Judge: Martha K. Gooding, Case: 22-001296308, Date: 2023-07-20 Tentative Ruling

1) Motion to Quash Service of Summons

 

2) Case Management Conference

 

Defendant Boys & Girls Club of Central New Mexico’s (“Defendant”) motion to quash service of summons or, alternatively, dismiss or stay the case based on forum non conveniens is DENIED.

 

In this matter, Plaintiff (currently age 46) alleges that starting from age 12, he was sexually abused, molested and raped by Defendant Yannoni (as well as others) when he was a member of moving Defendant, the Boys & Girls Club of Central New Mexico (“Defendant”).

 

This matter originally was heard on June 5, 2023, and it was continued for supplemental briefing per the Court’s 6/12/23 Minute Order.  The Court has now considered the additional briefs.   

 

Service of Process

 

Defendant moves to quash service of summons first by arguing that it was never properly served with the summons and complaint.

 

However, after the motion was filed Plaintiff filed a proof of personal service of the summons and complaint on Defendant. Defendant does not argue in Reply that the personal service is defective.  As a result, it appears Defendant has abandoned the argument and that proper service has been effectuated.

 

Personal Jurisdiction

 

Defendant next argues that service of summons should be quashed because it lacks sufficient contacts for the Court to exercise either general or specific jurisdiction over it.

 

A nonresident defendant may not be called upon to defend in a foreign forum unless he or she has minimal contacts with that state to exercise power over that party. See Hensa v. Denckla (1958) 357 U.S. 235, 251.

 

The plaintiff bears the burden of proving a nonresident defendant has sufficient contacts with the forum state to support personal jurisdiction. See, Aquila, Inc. v. Superior Court (2007) 148 Cal. App. 4th 556, 570.  If the plaintiff establishes the defendant has minimum contacts with the forum state, the burden shifts to the defendant to demonstrate the exercise of jurisdiction would be unreasonable.  Stone v. Texas (1999) 76 Cal. App. 4th 1043, 1048.

 

Personal jurisdiction may be general or specific.

 

A nonresident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous, and systematic. See Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 445. 

 

Here, the Court finds that there is no basis to assert general jurisdiction.  Plaintiff’s claims center around just three separate trips to Disneyland.  Defendant is a New Mexico-based nonprofit with its principal place of business in Albuquerque, New Mexico. The Club does not conduct business in California and never has. (Wilson Decl. ¶ 4.) The Club does not operate any programs in California and never has. (Wilson Decl. ¶ 4.)

 

The Court does find, however, that specific jurisdiction exists.

 

A nonresident defendant may be subject to specific jurisdiction if: (1) the defendant has purposefully availed himself or herself of forum benefits, and (2) the controversy is related to or arises out of the defendant’s contacts with the forum. See Vons Companies Inc., supra, 14 Cal. 4th 434 at 446, citing Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-73.  The assertion of jurisdiction over the defendant must also be reasonable – that is, it must comport with fair play and substantial justice.  Id. at 477-78.  Discussing Burger King, the California Supreme Court in Vons explained that a state may exercise specific jurisdiction over a nonresident who purposefully avails himself or herself of the forum’s benefits because the state has a manifest interest in providing its residents with a forum for redressing injuries inflicted by out-of-state actors, and where individuals derive economic benefit from interstate activities it would be unfair to allow them to avoid having to account in other states for the consequences that arise from such activities. See, Vons, at 447.  The Vons court further noted that modern transportation and communications makes defending in another state a much less burdensome proposition today. Id. 

 

Case law holds that when a tort, such as an assault, occurs in California, there is specific jurisdiction there. It does not matter that defendant is from another state; even a single, short visit involving the tort can be enough to establish personal jurisdiction. Doe v. Damron (2021) 70 Cal.App.5th 684, 690-692.

 

The court in Damron held that the defendant husband was subject to personal jurisdiction for sexual abuse of his wife on trip to California, even though both plaintiff and defendant were Georgia residents.

