Judge: Mark H. Epstein, Case: 24SMCV00884, Date: 2024-05-14 Tentative Ruling

Case Number: 24SMCV00884    Hearing Date: May 14, 2024    Dept: I

Plaintiff Italia Film International SAL (“plaintiff”) filed this breach of contract action against defendants Arclight Films International Pty Ltd., Arclight Films International Pty LLC, Gary Hamilton, and Ryan Hamilton (collectively “defendants”).  The case concerns plaintiff’s loan of $500,000 to defendants so they could secure director Phillip Noyce for the production of a film called Killer 10.  (Compl., ¶13.)  Defendants failed to pay back the loan per the contract terms and later, defendant Arclight Australia entered into a written guaranty agreement to repay the loan.  (Id. at ¶19.)  Currently before the court is specially appearing defendants’ motion to quash service of summons due to defective service and lack of personal jurisdiction.  They alternatively move to dismiss or stay the action based on forum non conveniens.  As the court clarifies later, not all of the moving defendants are proper for each motion.  Plaintiff opposes.  There are two Hamilton defendants, Gary and Ryan.  The court uses first names to avoid confusion; no disrespect is intended.

Defendants’ request for judicial notice of the Hague Convention and the information related to Australia and the United States is GRANTED.  (See Evid. Code, § 452, subd. (f).)  The information informs the court’s analysis on the motion to quash due to defective service.

Both parties filed evidentiary objections.  Plaintiff’s objections to the Ryan Hamilton declaration are DISREGARDED.  Most are made on the basis of relevance.  Any relevance objections are not necessary. By definition, if the proffered evidence is irrelevant then it will have no part in the court’s analysis.  On the other hand, if the evidence is relevant then the objection is not well taken.  This is not to say that the evidence in question is in fact relevant and material to the court’s analysis.  It is only to say that if it is discussed below, then by definition, the court finds that it is relevant.  If it is not discussed below, then it forms no dispositive part of the court’s reasoning, and the objection is moot.  The remaining objections are also OVERRULED.  Ryan is attesting as to facts within his personal knowledge and his views on his permanent residence, which is not a legal conclusion.

Defendants’ objections to the Vincenti declaration follow a similar pattern as plaintiff’s objections.  The court DISREGARDS the relevance objections.  Vincenti also authenticates the attached email chains because he attests that he is copied on all the emails and his name shows up in the address chain.  The court will also not sustain an objection simply because Vincenti failed to list the exact page number of the exhibit.  The evidence is minimal and the court has read it.  The best evidence rule objections have minimal merit where the authenticated emails are attached.  The court does not rely on Vincenti’s declaration for the substance of what was stated.

As for defendants’ objections to the Fowler declaration, the relevance objections are DISREGARDED.  The remaining objections are OVERRULED.  Fowler is able to attest as to actions taken by his office and things related to his representation of plaintiff, such as the content of proofs of service and the federal litigation.  Again, the best evidence rule objection is ultimately immaterial where the documents are attached for the court to review.

The court turns first to the motion to quash for defective service.  Only defendants Arclight Films International Pty Ltd (“Arclight Australia”) and Gary Hamilton (“Gary”) move to quash the service of summons due to defective service.  The motion is DENIED as unripe as to Arclight Australia.  It has not yet been served with the summons and complaint.  There is no proof of service on file with the court and plaintiff notes as much in opposition.  Should Arclight Australia eventually be served and should it believe service was ineffective, it may file such a motion at that time.  The court therefore addresses only whether Gary was properly served.

“A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.  (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048; Schering Corp. v. Superior Ct. (1975) 52 Cal.App.3d 737, 741; Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110; In re Abrams (1980) 108 Cal.App.3d 685, 693.)”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808–809, parallel citations omitted.)  “ ‘Appellant was under no duty to act upon a defectively served summons.  The requirement of notice “is not satisfied by actual knowledge without notification conforming to the statutory requirements” [citation]; it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.  [Citations.]’ ”  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466–1467, citing Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251 with approval.)

