Opinion
B161552.
7-14-2003
RICHARD BUDGERY et al., Plaintiffs and Appellants, v. LORILLARD TOBACCO COMPANY et al., Defendants and Respondents.
Brayton & Purcell, Alan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy and David Polin for Plaintiffs and Appellants. Shook, Hardy & Bacon, David M. Woods and J. Michael Roberts, for Defendant and Respondent Lorillard Tobacco Company. Law Offices of Ralph F. Hirschmann, Ralph F. Hirschmann, Bernard C. Barmann, Jr. and Eric L. Compere, for Defendant and Respondent Hollingsworth & Vose Company.
Appellants appeal from an order staying their action against respondents on the grounds of forum non conveniens. (Code Civ. Proc., § 410.30 .) The trial court concluded that Michigan was the appropriate forum to adjudicate the matter. It stayed the California action and directed appellants to file the matter in Michigan. We conclude the motion was properly granted and affirm.
FACTS
Exposure to Asbestos
Appellant Richard Budgery, age 90, suffers from mesothelioma, a rare form of cancer caused by exposure to asbestos. Budgery contends that his exposure occurred by handling certain products and occupying work environments containing asbestos. He also alleges that he was exposed to asbestos while smoking "Kent" brand cigarettes manufactured by respondent Lorillard Tobacco Company. From 1952 to 1956 respondent Hollingsworth and Vose manufactured a "Micronite" filter that contained asbestos and was used in Kent cigarettes. Budgery also asserts that he was exposed to asbestos during home remodeling.
Richard Budgery died on August 4, 2002, before the trial court issued its order. Virginia Budgery pursues the appeal in her own capacity and as successor in interest to her husband. We refer to them collectively as "appellants."
Budgery was employed in Michigan for 21 years and in California and Guam for a total of 2 years. While he lived in Michigan, Budgery spent 13 years as a school custodian and 8 years as an equipment and drill operator for an automotive company. During his stay at the Naval Repair Facility in San Diego, he served as a machinists mate. Budgery does not specify what portion of the 2-year period was spent in California.
Contents of Complaint
In approximately December 2001, Budgery was diagnosed with mesothelioma. Three months later, he and his wife, Virginia, filed a complaint in Los Angeles Superior Court for personal injury and loss of consortium. The complaint named 18 defendants, including respondents, and 500 does. Within the complaint appellants listed the names of 66 "alternate entities." These entities were allegedly related to the named defendants as (among other things), predecessors, successors, subsidiaries, researchers, manufacturers, designers, assemblers and distributors of products containing asbestos.
Respondents filed separate motions for forum non conveniens, seeking to have the action transferred to Michigan. They argued that the action should not be heard in California because Budgery spent only two years here. In addition, they contended the majority of treating physicians, witnesses and medical and employment records were likely located in Michigan.
Attached to appellants opposition to the motion was the declaration of appellants attorney. He stated that there "are currently five active defendants in this action" and named Lorillard Tobacco Company, Hollingsworth and Vose Company, Gatke Corporation, Plant Insulation Company and Thorpe Insulation Company. Also attached to the opposition were the declarations of the attorneys representing Plant Insulation Company and Thorpe Insulation Company (Plant and Thorpe). Both declarations indicated that neither Plant nor Thorpe is subject to jurisdiction in Michigan. The trial court stayed the California action and directed appellants to file the action in Michigan.
DISCUSSION
On appeal, appellants argue that two of the five "active defendants," Plant and Thorpe, have declared they are not subject to jurisdiction in Michigan. Thus, appellants reason, an action cannot be maintained in Michigan since that state does not have jurisdiction over all five defendants. Respondents counter that Plant and Thorpe are "sham defendants," whose sole purpose is to defeat respondents forum non conveniens motions and keep the action in California.
Forum Non Conveniens
Under the equitable doctrine of forum non conveniens, a court may decline to exercise its jurisdiction to hear a case if it may be more appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751, 819 P.2d 14.) The doctrine has been codified in Code of Civil Procedure section 410.30, subdivision (a), which provides, "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." When a court grants a stay under section 410.30, it retains jurisdiction of the case and may order the action resumed if the plaintiff is denied a prompt trial in the alternative forum. (Ferreira v. Ferreira (1973) 9 Cal.3d 824, 841, 109 Cal. Rptr. 80, 512 P.2d 304.) A dismissal, by contrast, completely deprives the court of jurisdiction over the action. (Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 411.)
