Judge Ronald F. Frank, Case Number: 23TRCV01786, Date: 2023-08-17 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV01786, Date: 2023-08-17 Tentative Ruling

Case Number: 23TRCV01786 Hearing Date: August 17, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: August 17, 2023¿¿

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CASE NUMBER: 23TRCV01786

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CASE NAME: Michael Boggs; Christina Cohan v. SGPS Showrig Los Angeles, Inc., et al.

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MOVING PARTY: Defendant, SGPS Showrig Los Angeles, Inc.

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RESPONDING PARTY: Plaintiffs, Michael Boggs; Christina Cohan

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TRIAL DATE: None Set.

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MOTION:¿ (1) Motion for Forum Non-Conveniens

Tentative Rulings: (1) DENIED. The Court will entertain oral argument as to whether venue would be more appropriate in Fresno County, Plaintiffs’ residence, than Los Angeles County, and whether the balance of public and private interests would change were other parties such as those with Nevada domiciles or principal places of business were added as defendants

I. BACKGROUND¿¿

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A. Factual¿¿

On June 5, 2023, Plaintiffs, Michael Boggs and Christina Cohan (collectively “Plaintiffs”) filed a Complaint against Defendants, SGPS Showrig Los Angeles, Inc, SGPS, Inc., and DOES 1 through 50. The Complaint alleges causes of action for: (1) Negligence; and (2) Negligent Hiring, Retention, Supervision, and Training.

Defendant, SGPS Showrig Los Angeles, Inc. now files a Motion to Dismiss or Stay Action based on Forum Non Conveniens.

B. Procedural¿¿

Plaintiffs filed this bodily injury suit on June 5, 2023 alleging that both plaintiffs reside in California but that Plaintiff Boggs was injured on the set of a Canadian rock concert featuring the artist Sza. On July 21, 2023, Defendant SGPS Showrig Los Angeles, Inc. filed a Motion to Stay Action based on Forum Non Conveniens. On August 4, 2023, Plaintiffs filed an opposition. On August 8, 2023, Defendant filed a reply brief.

II. REQUEST FOR JUDICIAL NOTICE

Defendant, SGPS Showrig Los Angeles, Inc. requested that this Court take judicial notice of the following:

1. Nevada Revised Statute 11.190

Pursuant to California Evidence Code § 452, the Court GRANTS Defendant’s request and takes judicial notice of the above.

III. ANALYSIS¿

The Court preliminarily notes that Plaintiffs allege that they reside in Fresno County, not Los Angeles County, that defendant SGPS Showrig Los Angeles is a California corporation doing business in Los Angeles County, and that David Maher interacted with Plaintiff Boggs on the performance stage in Toronto Canada where the subject injury occurred due to the stage’s collapse. The Complaint does not allege Maher’s place of residence. Presumably Plaintiff Cohan’s loss of consortium damages occurred in Fresno County where she and her husband David Maher are alleged to reside. The Motion asserts that while Showrig is incorporated in California, its principal place of business as of the date of this incident was in Nevada and that the company employing Mr. Maher, non-defendant SGPS Showrig, Inc. is a Nevada corporation. Witness Hicks submitted a declaration attesting to his residence in Alabama and his employ by SGPS Showrig, Inc.; witness Maher declared that he resides in Tennessee and is employed by SGPS Showrig, Inc.; and witness Weinclaw declared that he resides in Nevada and is employed by SGPS Showrig, Inc.

A. Legal Standard

“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).) “In applying the traditional forum non conveniens analysis, the trial court must engage in a two-step process, on which the defendant bears the burden of proof. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751; Chong v. Superior Court (1997) 58 Cal.App.4th 1032 1037- 1038; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462.) In the first step, the court must determine whether a suitable alternative forum exists. (Stangvik, supra, 54 Cal.3d at p. 751.) "If the court finds that a suitable alternative forum exists, it must then balance the private interests of the litigants and the interests of the public in retaining the action in California.” (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 472.) The trial court’s balancing is given substantial deference. (Chong, supra, 58 Cal.App.4th at p. 1038.)