The proof of service on file indicates that Gary was served via substitute service at an address in Beverly Hills.  Gary argues that he was not served in compliance with the Hague Convention and so service was defective.  He points out that he is an Australian citizen who currently resides in and intends to reside in Australia indefinitely.  (Gary Decl., ¶7.)  Gary attests, among other things, that he is not a United States citizen, is not registered to vote here, most of his personal and real property is in Australia, his family resides there and his children attend school there, and his bank and brokerage accounts are in Australia.  (Id. at ¶¶8-9.)

The Hague Convention applies to service of process abroad. “The Convention is ‘a multilateral treaty that was formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law . . . [and] was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.’  (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 698.)”  (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 135, parallel citations omitted.)  The United States is a signatory. (Ibid.)

Plaintiff contends that the Hague Convention does not apply because international service was not required.  Gary, it argues, works in an office in Beverly Hills and he was served via substitute service at that office.  It points out that Gary was personally served at the Beverly Hills office in January 2024 in relation to a dismissed federal action, Gary is the CEO of AFI Media, a California corporation that wholly owns Arclight Australia, he is AFI Media’s agent for service of process at the Beverly Hills office, the Beverly Hills office is identified as one of Arclight Australia’s offices, and the Arclight Australia employee who accepted the documents did so for Gary.  (Fowler Decl., Exhs. B-E, G.)  Plaintiff contends that foreign service therefore was not required and substitute service was perfected according to California law.

It is plaintiff’s burden to establish that service was proper.  “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant.  (§ 410.50.)  When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.  (Taylor–Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 110; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211; Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440, parallel citations and internal footnote omitted.)

Plaintiff’s evidence establishes that Gary owns businesses with a physical presence in California and he is listed as the agent for service of process at a particular business address.  (Fowler Decl., Exhs. A, C-F.)  The evidence further establishes that Gary is sometimes in California.  (Id. at Exh. B.)  But the court still has questions.  The court is confident that if Gary is listed as the agent for service of process for an entity registered to do business here, and the address given is a California address, he can be served here without regard to the Hague Convention in that capacity.  That is, Hague service would not be needed to obtain jurisdiction over that entity.  By registering to do business here, one requirement is that an agent for service be designated.  The entity doing business has, to that extent, voluntarily agreed to waive Hague service.  But that does not mean that Gary can be served here personally through substituted service.  (Gary could be served here by personal service, though.  “Gotcha” jurisdiction is alive and well.  It is just that he was not served personally in the sense of placing the summons in his hand.)

The court looks to the case Lebel v. Mai (2012) 210 Cal.App.4th 1154 for guidance.  There, the court held that the motion to quash was properly granted because service on the individual defendant did not comply with the Hague Convention.  The court made some important observations that inform the decision here.  First, substitute service on the individual defendant Mai was improper because it was “undisputed plaintiff knew defendant was residing in England, temporarily or otherwise.”  (Id. at p. 1159.)  Mai had sent plaintiff a letter with his new international address and phone number.  (Ibid.)  Further, the evidence produced on the motion to quash established that Mai was a resident of England at the time service was attempted.  “There was no evidence presented that defendant was other than a resident of England at the time service was attempted in the fall of 2011.  Accordingly, plaintiff was required to show that service of process on defendant comported with the Hague Convention regarding service on an individual in a foreign country, or a proper basis for why the Hague Convention did not apply.”  (Id. at p. 1160, internal citations omitted.)  Plaintiff there argued that the Hague Convention did not apply because, by its terms, it does not apply where the foreign address is unknown.  The court rejected that argument, noting that plaintiff was required to exercise reasonable diligence in determining Mai’s address in England.  “Plaintiff contends there is no requirement to make even a minimal inquiry as to the address of a party residing abroad before resorting to domestic methods of service.  Plaintiff argues, in effect, that if a foreign address is unknown, a party may simply disregard the Hague Convention and attempt service in any manner prescribed by state law.  We disagree. . . [¶]  Here, there was no evidence plaintiff made any effort to inquire about defendant's residential, business, or other mailing address in England, despite admittedly having defendant's personal e-mail address and overseas telephone number.”  (Id. at pp. 1161-1162, emphasis by Lebel court.)  The court held that substitute service on Mai at an address in Granada Hills was therefore improper where plaintiff had knowledge that Mai lived abroad.  (Id. at p. 1164.)  Of course, here the situation is somewhat different.  Plaintiff does not argue that it did not know Gary’s Australia address.  But what the court does not know is the extent that plaintiff was aware that Gary was an Australia resident and not a California resident to begin with.  It is implicit, given Lebel’s logic, that where the plaintiff believes that the defendant is a California resident, California service will be appropriate and the Hague Convention will not apply.  But while Gary has submitted evidence that he contends shows he is not a California resident, that is not dispositive.  Unlike citizenship, which is more limited, a human can have multiple residences.  (A person can also be a citizen of more than one country.)