 

Similar to here, the Damron plaintiff also alleged certain acts that took place in Georgia in addition to the assault in California.  However, the plaintiff stated on the record that all of her causes of action were based solely on the acts in California. (Doe v. Damron (2021) 70 Cal.App.5th 684, 688.)  The court accepted this in ultimately finding that California could exercise personal jurisdiction over the defendant.  Defendant argues here that because Plaintiff alleges other actions that took place in New Mexico, the abuse that occurred in California should not be the sole reason to support jurisdiction.  However, Plaintiff has stated that here, as in Damron, this action pertains to the acts of abuse that occurred within the State of California. Complaint, ¶ 1, fn. 1.

 

In Damron, the court explained that the requirements for specific jurisdiction are met “when a tort claim is based on the actions of a defendant who traveled to a state and, while there, injured the plaintiff.” Id. at 691.  “Visitors to a state should reasonably expect that, if they assault someone on their travels, they may have to answer for their conduct in the state's courts.” Id. at 692.

 

Defendant relies on Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, in which the Court of Appeal affirmed the trial court’s granting of a motion to quash due to lack of specific jurisdiction. That case is distinguishable, however, because the plaintiff’s alleged injuries occurred in Virginia.

 

In addition, Defendant argued at the initial hearing that the Court cannot properly exercise specific jurisdiction over it because (1) Plaintiff does not allege any claim against Defendant based on Defendant being vicariously liable (as employer) for the tortious conduct of its employee, Yannoni; and (2) in any event, Defendant could not be vicariously liable for Yannoni’s sexual assaults on Plaintiff because, as a matter of law, any such conduct would necessarilly be outside the course and scope of Yannoni’s employment; and (3) the claims against Defendant therefore necessarily relate only to Defendant’s own conduct — e.g., its alleged negligent hiring, supervision, retention, failure to implement or comply with policies/procedures to protect against abuse, making the decision to permit Yannoni to take the trip with Plaintiff and others without a chaperone/supervision — all of which occurred outside the state of California, in New Mexico. 

 

Contrary to Defendant’s argument, the Court finds there is legal support for potential vicarious liability.

 

In Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App. 5th 85, 107, the Court stated that under the rule of respondeat superior, an “employer may be vicariously liable for willful, malicious, even criminal acts, of an employee that are deemed to be committed within the scope of employment, even though the employer has not authorized such acts,” and that specifically

“a sexual tort will be considered to be within the scope of employment if ‘its motivating emotions were fairly attributable to work-related events or conditions.’” (Id.)  In Samantha B, an unlicensed mental health worker employed by an acute psychiatric hospital sexually assaulted three patients. (Id. at 91-92.) He was permitted to be alone with female patients in their rooms, which were not visible from the nursing stations, for up to 20 minutes. (Id. at 93.) Mental health workers were tasked with helping patients with daily activities and were personally involved with the patients over an extended period of time. (Id. at 108.) The appellate court considered whether “the employment predictably create[d] the risk that employees [would] commit intentional torts of the type for which liability is sought.” (Id. at 107.) The court held there was ample evidence to support the conclusion that the worker became sexually involved with the patients “as a result of mishandling the feelings predictably created by the [parties’] relationship.” (Id. at 108.) “Sexual exploitation of the patients by employees is a foreseeable hazard arising from the circumstances of the job,” that was “exponentially increased” by the hospital’s policies, including allowing male workers minutes alone with patients in a room secluded from view and providing inadequate training on worker-patient boundaries. Thus, vicarious liability via respondeat superior was justified. (Id. at 107-108.)

 

The Samantha B court distinguished Lisa M (relied on by Defendant) on the grounds that the employee’s interaction with the victim was extremely brief and the employee’s duties entirely technical, and “highly unlikely to engender a personal relationship that might result in sexual exploitation.” (Samantha B., supra, 77 Cal. App. 5th at 108.)

