481, 485: 'A determination that a plaintiff is domiciled here would ordinarily preclude granting the defendant's motion for dismissal on the ground of forum non conveniens.' This limitation on the forum non conveniens doctrine reflects a state policy that California residents ought to be able to obtain redress for grievances in California courts, which are maintained by the state for their benefit .... This state is concerned with the welfare of California residents ... and has 'a decided interest in assuring that its citizens are not denied damages because of the inconvenience or expense of bringing suit in a distant jurisdiction.' (Cecere v. Ohringer Home Furniture Co. Div. of Tilmore Corp., 208 Pa. Super. 138.)' Id. at 742, 743 (most internal citations omitted).

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2997535 CASE NUMBER: CASE TITLE: STOFF VS TORNEL [IMAGED] 37-2022-00015643-CU-BC-CTL Defendant Grupo Niza argues a forum selection clause exists within a written contract mandating use of a Mexican court. However, this argument is not persuasive for three reasons.

First, the existence of this agreement is purportedly evidenced by documents attached to the declaration of Edward W. Freedman (ROA # 179), counsel for Defendant Grupo Niza. However, no exhibits are attached, even though the declaration references these exhibits.

Second, even assuming these documents were attached to the declaration, it does not appear that they bear Plaintiff's signature. There is evidence that Grupo Niza is owned and operated by Defendant Miguel Angel Tornel. However, Defendant Tornel testified that Plaintiff did not sign a contract because the negotiations were never finalized.

Third, a substantive analysis also supports rejection of this argument. Where there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal. App. 5th 438, 445. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. Id. The Court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. Id. The Court will refuse to enforce a forum-selection clause if this will bring about a result contrary to the public policy of the forum. Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal. App. 4th 1666, 1680.

To be enforceable, the selected jurisdiction must be suitable, available, and able to accomplish substantial justice. America Online, Inc. v. Superior Court (2001) 90 Cal. App. 4th 1, 12.

California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state's public policy. Id. Even assuming there was evidence of a signed agreement, the forum selection clause would require the Court to split this action. The contract action against Grupo Niza would be litigated in Mexico while the claim against the individual Defendants and the tort claims would continue in California. Splitting these intertwined and related claims creates the potential for inconsistent judgments. This makes the Mexican court effectively unsuitable and unable to accomplish substantial justice.

Regarding the traditional forum non conveniens analysis, Plaintiff and the two individual Defendants are residents of California. Defendant Torza Promotions, Inc. was also a California company prior to dissolution. Therefore, the doctrine of forum non conveniens does not permit the dismissal of Plaintiff's California action. There are no unusual circumstances in this case that would warrant a deviation from this rule. In addition, there is evidence that the underlying agreement was negotiated in California.

Witnesses and documents necessary for the adjudication of this action exist in both jurisdictions. The private and public interests do not necessitate Mexican jurisdiction.

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