The facts in Lebel are different from those presented here, though.  Plaintiff had reason to believe that Gary had a presence in California that justified service in accordance with California law.  Not only was he engaged in business in California, he was registered as the agent for service of process here.  Further, the letterhead on the Written Guarantee listed a California address.  Gary attended a film festival in California and invited Vincenti to his home for a Arclight-related cocktail party.  There is no evidence, either in the opposing or moving papers, that Gary ever represented that he resided abroad to defendant.  Notably, the plaintiff in Lebel had knowledge of Mai’s foreign residence yet undertook no reasonable diligence to ascertain his addresses in England.  In contrast, here plaintiff has knowledge of Gary’s California business and residential addresses and he was served via substitute service at one of them.  Gary was also personally served at that same address previously in relation to another case.  (Fowler Decl., Exh. B.)  That service attempt was on January 23, 2024 and the instant substitute service attempt was on March 4, 2024.  Gary does not attest that he was in California temporarily in January, or that he was residing in Australia as of March 4.  He presents no evidence indicating that plaintiff knew or should have known that Gary’s residential, business, or other mailing addresses were in Australia, as opposed to California.  Plaintiff also argues that the Hague Convention does not apply according to its terms.  After all, Article I states that it applies in cases “where there is occasion to transmit a judicial or extrajudicial document for service abroad.”  As to the latter point, the court disagrees.  Unlike personal service, substituted service requires handing the summons to a person other than the defendant and mailing the document to the defendant.  It is the mailing that could trigger the Hague Convention.  The court understands the argument that the mailing can, under California law, be made to the same address as the substituted service, but the court is not as confident that this will work where the address is not believed to be the defendant’s actual residence or principal place of employment, and there is not sufficient evidence that the address at issue here was either.

The court emphasizes that it does not disagree that Gary has shown that his presence in California is always temporary; the question is whether plaintiff knew that such that plaintiff was on notice that service in Australia would or could be required. 

Thus, plaintiff has established at least an argument that the reliance on substitute service was potentially proper, given plaintiff’s contention that he believed that Gary’s residential and business addresses were in California.  With this information, it would not necessarily be required that plaintiff transmit the documents internationally to serve Gary.  (Yamaha Motor Co., Ltd. v. Superior Court (2009) 174 Cal.App.4th 264, 270 [service on a foreign corporation by serving a domestic subsidiary as its agent was sufficient and Hague Convention did not apply].)  “In interpreting the phrase ‘occasion to transmit,’ the United States Supreme Court stated: ‘If the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.’  (Id. at p. 700.)  Thus, service of process is governed by the Hague Service Convention and, to the extent not inconsistent with the Convention, by the Code of Civil Procedure.  (§ 413.10, subd. (c); Volkswagenwerk, supra, at pp. 699, 670; see also Brockmeyer v. May (9th Cir. 2004) 383 F.3d 798, 803–804.)”  (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1064–1065, parallel citations omitted.)  Thus, the motion to quash based on failure to follow the Hague Convention may require additional briefing or evidence.  However, if the court were required to rule now, the court would deny the motion on the ground that plaintiff has established a good faith belief that Gary was a California resident (even if that belief was in error), and thus no international transmittal of the document was required.  Under Volkswagenwerk Aktiensgesllschaft v. Schlunk (1988) 486 U.S. 694, where service on a domestic agent is sufficient, the Hague Convention does not apply.  And that would depend on whether the plaintiff has reason to know that the domestic address is not proper, as was the case in Lebel.