When ruling on a forum non conveniens motion, the trial court engages in a two-step analysis. First, it must determine whether there is a suitable alternative forum. If the court determines that the forum is suitable, it moves onto the second prong and weighs the private interests of the litigants against the public interest in keeping the case in California. (Stangvik v. Shiley, Inc., supra , 54 Cal.3d at p. 751; Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1186-1188.)
After hearing argument on respondents motion, the trial court stated, "The plaintiff is quite elderly. I think hes 90 years old. His work history, everything that we have in the matter really points toward Michigan, not the great state of California. [P] . . . [P] Youre taking two years out of a 40-year work history where he was exposed in other areas as well. And youre asking me to say without medical testimony to back it up that thats the exposure that gave him this horrible disease thats going to kill him."
The trial court denied appellants request to offer medical evidence, stating, "Im going to send it on its way. [P] It just makes sense to have that matter heard really where the genesis of it is. Hes a Michigan resident. Everything about the case basically is in Michigan except this brief deviation out of his whole life of a period of two years. And I dont think that you can really say here that thats the only time that he had any exposure." The trial court stayed the matter and directed appellants to file the action in Michigan within 90 days. It retained jurisdiction for the duration of the stay to enforce the terms of the order.
"The doctrine of forum non conveniens presupposes the existence of at least two forums in which all defendants are amenable to process." (American Cemwood Corp. v. American Home Assurance Co. (Cemwood) (2001) 87 Cal.App.4th 431, 438 [noting the federal forum non conveniens law is "virtually identical" to California law].) A forum is suitable if it has jurisdiction to hear the matter and no statute of limitations bars hearing the case on the merits. (Roulier v. Cannondale, supra, 101 Cal.App.4th at p. 1186.) The moving party bears the burden of proof. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751; Roulier, at p. 1186.) Suitability of a forum is a legal question which we review de novo. (Roulier, at p. 1186; Cemwood, at p. 436; see also Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1036; Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 131.) By contrast, the trial courts weighing of the private and public interests is reviewed for an abuse of discretion. (Cemwood, at p. 436.)
Appellants allege that they presented sufficient evidence below to show that the statute of limitations in Michigan did not bar their claims. Respondents do not dispute this contention.
Suitability of Alternative Forum
Appellants argue that the trial court failed to meet the first prong of the test because it did not determine whether Michigan was a suitable forum. Had the court reached this issue, they contend, it would have found the forum to be unsuitable because two of the five "active" defendants were not amenable to service in Michigan. Thus, the motion should have been denied without consideration of the second prong-weighing the private interests of the litigants against the public interest in retaining the case in California.
The parties dispute the total number of defendants in the action and whether the alternative forum must have personal jurisdiction over each defendant. Appellants argue that Michigan is not a suitable alternative forum because respondents failed to prove that all defendants could be sued in that state. They premise their argument on Cemwood, supra, 87 Cal.App.4th 431. Cemwood, an Oregon corporation, filed an insurance coverage action in California against five of its insurers. They were located in four different states, Connecticut, Pennsylvania, Oregon and two in New York. Cemwood had a parent corporation in Canada.
The New York insurers (along with a Canadian counterpart) filed suit against American Cemwood in British Columbia. They moved in the California court to dismiss or stay the California action. (Cemwood, supra, 87 Cal.App.4th at pp. 435-436.) Their motion was denied because they were unable to prove that all five defendants were subject to jurisdiction in British Columbia. (Id. at pp. 438-440.) Appellants argue that their case, like Cemwood, involves five defendants. They contend that, like Cemwood, respondents have failed to prove that all defendants are subject to jurisdiction in the alternative forum. Therefore, the action cannot be transferred to Michigan and forum non conveniens does not apply.
Respondents counter that Cemwood is inapplicable because appellants have named many more than five defendants in their action. In support of their contention, they rely on Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, an asbestos case involving 200 named defendants. There, the moving party was unable to prove that 3 of the 200 defendants were subject to jurisdiction in the alternative forum. The Hansen court observed that there is no authority that the moving defendant must prove all the defendants are subject to jurisdiction in the alternative forum. (Id. at pp. 758-759.) Such a requirement would be unreasonable, the court concluded, because a forum non conveniens motion is brought early in the proceedings, thus it would be unclear whether all defendants were even subject to jurisdiction in California. (Id. at p. 759.)
