Judge: Laura A. Seigle, Case: 22STCV32540, Date: 2023-03-01 Tentative Ruling

Case Number: 22STCV32540    Hearing Date: March 1, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION RE INCONVENIENT FORUM

On October 4, 2022, Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. (“Plaintiffs”) filed this action alleging Plaintiff Elaine Adelia Hickey Herman developed mesothelioma as a result of exposure to asbestos.  On January 25, 2023, Defendants Colgate-Palmolive Company and Mary Kay, Inc. (collective, “Defendants”) filed motions to stay this case pursuant to the doctrine of forum non conveniens.  

            Defendants request judicial notice of (1) the complaint in this case; (2) a copy of Court’s docket; (3) Exhibits E through G attached to Declaration of Christopher D. Strunk (“Strunk Decl.”); (4) Mary Kay’s own asbestos docket.  Plaintiffs did not object. Therefore, the Court grants judicial notice of the documents in accordance with the Evidence Code section 452 subds. (c) and (d). 

I.          Defendants’ Objections

            Nos. 1, 2, 3, 4, 6, 7:  Overruled.

            No. 5:  The court did not rely on this evidence.

II.        Legal Standard

“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.)  When a court finds “in the interest of substantial justice an action should be heard in a forum outside this state,” it “shall stay or dismiss the action in whole or in part on any conditions that may be just.”  (Code Civ. Proc. § 410.30(a).)

Under the traditional forum non conveniens analysis, a court must first “determine whether a suitable alternative forum exists.”  (National Football League v. Fireman's Fund Insurance Co. (2013) 216 Cal.App.4th 902, 917.)  A suitable alternative forum is one where the defendant is subject to jurisdiction (or otherwise stipulates) and the statute of limitations would not bar the plaintiff's case in that forum.  (Stangvik, supra, 54 Cal.3d at 752, n.3.)  Generally the moving party must show that all defendants are subject to the other state’s jurisdiction.  (American Cemwood Corporation v. American Home Assurance Company (2001) 87 Cal.App.4th 431, 440.)  However, in cases with a large number of defendants, it may be “unreasonable to expect the moving defendant to prove all defendants are subject to jurisdiction in a particular alternative forum.”  (Hansen v. Owens-Corning Fiberglas Corporation (1996) 51 Cal.App.4th 753, 759.)  In that situation, staying the action “pending a determination that all defendants are subject to jurisdiction” in the alternative forum may be appropriate.  (Ibid.)

If there is a suitable alternative forum, the court proceeds to the next step of balancing “the private interests of the parties and the public interest in keeping the case in California.”  (National Football League, supra, 216 Cal.App.4th at 917.)  These factors must be balanced flexibly, and no single factor should be unduly emphasized.  (Stangvik, supra, 54 Cal. 3d at 753.)  An action should “be dismissed or stayed if a suitable alternative exists and the balance of private and public interest factors weigh in favor of the litigation proceeding in an alternative forum.  (Hansen v. Owen-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 758.)

“[T]he defendant, as the moving party, bears the burden of proof on a motion based on forum non conveniens.  (Stangvik, supra, 54 Cal.3d at 751.)  The court is not required to accept the allegations in the complaint as true, but rather, “must consider and review all the declarations, papers and data which are submitted in connection with the motion[.]”  (Hemmelgarn v. Boeing Co. (1980) 106 Cal. App. 3d 576, 587.)

III.       Suitable Alternative Forum

Defendants argue Connecticut is a suitable alternative forum because the Connecticut statute of limitations does not bar Plaintiffs’ claims, Defendants are subject to jurisdiction in Connecticut, and a majority of the defendants either consent to Connecticut jurisdiction or do not oppose transfer of the case.  (Strunk Decl. ¶¶ 11-13; Strunk Decl., Exs. C and D.)  Defendants argue that this case is therefore similar to Hansen.  Plaintiffs argue only five defendants expressly consented to jurisdiction in Connecticut and twelve others have either agreed not to object or have not opposed to the filing of Defendants’ motions.  (Opposition at p. 4.)   

Plaintiffs named 49 defendants.  Four have been dismissed, leaving 45 defendants.  For ten of those, Plaintiffs have not yet filed proofs of service of the complaint and summons.  Thirteen defendants stipulated or did not object to Connecticut’s jurisdiction:  L’Oreal USA Products, Inc.; L’Oreal USA, Inc.; Maybelline LLC; Coty Inc.; Noxell Corporation; American International Industries; Glamour Industries, Co.; Whittaker, Clark & Daniels, Inc.; SPX Corporation; Ford Motor Company; Avon Products, Inc.; Morse Tec LLC; Pep Boys; and Honeywell International Inc.  (Strunk Decl., Exs. C and D; Suppl. Strunk Decl., Ex. AA.)  Five others – Barretts Minerals Inc.; Mineral Technologies Inc.; Pfizer Inc.; Specialty Minerals Inc.; and Illinois Tool Works Inc. – stated they would not oppose the motion.  (Strunk Decl., Ex. D.)  Not opposing the motion is not equivalent to stipulating to Connecticut’s jurisdiction.  Other defendants filed statements that they would not contest Connecticut jurisdiction or stipulated to Connecticut’s jurisdiction, including Toyota Motor Sales, U.S.A., Inc.; Honda Motor Co., Inc.; Charles B. Chrystal Company; and BASF Catalysts LLC.