The court next turns to personal jurisdiction.  Both Arclight Australia and Gary bring this motion.  Again, Arclight Australia has not been served and so the motion remains premature.  The court does not address arguments on its behalf.  Arclight Australia’s motion is therefore DENIED as unripe.  Gary’s motion, however, is properly before the court.

California courts “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”  (Code of Civ. Proc., § 410.10.)  “The federal Constitution permits a state to exercise jurisdiction over a nonresident defendant if the defendant has sufficient ‘minimum contacts’ with the forum such that ‘maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”  [Citations.]’ ”  (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1089-1090, quoting International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.)  Courts recognize two types of personal jurisdiction: general and specific.  (Goodyear Dunlop Tires Operations, S.A., et al., v. Brown, et al. (2011) 564 U.S. 915, 919.) If a defendant contends he or she lacks minimum contacts with California, he or she may file a motion to quash service of summons on the basis of lack of personal jurisdiction.  (Code of Civ. Proc., § 418.10, subd. (a).)  Although much of the jurisdiction jurisprudence was established in deciding whether one state had jurisdiction over the citizens of another state, the law applies to entities foreign to the United States as well.

“First, when jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction.”  (Shearer v. Superior Court (1977) 70 Cal.App.3d 424, 430.)  When a defendant challenges “personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction.”  (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210; see also Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.)  If the plaintiff meets its burden, then “it becomes defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (ViaView, supra, 1 Cal.App.3d at p. 210.)

Although plaintiff does not really address general jurisdiction over Gary, the court notes that Gary seems to have substantial contacts generally with California.  Indeed, it appears that he resides here for some of the year and owns property here.  The court cannot say, from the papers before it, whether there is definitively no general jurisdiction.  If there is, of course, then specific jurisdiction need not be shown.  But if there is no general jurisdiction, then the question will turn on whether there are sufficient minimum contacts between Gary and California to establish jurisdiction over him for this case.

To establish specific jurisdiction, a plaintiff’s cause of action must arise out of defendant’s in-state activities.  (Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773, 1781.)  Specific jurisdiction arises when “1) the defendant has purposefully availed himself of the privilege of conducting activities in California, thereby invoking the benefits and protections of its laws; 2) the claim arises out of the defendant's California-related activity; and 3) the exercise of jurisdiction would be fair and reasonable and would comport with notions of fair play and substantial justice.”  (F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 796, internal citations omitted.)  The plaintiff must satisfy the first two prongs of the test for the burden to shift to the defendant on the third prong.  (Gilmore Bank v. AsiaTrust New Zealand Ltd. (2014) 223 Cal.App.4th 1558, 1568.)

The court first looks at purposeful availment.  “For purposes of the purposeful availment prong, the United States Supreme Court has described the forum contacts necessary to establish specific jurisdiction as involving variously a nonresident who has purposefully directed his or her activities at forum residents, or who has purposefully derived benefit from forum activities, or purposefully avail[ed himself or herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, or deliberately has engaged in significant activities with a State or has created continuing obligations between himself and residents of the forum [citation].  (Vons, supra, 14 Cal.4th at p. 446, italics added.)  This disjunctive language, along with the Supreme Court's rejection of mechanical or talismanic formulas (id. at pp. 450, 460), suggests that the above formulations describe alternative, but not mutually exclusive, tests for purposeful availment.”  (Gilmore, supra, 223 Cal.App.4th at p. 1568, emphasis by Gilmore court, internal quotations omitted.)