 

As in Samantha B, Yannoni was permitted to spend a lot of time with Defendant and the other minors in the program, including taking them on overnight trips to Disneyland. Yannoni’s employment required him to develop personal relationships with the minors and travel with them.  It certainly is reasonable to find that the alleged abuse in this matter was a foreseeable hazard under the circumstances and that Yannoni’s “motivating emotions were fairly attributable to work-related events or conditions.” 

 

Furthermore, and perhaps more important given the allegations in the Complaint, Defendant’s own conduct, specifically the alleged negligent supervision of Yannoni while in California, supports specific jurisdiction. (Complaint, ¶ 66.)

 

Given that Plaintiff here alleges abuse and assaults that took place on three separate trips to Disneyland, there are sufficient contacts to support specific jurisdiction.

 

The Court also must consider whether there are other factors that would make the exercise of jurisdiction unreasonable. See Id. at 692. “This inquiry calls for a weighing of interests,” which “include, among others, the forum state's interest in adjudicating the case, the plaintiff's interest in obtaining convenient and effective relief, and the burden on the defendant of appearing in the forum.”(Id.  “Despite sufficient contacts with a forum state, a defendant may prevail by demonstrating that litigating the case in a foreign state would be “‘so gravely difficult and inconvenient’ ” that it would put him at a “ ‘severe disadvantage’ in comparison to his opponent.” Id. at 693 [citing Burger King Corp. v. Rudzewicz (1985) 471 US 462, 478].

 

Defendant submits a declaration from its CEO, Colby Wilson (“Wilson”), to support its argument that it would be unreasonable to try this matter in California.  In addition to stating that the Club is based in New Mexico and has never conducted business in California, Wilson states it would take 12-14 hours to drive from New Mexico to Orange County and “cost thousands of dollars in travel and other expenses.” Wilson Decl., ¶ 5.  He also states that he is not aware of any witnesses, evidence or documents in California. Id., ¶ 6.  And, he states the Club is currently defending several related actions in New Mexico involving some of the same employees. Id., ¶ 8.

 

The Court finds the burden on Defendant does not outweigh the Plaintiff’s and California’s interests in litigating the matter here, where the alleged assaults occurred.  Defendant, and any other potential witnesses, do not necessarily need to travel to California for a deposition.  Depositions can easily be conducted remotely.  Defendant has not shown that litigating the case in California would be “so gravely difficult and inconvenient that it would put [it] at a severe disadvantage in comparison to [it] opponent.” See Doe v. Damron (2021) 70 Cal.App.5th 684, 693.

 

Defendant additionally argues that Plaintiff’s causes of action for negligent retention, negligent supervision, constructive fraud, and breach of fiduciary duty can only be established by conduct that occurred in New Mexico, committed by residents of New Mexico, and supported by evidence that exists in New Mexico. 

 

But, there is law that supports jurisdiction even though the claims are a mixed bag, as is the case here. See Keeton v. Hustler Magazine, Inc. (1984) 465 US 770, 773, 780 (personal jurisdiction in intentional injury cases may be upheld even where plaintiff suffered only “a small proportion of her total claimed injury” within the forum state); Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme (9th Cir. 2006) 433 F3d 1199, 1207 (if a “jurisdictionally sufficient” amount of harm is suffered in forum state it does not matter that even more harm is suffered elsewhere).

 

Accordingly, the Court denies Defendant’s Motion to Quash Service of Summons.

 

Forum Non Conveniens

 

Defendant alternatively requests that the matter be dismissed or stayed based on forum non conveniens.

 

“In assessing a forum non conveniens motion the trial court looks first to whether the alternative forum is a suitable place for trial. [Citation.] If it is, then the court looks to the private interests of the litigants and the public interest in keeping the case in California. [Citation.]” (Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 412 [citing Stangvik, infra, 54 Cal.3d 744].)

Only after the trial court reaches the conclusion that a suitable alternate forum exists, should it consider whether the benefits of the proposed alternative forum outweigh the reasons for keeping the litigation in California. Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1368.

