Judge: Laura A. Seigle, Case: 23STCV31322, Date: 2024-03-28 Tentative Ruling

Case Number: 23STCV31322    Hearing Date: March 28, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTIONS TO STAY

            On December 20, 2023, Plaintiffs William Sweet and Tammie Sweet filed this action alleging William Sweet developed mesothelioma as a result of exposure to asbestos.  Defendants Nissan North America, Inc. and Toyota Motor Sales U.S.A. Inc. filed motions 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.)

A.                 Suitable Alternative Forum

            Defendants argue Oregon is a suitable alternative forum because the Oregon statute of limitations does not bar Plaintiffs’ claims, most of the defendants are subject to jurisdiction in Oregon, and William Sweet’s exposure occurred in Oregon.  (Motion at p. 1.)

            Currently, twenty-four defendants remain in this case – 3M Company; Block Drug Company, Inc.; Chattem, Inc.; DAP, Inc.; Estee Lauder, Inc.; Genuine Parts Company; Harley Davidson, Inc.; Henry Company LLC; Himmel Management Co., LLC; Honeywell International, Inc.; Johnson & Johnson; Kaiser Gypsum Company; Kelly-Moore Paint Company, Inc.; LTL Management LLC; Morse Tec LLC; Nissan North America, Inc.; Pfizer, Inc.; Presperse Corporation; Presperse International Corp.; The Estee Lauder Companies, Inc.; The Hartz Mountain Corporation; The Pep Boys Manny Moe & Jack of California; Toyota Motor Sales U.S.A., Inc; Union Carbide Corporation; and Volkswagen Group of America, Inc.

            Five defendants filed joinders to this motion – 3M Company; Chattem, Inc; Honeywell International, Inc.; Union Carbide Corporation; and Volkswagen Group of America, Inc.  That means seventeen defendants have not agreed to jurisdiction in Oregon.  The fact that these defendants have not opposed the motion is not equivalent to stipulating to Oregon’s jurisdiction.

Defendants argue that most of the defendants are subject to Oregon’s jurisdiction, citing Plaintiffs’ complaint and responses to interrogatories stating William Sweet was exposed to asbestos in Oregon.  Exposure to a product in a state does not automatically give that state jurisdiction over a defendant.  A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’  [Citations.]”  (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.)  Defendants did not show for each defendant, or most of the defendants, that they purposefully availed themselves of Oregon’s benefits and the controversy arises out of or relates to each defendant’s contacts with Oregon.  Indeed, Defendants said nothing specific about seventeen of the defendants.

Defendants argue they do not have to show Oregon’s jurisdiction over all of the defendants, citing Hansen.  However, Hansen did not hold that when a moving party shows jurisdiction over only 30% of the defendants, the other jurisdiction is suitable for the other 70% of the defendants, or that the case should be stayed pending a determination about where jurisdiction is suitable for all the other defendants.  Also, this case with twenty-four defendants is categorically different from Hansen where there were 200 defendants.  (Hansen, supra, 51 Cal.App.4th at p. 759.)  It is not unreasonable to expect the moving defendant to prove that most of twenty-four defendants are subject to jurisdiction in Oregon.

            B.        Balancing of 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 these factors below.

            (1)-(2)  William Sweet lives in Oregon.  (Thai Decl., Ex. 2.)  He resided in Oregon, between 1973 through 2005 and 2014 to the present.  (Thai Decl., Ex. 3 at pp. 2-3, 7-8.)  He lived in California from 1971 to 1973.  (Id. at pp. 2-3.)  Seven of the twenty-four defendants consented to Oregon’s jurisdiction.  Defendants did not provide evidence that any defendants are incorporated in or have a principal place of business in Oregon, have any kind of facility or presence in Oregon, or do business in Oregon.  Defendants Toyota Motor Sales, USA, Inc., Henry Company LLC, The Pep Boys Manny Moe & Jack of California LLC, and Kelly-Moore Paint Company Inc. are California companies.  (Seitz Decl., Exs. D, F, G, H.)  Defendants Kaiser Gypsum, Kelly-Moore, and Union Carbide had facilities located in California.  (Id., Ex. A at p.69; B at p. 73, Ex. C.)  Regarding Plaintiffs’ location, this factor weighs in favor of Oregon.  Regarding the defendants’ locations and places of doing business, the factor weighs in favor of California.

            (3)  Plaintiffs allege exposure to asbestos in both Oregon and California, for a longer time in Oregon.  This factor weighs equally because Plaintiff was exposed in both locations.

            (4)-(5)  The parties did not present evidence of or argument about these factors.

            (6)  Defendant argues Plaintiffs, Sweet’s medical providers, and persons with knowledge of damages are located in Oregon.  (Motion at p. 4.)  The witnesses in Oregon would not be subject to trial subpoenas in California.  Depositions can be conducted remotely thereby lessening the inconvenience, and the parties can agree to remote trial testimony.  Based on the court’s experience handling hundreds of asbestos cases, the court has rarely seen parties depose treating physicians or have them testify at trial.  Medical records and Plaintiffs’ other records are produced in discovery via the document service provider, Lexitas, pursuant to the case management order.  The defendants’ witnesses are outside of Oregon.  This factor weighs slightly in favor of Oregon.

            (7)  Defendants did not present evidence of or argument about this factor.  The expense of prosecuting this action in California or in Oregon is likely to be comparable.  This factor is neutral.

            (8)  This factor is irrelevant.

            (9)-(12)  Defendants argue California has an interest in avoiding undue congestion of its courts and Oregon has an interest in applying its own laws and regulations to corporations’ conduct within its state involving it citizens.  (Motions at pp. 11-13.)  California has “little or no interest in litigation involving injuries incurred outside of California by non-residents.”  (Hansen, supra, 51 Cal.App.4th at p. 760.)  However, here the alleged harm also occurred in California while Plaintiff lived here.  Some of the defendants are California corporations, and California has an interest in regulating businesses incorporated in California.  There is no evidence that any defendant is incorporated, located, or doing business in Oregon.  While Oregon has more of an interest in protecting Plaintiff’s rights because she currently lives there, California has more of an interest in regulating at least some of the defendants’ activities.  Thus, this factor is neutral.

            (13)  Seven of the twenty-four defendants consented to personal jurisdiction in Oregon. Several defendants are incorporated or located in California.  Defendants did not provide any information about many of the defendants.  Moving the case to Oregon is likely to lead to multiple actions.  Thus, this factor weighs in favor of California.

            Because Defendant did not show Oregon is a suitable alternative forum for 70% of the defendants, and because California has an interest in regulating activities of and preventing damages caused by California businesses, the balance weighs in favor of California.

            Therefore, the motion is DENIED.  The moving party is to give notice.