Plaintiff’s purposeful availment argument focuses  on the following facts: (1) an Arclight Australia employee based in California, Ryan Hamilton, negotiated an underlying agreement, called a Development Interest Agreement (“DIA”), and the $500,000 loan; (2) Gary and plaintiff’s president finalized the DIA in Santa Monica and both Gary and Ryan made promises on behalf of Arclight Australia at that time and thereafter; (3) Ryan worked with plaintiff’s representative regarding performance of the underlying agreement and plaintiff wired some of the money to a California corporation at a California bank; (4) plaintiff’s president met with the director of the underlying film and recipient of the loan, Phillip Noyce, in Los Angeles; (5) the Written Guarantee identifies Arclight Australia’s location as Beverly Hills, which matches Gary’s statements to plaintiff’s president and Gary’s in-state presence; and (6) subsequent oral modifications of the Written Guarantee occurred in Santa Monica.

Most of these focus on Arclight Australia’s, not Gary’s, in-state activities. Ryan’s negotiations and work, Arclight Australia’s business address, plaintiff’s act of wiring money to a California corporation at a California bank, and plaintiff’s meeting with Noyce are irrelevant to Gary’s activities in California.  Arclight Australia’s acts cannot be attributed to Gary as a basis for jurisdiction against him (though his contacts can be a basis for jurisdiction against Arclight Australia).  The same is true of Ryan and Noyce.  “ ‘The purposeful availment inquiry . . . focuses on the defendant's intentionality.  [Citation.]  This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court's jurisdiction based on’ his contacts with the forum.  (U.S. v. Swiss American Bank, Ltd. (1st Cir.2001) 274 F.3d 610, 623–624.)”  (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.)

However, plaintiff presents evidence that the oral modifications of the Written Guarantee were made by Gary in California.  “Subsequent oral modifications of the written agreements between the parties were made at AFM events in California when the parties met.  This includes the final oral modification, which occurred in November 2022.”  (Vincenti Decl., ¶¶13-14, Exh, H [late 2022 email chain regarding various investments, including Killer 10, and Gary’s request that Vincenti discuss these issues with him at a film festival in Santa Monica].)  Gary disputes plaintiff’s characterization of the film festival discussions.  “While I attended the Film Market, my presence there had nothing to do with the $500,000 loan made by Italia Film to produce Killer 10, or Arclight’s Written Guarantee.  Any discussion about Killer 10 was by happenstance or as an aside having nothing to do with my attendance of the festival.  No negotiations or agreement(s) were entered into by Arclight at this time.”  (Gary Decl., ¶21.)  But regardless of the characterization, the point is that there were discussions held in California.  Notably, there is corroborating evidence that the parties met in California at the festival with the intent to discuss issues related to Killer 10 and other movies.  (Vincenti Decl., Exh. 10.)

This is sufficient to establish purposeful availment because these discussions are alleged to be fraudulent on Gary’s part.  “ ‘A state has a special interest in exercising jurisdiction over those who commit tortious acts within its territory.  Therefore, it is reasonable that a state should exercise jurisdiction over those who commit or cause to be committed in the state what is claimed to be a tortious act.’  (Kaiser Aetna v. Deal (1978) 86 Cal.App.3d 896, 901.)  Jurisdiction is proper over a nonresident defendant who, while personally present in California, makes representations or nondisclosures to the plaintiff which constitute the gravamen of the action.  (Ibid.)  ‘If a defendant commits an act or omission outside the forum state with the intent to cause a tortious effect within the state, the state may exercise jurisdiction over the defendant as to any cause of action arising from the effects.  The intent to cause tortious injury within the state when the tort actually occurs is generally a sufficient basis, without more, for the exercise of in personam jurisdiction.  “The act may have been done with the intention of causing effects in the state.  If so, the state may exercise the same judicial jurisdiction over the actor, or over the one who caused the act to be done, as to causes of action arising from these effects as it could have exercised if these effects had resulted from an act done within its territory.”  [Citation.]’  (Id., at p. 902.)”  (Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 113; see also, Doe v. Damron (2021) 70 Cal.App.5th 684 [tortious activities in California by nonresident defendant against nonresident plaintiff sufficient to establish jurisdiction, even if tort consisted of a single, brief visit].)  Even if the purpose of the trip was not to engage in particular conversations, if those conversations nonetheless occurred, it will be sufficient.

