Forum Non Conveniens Law and Landmark California Cases

The analysis to be applied in deciding motions based on forum non conveniens is well settled. "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. . ... In determining whether to grant a motion based on forum non conveniens, a court must 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. 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. 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." (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) Key to assessing whether an alternative forum would be suitable is the determination that the forum would be able to exercise jurisdiction over the defendant, and that the plaintiff's claim would not be barred by its statute of limitations. (Stangvik, supra, 54 Cal.3d at p. 752 " 'the California suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states. The same will be true if the plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant's stipulation that he will not raise this defense in the second state' ".) Moreover, in determining whether to grant a motion based on forum non conveniens, "the trial court ... has considerably wider discretion when it chooses to merely stay, rather than dismiss, an action precisely because under a stay California retains jurisdiction." (Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 411 68 Cal. Rptr. 2d 132.) Thus, as explained by our Supreme Court in Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 860, a case notably similar to this one, when the assessment of the alternative forum's suitability is dependent upon factors beyond the control of the California courts -- such as the interpretation of another state's laws -- then a stay of the California litigation might be justified, when an outright dismissal would not be. In Archibald, the Supreme Court first acknowledged that assessing how Hawaii's courts would interpret its own class action law was inherently "speculative," but then concluded that such uncertainty did not preclude the court's grant of the forum non conveniens motion: "The existence of unsettled questions of Hawaiian procedure does not compel the trial court to conclude as a matter of law that Hawaii is not a suitable alternative forum. Uncertainties such as this concerning the suitability of the foreign forum have prompted our holding that a court cannot dismiss a suit . . . , but can stay that suit: the staying court can resume proceedings if the foreign forum proves unsuitable." (Id. at p. 862.) That same analysis would also apply where a California court's assessment of an alternative forum's suitability depends on the defendant's stipulation -- in the California litigation -- to the jurisdiction of the alternate forum and to a tolling of the applicable statutes of limitations if a case were litigated there. The California court could properly rely upon such a stipulation in making its ruling, or as happened in Stangvik itself, could expressly condition its ruling on the defendants' compliance with such requirements. (Stangvik, supra, 54 Cal.3d at p. 750, fn. 2.) However, once the litigation proceeds to the alternative forum, the California court would have no direct power to enforce the stipulation in that other forum, or to compel the defendants' compliance with its earlier conditional ruling. So by choosing to stay, rather than dismiss, the California litigation, the court retains at least the indirect power to do so: "the staying court . . . can compel the foreign party to cooperate in bringing about a fair and speedy hearing in the foreign forum; it can resume proceedings if the foreign action is unreasonably delayed or fails to reach a resolution on the merits." (Ferreira v. Ferreira (1973) 9 Cal.3d. 824, 841; see Stangvik, at p. 750 reflecting the court's retention of "jurisdiction to make such further orders as might become appropriate".) The doctrine of forum non conveniens allows courts to "exercise their discretionary power to decline to proceed in those causes of action which they conclude, on satisfactory evidence, may be more appropriately and justly tried elsewhere." ( Price v. Atchison, T. & S. F. Ry. Co. (1954) 42 Cal.2d 577, 584 268 P.2d 457.) The doctrine of forum non conveniens is codified in Code of Civil Procedure section 410.30, subdivision (a), which provides: "(a) 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." In determining whether to grant a motion based on forum non conveniens, the court makes a threshold determination whether the alternate forum is a suitable place for trial, and if it is, the court then balances the private interests of the litigants and the interests of the public in retaining the action in California. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751-752 1 Cal. Rptr. 2d 556, 819 P.2d 14.) "The defendant, as the moving party, bears the burden of proof. The granting or denial of such a motion is within the trial court's discretion, and substantial deference is accorded its determination in this regard." (Id. at p. 751.) (3) An alternative forum is suitable if the defendant is subject to its jurisdiction and the cause of action is not barred by the statute of limitations. (Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696 91 Cal. Rptr. 3d 178 (Guimei); Judicial Council of Cal., com., reprinted at 14 West's Ann. Code Civ. Proc. (2004 ed.) foll. 410.30, p. 486.) "So long as there is jurisdiction and no statute of limitations bar, a forum is suitable where an action 'can be brought,' although not necessarily won." (Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 132 6 Cal. Rptr. 2d 38 (Shiley).) The alternative forum does not become unsuitable simply because the law is less favorable or recovery is more difficult, if not impossible. (Guimei, supra, at p. 696.) In "'rare circumstances,'" an alternative forum may be found unsuitable if it provides "'no remedy at all.'" (Shiley, supra, 4 Cal.App.4th at p. 133; see Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 254-255, fn. 22 70 L. Ed. 2d 419, 102 S. Ct. 252.) This exception has been applied in cases where the proposed alternative forum is in a foreign country that lacks an independent judiciary or fails to provide basic due process rights to one or more of the litigants. (Shiley, supra, at pp. 133-134.) The court in Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700 46 Cal. Rptr. 2d 888, explained that "a forum is suitable if the defendant is amenable to process there, there is no procedural bar to the ability of courts of the foreign jurisdiction to reach the issues raised on their merits (or, if there is, the advantage of the bar--typically, the statute of limitations--is waived by defendants), and adjudication in the alternative forum is by an independent judiciary applying what American courts regard, generally, as due process of law." (Id. at p. 711.) In Rasoulzadeh v. Associated Press (S.D.N.Y. 1983) 574 F.Supp. 854, 861 (Rasoulzadeh), the court held that an alternative forum in Iran was not available since Iranian courts were administered by Iranian mullahs and the plaintiffs were likely to be shot if they returned to Iran. Rasoulzadeh, in particular, has been cited by California courts as an example of the "rare circumstance" in which an alternative forum provided no remedy at all. (See Guimei, supra, 172 Cal.App.4th at p. 697; Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1037 68 Cal. Rptr. 2d 427; Shiley, supra, 4 Cal.App.4th at p. 134, fn. 4.) Similarly, in Bank Melli Iran v. Pahlavi (9th Cir. 1995) 58 F.3d 1406, 1410, banks sought to enforce judgments they obtained in Iran against the sister of the former Shah. The Ninth Circuit declined to recognize the Iranian court judgments because the defendant "could not expect fair treatment from the courts of Iran, could not personally appear before those courts, could not obtain proper legal representation in Iran, and could not even obtain local witnesses on her behalf." (Id. at p. 1413.) In short, the defendant could not obtain due process of law in the Iranian courts. (Ibid.)