Following the reasoning of Hansen, in an asbestos case with a large number of defendants like this one, a court can stay a case to allow the other forum to determine whether all defendants are subject to that other forum’s jurisdiction.  Under that reasoning, Connecticut may be a suitable form.

IV.       Balancing of the Private and Public Interest Factors

“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.”  (Strangvik, supra, 54 Cal.3d at p. 751.)  “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.”  (Ibid.) 

The Judicial Council comments to Code of Civil Procedures section 410.30 list the following factors to be considered in this balancing:  (1) Where the residence or the principal place of business of each party is located; (2) Whether some or all of the parties regularly conduct business or other activities in this state; (3) Whether the situation, transaction or events out of which the action arose exists, occurred in, or had a substantial relationship to this state; (4) Whether any party would be substantially disadvantaged in having to try the action (a) in this state or (b) in the forum in which the moving party asserts it ought to be tried; (5) Whether any judgment entered in the action would be enforceable by process issued or other enforcement proceedings undertaken in this state; (6) Whether witnesses would be inconvenienced if the action were prosecuted (a) in this state or (b) in the forum in which the moving party asserts it ought to be prosecuted; (7)  The relative expense to the parties of maintaining the action (a) in this state and (b) in the state in which the moving party asserts the action ought to be prosecuted; (8) Whether a view of premises by the trier of fact will or might be necessary or helpful in deciding the case; (9) Whether prosecution of the action will or may place a burden on the courts of this state which is unfair, inequitable or disproportionate in view of the relationship of the parties or of the cause of action to this state; (10) Whether the parties participating in the action, other than those of their own volition, have a relationship to this state which imposes upon them an obligation to participate in judicial proceedings in the courts of this state; (11) The interest, if any, of this state in providing a forum for some or all of the parties to the action; (12) The interest, if any, of this state in regulating the situation or conduct involved; and (13) The avoidance of multiplicity of actions and inconsistent adjudications.  The court addresses each of these factors below.

            (1)  Plaintiffs live in Connecticut.  Plaintiffs argue that three defendants have their principal places of business in California (either headquartered or incorporated in California).  The locations of the other defendants are not addressed.  This factor weighs in favor of Connecticut.

            (2), (10)  Plaintiffs allege all of the defendants regularly conduct business in California.  Defendants do not contend otherwise.  Four defendants filed motions to quash service of summons for lack of personal jurisdiction, but not all of those motions are based on the lack of business in the state.  Most defendants did not file such a motion, suggesting they do regularly conduct business in California.  Plaintiff states three defendants did not regularly conduct business in Connecticut.  Defendants do not dispute that, but contend those three defendants are sham defendants.  Defendant did not submit evidence that they are sham defendants.  The defendants with their principal places of business in California, who directed their business activities to California, and who directed activities that are related to the claims here (i.e., the defendants over whom California has personal jurisdiction), have an obligation to participate in judicial proceedings in California.  These factors weighs in favor of California.

            (3)  Elaine Herman has lived in Connecticut for over 37 years.  She lived in California for 5-7 years.  Her claims are based on using the asbestos-containing products or being exposed to asbestos in both locations.  This factor weighs equally as the alleged exposure occurred in both locations.

            (4)  Plaintiffs could be substantially disadvantaged by having the action tried in Connecticut because that state does not have a preference statute.  If Plaintiffs prevail on their preference motion, this factor would weigh in favor of Plaintiffs’ favor because Elaine Herman would be more likely able to participate in a trial in California than in Connecticut and the litigation in California could be conducted more expeditiously.  While many witnesses are in Connecticut, Defendants would not be substantially disadvantaged by trying the action in California because often witnesses are amenable to testifying at depositions and trial remotely. 

            (5)  The parties did not address this factor.

            (6), (7)  Elaine Herman’s medical providers, medical records and treatment are in Connecticut.  Defendants argue that witnesses of her damages (apparently her family members) are in Connecticut.  Plaintiffs presented evidence that their fact witness, Dawn Lorena Fleming, stated that she would not be inconvenienced if she has to testify at trial in California.  (Fleming Decl. at ¶ 4.)  Plaintiffs and Fleming are willing to travel to California but the medical providers cannot be compelled to travel to California to testify.  The ease of access to sources of proof, the cost of obtaining witnesses, and obtaining the attendance of witnesses weigh in favor of Connecticut, although that weight is less these days when many out-of-state witnesses are willing to testify at depositions and trial remotely.  

            (8)  This factor is not relevant.

            (9), (11), (12)  Defendants argue California has an interest in avoiding undue congestion of its courts, and Connecticut has an interest in applying its own laws and regulations to corporations’ conduct within its state involving its citizens.  Plaintiffs argue much of Elaine Herman’s asbestos exposure occurred in California, California law will apply to this case, and California has a strong interest in punishing and deterring bad corporate conduct that harm its citizens.  These factors weighs equally.  Both states have an interest in providing a forum to Plaintiffs for harm occurring within each state, applying their laws to defendants that harmed Elaine Herman by exposing her to asbestos within each state, and in regulating asbestos exposure within the state.

            (13)  Plaintiffs argue that because some of the defendants are not subject to personal jurisdiction in Connecticut, there would need to be litigations in both California and Connecticut.  Defendants argues the California defendants (Jafra, Pep Boys, and LA Rubber) are sham defendants, but they did not present evidence of that assertion.  Defendants do not directly address this factor.  This factor weighs in favor of California.

Because the analysis depends in part on the outcome of the motion for preference, the court CONTINUES hearing on this motion to March 21, 2023 at 9 a.m.

The moving parties are ordered to give notice.