Notably, Gary’s declaration does not deny that discussions took place at the film festival; he only takes issue with whether the discussion was planned.  Nor does he deny that the promises were false.  “In the instant case appellant has made a compelling showing that, while in California, Messinger made fraudulent misrepresentations and nondisclosures which induced her to execute the buy/sell, employment and settlement agreements. Messinger's declaration does not deny such misrepresentations and nondisclosures, but instead states that any and all dealings with appellant and Bio–Health were carried out exclusively in his capacity as an officer of TotalMed.  There is no question that the minimum contacts test was met and personal jurisdiction over him was acquired by virtue of his tortious acts within California purposely directed at appellant.”  (Taylor-Rush, supra, 217 Cal.App.3d at p. 114, emphasis by Taylor-Rush court.)  At this juncture, that could be enough to establish purposeful availment.

If there is a purposeful availment, then plaintiff must also establish a substantial nexus between those activities and the cause of action asserted.  “[T]here must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.’  Goodyear, 564 U.S., at 919, 131 S.Ct. 2846 (internal quotation marks and brackets omitted).”  (Bristol-Myers, supra, 137 S.Ct. at p. 1780.)  “ ‘A claim need not arise directly from the defendant's forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction.  Rather, as long as the claim bears a substantial connection to the nonresident's forum contacts, the exercise of specific jurisdiction is appropriate.’  (Id. at p. 452.)  ‘[F]or the purpose of establishing jurisdiction the intensity of forum contacts and the connection of the claim to those contacts are inversely related. . . .  “[A]s the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts, and fairness is assured by limiting the circumstances under which the plaintiff can compel him to appear and defend.” ’  (Ibid., citation omitted.)”  (Greenwell v. Auto-Owners Ins. Co. (2015) 233 Cal.App.4th 783, 797, citing Vons, supra, 14 Cal.4th 434, parallel citations omitted.)

Here, the showing has at least arguably been made. The oral modifications form at least a partial basis of each cause of action.  (Compl., ¶¶30, 39, 43, 50.)  If this prong has been established, then the burden shifts to Gary on the issue of fair play and substantial justice.

“[M]inimum requirements inherent in the concept of ‘fair play and substantial justice’ may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities.  World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S., at 292, 100 S.Ct., at 564; see also Restatement (Second) of Conflict of Laws §§ 36–37 (1971).”  (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477–478.)   “We have previously explained that the determination of the reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors. A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief.  It must also weigh in its determination ‘the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.’ World-Wide Volkswagen, 444 U.S., at 292, 100 S.Ct., at 564 (citations omitted).”  (Asahi Metal Industry Co., Ltd. v. Superior Court (1987) 480 U.S. 102, 113.)  “A determination of reasonableness rests upon a balancing of interests: the relative inconvenience to defendant of having to defend an action in a foreign state, the interest of plaintiff in suing locally, and the interrelated interest the state has in assuming jurisdiction.  (Buckeye Boiler Co. v. Superior Court, supra, 71 Cal.2d at p. 899.)  The factors involved in the balancing process include the following: ‘the relative availability of evidence and the burden of defense and prosecution in one place rather than another; the interest of a state in providing a forum for its residents or regulating the business involved; the ease of access to an alternative forum; the avoidance of a multiplicity of suits and conflicting adjudications; and the extent to which the cause of action arose out of defendant's local activities.’  (Cornelison v. Chaney, supra, 16 Cal.3d at p. 151; Core–Vent Corp. v. Nobel Industries AB, supra, 11 F.3d 1482, 1487–1488; Panavision Intern., L.P. v. Toeppen, supra, 141 F.3d 1316.)”  (Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 591, parallel citations omitted.)

Gary argues that the burden on him to litigate in California will be high and financially burdensome.  (Gary Decl., ¶24.)  His only showing is related to financial burden and business interruption.  The showing is not the strongest, but the court must be cautious here.  “Courts furthermore must exercise ‘ “[g]reat care and reserve . . . when extending our notions of personal jurisdiction into the international field.’  (Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 115.)  This principle requires ‘a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case, and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff or the forum State.’  (Ibid.)”  (Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 393, parallel citations omitted.)