In considering a forum motion, “[t]he court must consider such factors as the ease of access of proof, the availability and cost of obtaining witnesses, the possibility of harassment of the defendant in litigating in an inconvenient forum, the enforcibility of the judgment, the burden on the community in litigating matters not of local concern, and the desirability of litigating local matters in local courts.” (Goodwine v. Superior Court of Los Angeles County (1965) 63 Cal.2d 481, 485.) “But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” (Price v. Atchison, T. & S. F. Ry. Co. (1954) 42 Cal.2d 577, 585.)

B. Discussion

Here, Defendant, SGPS Showrig Los Angeles, Inc., contends that this litigation arises out of an incident that occurred on February 25, 2023 at Scotiabank Arena in Toronto, Ontario, Canada, making a Canadian forum more appropriate in its view. But the actors here, including the primary performer, the Plaintiff, the allegedly negligent non-defendant Mr. Maher, and the witnesses whose declarations the defendant submitted in support of its motion have no connection with Canada other than being temporarily employed at that location during a transitory concert tour. Plaintiffs apparently have no connection to the Los Angeles County venue, having sustained the injury and residing elsewhere. With that context, the Court will discuss the Stangvyk analysis.

Suitable Alternative

Defendant, SGPS Showrig Los Angeles, Inc., argues that Ontario, Canada or Nevada ar suitable forums for this lawsuit as Defendant is subject to jurisdiction in Ontario, Canada and Nevada. Defendant contends it has agreed to service of process of a complaint filed on Plaintiff’s behalf in Ontario, Canada regarding the incident and has agreed to submit to jurisdiction there, and also notes that although it is a California corporation, it has its office and principal place of business in Las Vegas, Nevada. Defendant also argues that these two locations are suitable forums because Plaintiffs have eighteen months to file a lawsuit in either jurisdiction before the statute of limitations expires. Next, Defendant also notes that the two locations are suitable forums because each provide an adequate remedy to Plaintiff regarding damages claimed. With respect to Ontario, Canada, Defendant notes provincial law in Canada is similar to that of California concerning personal injury lawsuits, and while there are minor differences not relevant here, there is no right to a jury trial for matters with under $200,000 in damages. (Neither side has provided any information as to whether Plaintiffs’ damages may exceed $200,000.) With respect to Nevada, Plaintiff notes that such laws are very similar to those of California as well.

In opposition, Plaintiffs argue that defendants have failed to provide evidence that all of the defendants – including the defendant they have named as the alleged employer of the alleged negligent employee, who Plaintiffs intend to name as a DOE defendant – have agreed to jurisdiction in Canada. Plaintiffs also argue there is no representation, much less substantial evidence, that California defendant SGPS, Inc., has agreed to waive jurisdiction in Canada.

In its reply brief, Defendant, SGPS Showrig Los Angeles, Inc., argues that it has been established that Plaintiff, Michael Boggs was injured in Canada by an alleged tortfeasor employed by a Nevada Corporation, and that the matter should be dismissed so that Plaintiff can file it in Canada or Nevada. Defendant argues that: (1) Plaintiff Michael Boggs was injured in Toronto, Ontario, Canada; (2) The alleged tortfeasor who caused injury to plaintiff Michael Boggs is employed by a Nevada corporation, (3) plaintiffs will likely amend their complaint to name that Nevada corporation as a defendant in this lawsuit; and (4) the only named defendants in the complaint are California corporations whose principal places of business were moved to Nevada prior to this incident.

The Court notes that in Plaintiffs’ opposition, they concede that Nevada may be a suitable forum but argue that Defendant cannot prove that the balancing of private and public interests favor Nevada as the forum. The Opposition also recites several published decisions supporting the proposition that the Plaintiff’s selection of a forum should generally be followed unless the defendant overcomes that preference with a suitable alternative forum.

