Judge: Laura A. Seigle, Case: 23STCV18198, Date: 2024-01-19 Tentative Ruling
Case Number: 23STCV18198 Hearing Date: January 19, 2024 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR STAY
Plaintiffs
Paul Konarzewski and Joanne Konarzewski filed this action alleging Paul
Konarzewski developed mesothelioma as a result of exposure to asbestos in the products of Defendants Johnson & Johnson
and LTL Management LLC. Defendants filed a motion to stay this case pursuant to the doctrine of
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.) 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, supra, 51
Cal.App.4th at p. 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.)
Defendants argue Michigan is a suitable alternative forum because
its statute of limitations does not bar Plaintiffs’ claims and all of the
defendants consented to Michigan’s jurisdiction. (Opposition at pp.
10-11.) Defendants filed statements from
the eight other defendants stating they consent to Michigan’s
jurisdiction. (King Decl., Exs. E-J.) Defendants have shown Michigan is a suitable
alternative forum, which Plaintiffs do not contest. (Opposition at pp. 2-3.)
II. 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 Michigan. Defendants do not say where the ten
defendants are located and do not contend any are Michigan companies. Plaintiffs submit evidence about some of the
defendants. Defendant Safeway Inc. is a
Delaware company with its principal office in California. (Blumenfeld-James Decl., Ex. 3.) Defendant Metropolitan Life Insurance Company
is a New York company with its principal office in New York. (Id., Ex. 5.) Defendant Honeywell International Inc. is a
Delaware company with its principal office in North Carolina. (Id., Ex. 6.) Defendant Merck & Co., Inc. is a
California nonprofit mutual benefit corporation with its principal office in
Wyoming. (Id., Ex. 7.) Defendant American Stores Company, LLC is a
Delaware company with its principal office in Idaho. (Id., Ex. 8.) Defendant Morse Tec LLC is a Delaware company. Plaintiffs did not provide information about
its principal office. (Id., Ex.
9.) Defendant Hennessy Industries, LLC
is a Delaware company with its principal office in Tennessee. (Id., Ex. 10.) Defendant Schneider Electric USA, Inc. is a
Delaware company with its principal office in Massachusetts. (Id., Ex. 11.) Plaintiffs submitted a number of corporate
records for other J&J-related entities but not for Defendants Johnson &
Johnson and LTL Management LLC. (Id.,
Ex. 4.) Therefore, their location is
unknown. In sum, of the ten defendants,
one has a principal office in California, one is a California corporation, six
are formed and have their principal offices in other states, and Defendants are
unknown. None were formed in or have
principal offices in Michigan. This
factor weighs slightly in favor of Michigan because Plaintiffs live there, but
only slightly since no Defendant is located in Michigan and at least two are
located in California.
(2),
(10) Defendants do not provide evidence
of these factors. Plaintiffs attach some
California Secretary of State records showing California agents of service of
process for Safeway, Inc., Metropolitan Life Insurance Company, Honeywell
International, Merck & Co., Inc., American Stores Company, LLC, Hennessy
Industries, LLC, and Schneider Electric USA, Inc., suggesting these companies
do business in California. (Blumenfeld-James
Decl., Exs. 3, 5, 6, 7, 8, 10, 11.) This
factor weighs in favor of California.
(3)
Paul Konarzewski lived in Michigan from 1958-1984, and from 1991 to the
present. He lived in California from 1984
to 1991. (King Decl., Ex. C at p. 2.) His claims are based on using
asbestos-containing products in both Michigan and California. He claims he was first exposed to asbestos in
1958, and the asbestos exposure continued to the present. (King Decl., Ex. A at p. 94.) He was exposed to body or foot powder in
Michigan and California, asbestos while working at two jobs in Michigan, and
exposure via his mother’s employment in Michigan. (Id. at pp. 94-95.) This factor weighs equally as the alleged
exposure occurred in both locations.
(4) Defendants argue they will be disadvantaged
because many non-party witnesses and Paul Konarzewski’s doctors are in
Michigan, and Plaintiffs cannot travel to California. (Motion at p. 13.) Defendants will be disadvantaged by trying
the case in California because they cannot subpoena the Michigan-based
witnesses to attend a trial in California.
This disadvantage may be less these days when many out-of-state
witnesses are willing to testify at trial remotely. However, Defendants will not be able to
require those witnesses to testify at trial, whether in person or
remotely. If out-of-state witnesses do
not volunteer to testify at a California trial, Defendants’ only option will be
to use those witnesses’ deposition testimony at trial. Plaintiffs can testify remotely.