The court is not convinced that exercising jurisdiction over Gary for a handful of conversations in California is fair or reasonable.  He is located in Australia and seems to have a temporary presence in California related to certain business needs only.  Even with technological advances, the financial drain of having to litigate in California and appear at least for trial is a serious concern.  The fact that plaintiff’s principal is willing to litigate in California even though he is from Lebanon is not convincing.  Plaintiff is an alien as well and California’s interest in enforcement of the contract seems slight.  (See Asahi Metal, supra, 480 U.S. at p. 116 [“Considering the international context, the heavy burden on the alien defendant, and the slight interests of the plaintiff and the forum State, the exercise of personal jurisdiction by a California court over Asahi in this instance would be unreasonable and unfair.”].)  Thus, the court is of the view that Gary has made a strong showing.

At the end of the day, the court will allow jurisdictional discovery.  That discovery can go to both general and specific jurisdiction.  It can go the fair play and substantial justice as well as purposeful availment.  The court will discuss with the parties the timing for supplemental papers.

Finally, the court turns of the forum non conveniens motion.  “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.  (Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 609.)”  (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751, parallel citations omitted.)  There is a two-part test for determining whether such a motion should be granted. “In determining whether to grant a motion based on forum non conveniens, a court mus first determine whether the alternate forum is a ‘suitable’ place for trial.  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.”  (Ibid.)  “The defendant, as the moving party, bears the burden of proof on a motion based on forum non conveniens.  (Stangvik, supra, 54 Cal.3d at p. 751; Animal Film, LLC v. D.E.J. Productions, Inc., supra, 193 Cal.App.4that p. 472.)  It is the trial court's duty to weigh and interpret evidence and draw reasonable inferences therefrom.  (Guimei, supra, 172 Cal.App.4th at p. 698.)”  (National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal.App.4th 902, 918, parallel citations omitted.)  “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, subd. (a).)

The briefing on the FNC motion is incomplete.  If the court needs to reach the FNC motion, it will order further briefing on both factors.  The parties will need to address whether Australia is a proper forum that will accept jurisdiction of this case.  This includes jurisdiction of the contract claims (regardless of whether the laws of Australia are favorable) and whether there are statute of limitations issues.  The court also needs to know if defendants will stipulate to jurisdiction in Australia (the court assumes yes, but notes there is at least one California entity among the defendants).  “An alternative forum is suitable if it has jurisdiction and the action in that forum will not be barred by the statute of limitations.  (Morris v. AGFA Corp., supra, 144 Cal.App.4th at p. 1464.)  It bears emphasis that ‘[i]t is sufficient that the action can be brought, although not necessarily won, in the suitable alternative forum.’  (Ibid.; Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, 683.)  That the law is less favorable to the plaintiffs in the alternative forum, or that recovery would be more difficult if not impossible, is irrelevant to the determination whether the forum is suitable unless ‘the alternative forum provides no remedy at all.’  (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 764; Roman, supra, at p. 683; Boaz v. Boyle & Co., supra, 40 Cal.App.4th at p. 710.)”  (Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696, parallel citations omitted.)

On the private interest factors, the court requires better evidence on things like “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.”  (Stangvik, supra, 54 Cal.3d at p. 751.)  As an aside, the court notes that Ryan need not establish that California is a “seriously inconvenient” forum.  That standard does not apply to a nonresident plaintiff’s choice of forum, and here, plaintiff is from Lebanon.  (See Fox Factory, Inc. v. Superior Court (2017) 11 Cal.App.5th 197, 206.) Plaintiff’s choice of California is only entitled to due deference.  The court also notes that while choice of law is a factor in the forum non conveniens analysis, it is not identical to the governmental interest test.  The court also notes that the forum non conveniens motion can be made even if there is general jurisdiction.  (Baltimore Football Club, Inc. v. Superior Court (1985) 171 Cal.App.3d 352.)  Although the court will defer ruling on this aspect of the motion pending the outcome of the jurisdictional motion, the court notes that defendant makes a reasonably strong showing that California has only a slight interest (if that) in litigating this case between parties of foreign countries.