Weighing of Private and Public Factors

Defendant, SGPS Showrig Los Angeles, Inc. argues that private factors support that Ontario, Canada is the appropriate forum. For example, Defendant notes the alleged tortfeasor and his co-workers are all employed by a Nevada corporation, which allegedly makes Nevade the ideal venue for this case, and that the only connection to Los Angeles County is that Plaintiffs’ counsel has its office within the county. Defendant notes that Plaintiffs reside in Freson, California, that Defendants’ principal place of business is in Nevada, and that the alleged tortfeasor is an employee of a Nevada corporation. Defendants contend that wherever the case is venued, witnesses will have to travel to testify and Toronto, Ontario, Canada or Nevada have the closer Nexus to the case.

In opposition, Plaintiffs first argue that their choice of forum and Defendants’ residence render California a presumptively convenient forum that Defendant’s argument does not overcome nor address. Plaintiffs contend that California has a strong interest in seeing this case brought by an injured California resident against California corporations who have injured them. Plaintiffs note that as they are California residents, and Defendants are California corporations, this factor weighs strongly in favor of California as the appropriate forum. Plaintiffs further argue that even considering the addition of SGPS Showrig, Inc., a Nevada corporation Defendant alleges is the proper employer of David Maher, such addition does not negate the presumptive validity of forum based on the residence of the other two defendants, which it has provided no evidence or argument that suggest were not substantially involved. Plaintiffs also contend that Defendants fail to substantiate their claim that private interest facts support either Canada or Nevada as an appropriate forum because while they argue Canada is the appropriate forum, they only provide arguments in support of Nevada and fail to provide any evidence as to why Canada is an appropriate forum. Plaintiffs also contend that Defendant fails to provide evidence that Nevada is a more convenient forum, or that private interest factors weigh in their favor because the mere fact that Defendant has its principal place of business in Nevada is of no import when critical fact witnesses, including David Maher, the employee who is alleged to have been directly involved in causing the incident, live in other states, including Tennessee and Alabama. Plaintiffs also note Defendant has a large office in Los Angeles, which Plaintiff believes manufactures and provides staging like that involved in the subject incident, which may have been defective, and thus its closer proximity is of particular importance.

Defendant, SGPS Showrig Los Angeles, Inc., also argues that public interest factors compel that the action should be dismissed in California, and instead filed in Ontario, Canada. According to Defendant, these include, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern. The Court does not find this argument compelling since a Toronto jury likely would have little interest in compensating a Fresno, California Plaintiff injured by a Nevada or a California company’s employees. Defendant also asserts that California would have little interest in regulating the activities in Ontario or the employees of Nevada corporations, but the same could be true of a Nevada jury having little interest in resolving a bodily injury suit filed by California plaintiffs over claimed misconduct of Tennessee or Alabama residents who happen to be employed by a company incorporated in Nevada. Lastly, Defendant argues that there is a competitive disadvantage to California businesses if resident corporations and non-resident corporations are required to defend lawsuits here based on injuries incurred elsewhere.

In opposition, Plaintiffs argue that Defendant does not meet its burden of showing that public interest factors support Nevada or Canada as the appropriate forum. Plaintiffs contend that unlike Defendant’s argument, this case is not a foreign one simply because it occurred in Canada, as Plaintiffs are California residents as well as Defendant being California incorporated companies. Plaintiffs also note again that they believe staging involved in the accident was manufactured in California.

The Court finds that Defendant, SGPS Showrig Los Angeles, Inc., has not carried its burden in showing how either Canada or Nevada would be more suitable locations that California. Tentatively, this Court believes that the public and private factors weigh in favor of DENYING this Motion and maintaining jurisdiction in California. The Court will take argument as to whether Fresno or Los Angeles would be the more appropriate venue.