Both parties contend that the inquiry turns on the facts of the case. Appellants identified 84 defendants in their complaint. It is disingenuous to now assert that only five are "active." Appellants provide no authority for their distinction between "active" defendants and the remaining 79. Due to the nature of the case (asbestos) and the large number of defendants, the rule in Hansen applies. Appellants reliance on Cemwood is misplaced. Here, we are concerned with a personal injury action brought against as many as 84 defendants; Cemwood concerns insurance coverage litigation with five defendants. Although the trial court made no express finding that Michigan was a suitable forum, there was no error. Like Hansen, the trial court did not dismiss the matter, but retained jurisdiction and directed appellants to bring the action in the alternative forum. Applying a de novo standard of review, we conclude that the court properly determined that Michigan is a suitable forum to litigate respondents liability.
Balance of Public and Private Interests
If the trial court concludes that the forum is suitable, "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." (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751; Century Indemnity Co. v. Bank of America, supra, 58 Cal.App.4th at p. 412.) The private interests include 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. [Citations.]" (Stangvik , at p. 751.)
Stangvik concerned two plaintiffs who died as a result of defective heart valve implants. The plaintiffs had resided in Norway and Sweden, but the action was filed in California, the location of the heart valve manufacturer. The trial court first considered the convenience of the parties. It determined that Scandinavia was the most convenient forum because the witnesses, evidence of medical care, medical histories and loss of earnings and "all the witnesses to the familial impact of their deaths are located in Scandanvia." (Stangvik v. Shiley Inc., supra, 54 Cal.3d at pp. 767-757.) The court next considered the public interest in keeping the action in California. It concluded that, although the manufacturer was located in California, there was little difference in the deterrent effect of the wrongful conduct of trying the cases in Scandinavia rather than California. In addition, the multiplicity of cases involving heart valve litigation could cause undue congestion in the California courts. (Id. at p. 758.)
In Hansen v. Owens-Corning Fiberglas Corp., supra, 51 Cal.App.4th 753, the court found that both the private and public interests favored litigation in the alternative forum. Although the plaintiffs lived in Montana, they filed an asbestos action in California, where one of their sons resided. The plaintiffs asbestos exposure had occurred primarily in the state of Montana. They had never lived in California and did not allege that any exposure occurred here. The witnesses and treating doctors live in Montana, and the medical treatment was given there. The majority of the defendants were subject to jurisdiction in both Montana and California. (Id. at pp. 759-760.) The court determined that public interest weighed in favor of trial in Montana, noting that California courts are overburdened with asbestos litigation. California residents should not be expected to serve on a case involving injuries incurred outside California by nonresidents. (Id. at p. 760.)
Respondents argue that both the private and public interests weigh in favor of trying the case in Michigan. We agree. Budgery was a lifelong resident of Michigan. He was employed in California for less than two years. He was diagnosed in Michigan and received medical treatment there. Budgerys medical and employment records would likely be in Michigan and witnesses to his medical treatment and employment history would likely reside there.
Lastly, respondents rely on Stangvik to argue that abuse of discretion is the proper standard of review for both prongs of a forum non conveniens analysis. They allege that the line of cases holding that a forum suitability determination is subject to de novo review were wrongly decided. Respondents misread Stangvik. There, our Supreme Court indicated that the suitability of an alternative forum is not "part of the discretionary determination of the balance of conveniences. . . . [It] depends not on the factors relevant to the convenience of the parties and the interests of the public, but on whether an action may be commenced in the alternative jurisdiction and a valid judgment obtained there . . . ." (Stangvik v. Shiley, Inc. supra, 54 Cal.3d at p. 752, fn. 3.)
The principle set forth in Stangvik has been reiterated in subsequent cases. "In Stangvik, the Supreme Court expressly rejected defendants suggestion that the suitability of the alternative forum is part of the discretionary determination of the balance of conveniences." (Cemwood, supra, 87 Cal.App.4th at p. 436.) The Cemwood court concluded that a suitability determination is subject to de novo review; and this principle was followed in Roulier v. Cannondale, supra, 101 Cal.App.4th at p. 1186. Application of a de novo standard is supported by earlier case law which stated that forum suitability is a nondiscretionary determination. (See Chong v. Superior Court, supra, 58 Cal.App.4th at p. 1036; Shiley Inc. v. Superior Court, supra, 4 Cal.App.4th at p. 131.) In light of the foregoing authorities, we must reject respondents argument.
The bulk of the allegedly wrongful conduct was committed while Budgery was employed in Michigan. He smoked Kent cigarettes with micronite filters from 1952 to 1956, seven years after he left California. Appellants present no evidence to suggest that any of the corporate defendants have ties to California that would justify maintaining the action here. The trial court did not abuse its discretion.
The order staying further proceedings on the ground of forum non conveniens is affirmed. Costs on appeal are awarded to respondents.
We concur: GILBERT, P.J. PERREN, J.