Plaintiffs
argue they would be substantially disadvantaged by having the action tried in Michigan
because they have filed for trial preference in California, and while Michigan
has a process for an expedited trial, it is discretionary. (Opposition at p. 5.) The California Supreme Court rejected the
conclusion that a plaintiff is substantially disadvantaged where the law of the
other jurisdiction is not as favorable to the plaintiff as California law. (Stangvik, supra, 54 Cal.3d at pp.
763-764.) “[T]he fact that an
alternative jurisdiction’s law is less favorable to a litigant than the law of
the forum should not be accorded any weight in deciding a motion for forum non
conveniens provided, however, that some remedy is afforded.” (Id. at p. 753 n.5.) The Supreme Court explained, “if substantial
weight is given to the fact that the law in the forum state is more favorable
to a plaintiff than in the foreign jurisdiction, the balance will ordinarily
favor denial of the motion, and substantial weight should be given to this
factor only if the alternative forum provides no remedy at all. (Id. at p. 764.) The Supreme Court concluded that the fact the
plaintiff would be disadvantaged by the law in the other jurisdiction “may not
be considered in the forum non conveniens balance.” (Ibid.) (See also Morris v. AGFA Corp. (2006) 144
Cal.App.4th 1452, 1468 n.8.) Based on Stangvik, the court cannot consider the fact
that Michigan does not have a preference statute comparable to California’s
statute, so long as some remedy is afforded.
The parties do not contend that Michigan affords no remedy at all, and indeed,
Plaintiffs can seek an expedited trial in Michigan.
Plaintiffs
also argue that they will be delayed if they have to file a case in
Michigan. (Opposition at p. 5.) Plaintiffs filed this case on August 2,
2023. If they file a new case in
Michigan, that case would be almost six months behind this case. However, according to the evidence presented
in connection with Plaintiffs’ motion for preference – that he was already in
hospice care in October 2023 and “that there is substantial medical doubt of
Mr. Konarzewski’s survival beyond six months from October 27, 2023” (Preference
Motion at p. 3; Garg Decl., ¶ 12) – Paul Konarzewski is not expected to live
past April 27, 2024. If the preference
motion were granted, the trial would start on May 13, 2024. Thus, whether he will survive through a lengthy
trial in either California or Michigan is uncertain.
In
sum, if the case is litigated in California the defendants face substantial
disadvantages in not being able to subpoena Plaintiffs’ witnesses to attend
trial in California. If the case is
litigated in Michigan, Plaintiffs face substantial disadvantages with a trial
date likely later than a California trial date (even not considering the
California preference statute), assuming Paul Konarzewski survives longer than
his expert opines he will. This factor
is neutral.
(5) This factor is neutral.
(6),
(7) Plaintiff’s medical providers and medical
records are in Michigan. (Motion at pp. 7-9.) Plaintiffs cannot 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 Michigan. Most
of the evidence is in Michigan or outside of California, given that most of the
parties are not residents of California.
(8)
This factor is not relevant.
(9), (11), (12) Defendants argue California has an interest
in avoiding undue congestion of its courts, and Michigan has an interest because
most of the exposure took place within Michigan involving a resident of the
state. Plaintiffs argue some of Plaintiff’s
exposure occurred in California, and California has a strong interest in
punishing and deterring bad corporate conduct that harms its citizens.
In Morris, the court analyzed
a similar scenario where the plaintiff had been exposed to the toxic product
for some years while in California but had been exposed for more years in another
state and resided in the other state, and where only two defendants were
California corporations. The court
concluded that while California may have an interest in regulating California
corporations that produce harmful products, successful litigation in the other
state “would have the same deterrent effect that a California court might
afford.” (Morris, supra, 144
Cal.App.4th at p. 1467.) Here, both
states have an interest in providing a forum to Plaintiffs for harm occurring
within each state, applying their laws to defendants that harmed Paul
Konarzewski by exposing him to asbestos within each state, and in regulating
asbestos exposure within the state. But the
California exposure occurred more than twenty years ago. Because Plaintiffs are current residents of Michigan
and have been for most of their lives, and because most of the years of
exposure occurred in Michigan, these factors weigh in favor of Michigan. The burden asbestos cases are placing on
California courts and the current backlog of trials in Los Angeles Superior
Court also weigh in favor of Michigan.
(13)
All Defendants have consented to jurisdiction in Michigan, so there is
no risk of multiple actions. This factor
is neutral.
Having
weighed the factors, the court concludes that on balance, in the interest of
substantial justice, this action should be heard in Michigan. Therefore, the court GRANTS the motion and
stays the action. The court sets a
status conference re stay for April 19, 2024 at 9 a.m. Five court days before the status conference,
the parties are to file a joint report regarding the status of any action in Michigan.
The motion
for preference is off calendar. The moving parties are ordered to give notice.