 

An alternative forum is “suitable” if it has jurisdiction and an action in that forum will not be barred by the statute of limitations. Guimei v. General Elec. Co. (2009) 172 Cal.App,4th 689, 696; Chong v. Sup.Ct. (HBZ Finance Ltd.) (1997) 58 Cal.App.4th 1032, 1036-1037; see Investors Equity Life Holding Co. v. Schmidt, supra, 233 Cal.App.4th at 1368; Wang v. Fang (2021) 59 Cal.App.5th 907, 920, 273 CR3d 753, 763-764 (non conveniens motion should be granted unless action in the foreign venue “would be barred, as opposed to might be barred” by statute of limitations (emphasis in original)).

 

Defendant bears the burden of proof of establishing that: (1) a suitable alternative forum is available, and (2) the balance of public and private interests factors makes it just that the litigation proceed in the alternative forum. Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 751. The inquiry is not whether some other state or country provides a better forum than does California, but whether California is a seriously inconvenient forum. See Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611.  In Ford Motor Co. the court explained that: “Unless the balance is strongly in favor of defendant, the plaintiff’s choice of forum should rarely be disturbed.” Id., at 610 to 611, and Morris v. Agfa Corp. (2006) 144 Cal.App.4th 1452, 1465.

 

When there are multiple defendants, all defendants must be subject to personal jurisdiction in the alternative forum. See American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 670, 676-677.

 

In American Cemwood Corp, plaintiff insureds brought an action against several insurance companies, two of which moved for dismissal on the basis of forum non conveniens. (Id. at 434.) The trial court granted the forum non conveniens motion as to these two insurer defendants in favor of the alternative forum of British Columbia, but continued the action in California as to the remaining insurer defendants. (Id.) The Court of Appeal reversed, holding that “a suitable alternative forum is one in which the plaintiff may sue all of the properly named defendants” and that the moving insurer defendants’ “failure to demonstrate that all defendants are subject to jurisdiction in British Columbia precludes application of forum non conveniens.” (Id. at 437, 440.)

 

Defendant fails to meet its burden to show that New Mexico is a suitable forum. 

 

Defendant argues New Mexico is a suitable forum because the alleged acts and omissions giving rise to the liability and damages theories alleged in the Complaint almost exclusively occurred in New Mexico, e.g., Plaintiff’s participation in the Club program, Plaintiff’s alleged abuse and the hiring, supervising or retaining decisions.  Defendant is also headquartered in New Mexico and has its principal place of business there. (Wilson Decl. ¶ 6.)

 

But Defendant has not demonstrated that all defendants are subject to jurisdiction in New Mexico. See American Cemwood Corp., supra, 87 Cal.App.4th at 437, 440. Here, Defendant Yannoni resides in Oklahoma. (Compl. ¶ 8.) Defendant Boys & Girls Club of America is headquartered in Atlanta, Georgia and has recently filed pleadings in New Mexico in connection with these sexual abuse scandals claiming that it is not subject to jurisdiction in New Mexico. (Scott Decl. Ex. F [BGCA Motion to Dismiss for Lack of Personal Jurisdiction].)

 

In addition, Defendant has made no effort to show that the action is not barred by New Mexico’s statute of limitations. This is Defendant’s burden. Stangvik, supra, 54 Cal.3d at 751.

 

Section 37-1-30 of the New Mexico Statutes provides as follows:

A. An action for damages based on personal injury caused by childhood sexual abuse shall be commenced by a person before the latest of the following dates:

(1) the first instant of the person’s twenty-fourth birthday; or

(2) three years from the date that a person first disclosed the person’s childhood sexual abuse to a licensed medical or mental health care provider in the context of receiving health care from the provider.

 

At the time of filing his Complaint, Plaintiff was 46 years old. Plaintiff disclosed his childhood sexual abuse to a licensed medical provider more than three years prior to filing his Complaint in this action. (Opposition, pg. 13.)

 

As a result, the motion to dismiss or stay the case for forum non conveniens is DENIED.

 

Plaintiff is ordered to give notice.