Opinion
D075402
05-21-2020
ADALBERTO OCHOA et al., Plaintiffs and Appellants, v. MAPFRE TEPEYAC, S.A., Defendant and Respondent.
Miller & Calhoon and Craig A. Miller for Plaintiff and Appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick J. Kearns, and David A. Hoynacki for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00024672-CU-IC-CTL) APPEAL from an order of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Miller & Calhoon and Craig A. Miller for Plaintiff and Appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick J. Kearns, and David A. Hoynacki for Defendant and Respondent.
Plaintiffs Adalberto and Maria Ochoa (together Plaintiffs) appeal from an order staying this action under Code of Civil Procedure section 410.30, subdivision (a), on the basis that Mexico is a more suitable forum. Each of Plaintiffs is a resident of San Diego, and in their complaint in this action, they allege that defendant Mapfre Tepeyac, S.A. (Defendant), a Mexico insurance company, wrongly refused to participate in the defense of Plaintiffs' prior lawsuit against the representative of the estate of Defendant's insured (Wrongful Death Lawsuit). Following, and based on, the settlement of the Wrongful Death Lawsuit, Plaintiffs filed the present action, alleging claims both as judgment creditors of the deceased insured's estate and as assignees of the estate's personal representative. The trial court found that Mexico is a more convenient forum for Plaintiffs' claims and stayed this action to permit Plaintiffs to pursue their claims in Mexico.
When necessary to differentiate between the two plaintiffs, we will use their first names only. No disrespect is intended.
"When a court upon motion of a party . . . finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay . . . the action in whole or in part on any conditions that may be just." (Code Civ. Proc., § 410.30, subd. (a); further undesignated statutory references are to this code.)
Plaintiffs contend that the trial court erred in finding that Mexico is a more convenient forum for this action. However, because Plaintiffs did not meet their burden of establishing that the court abused its discretion in granting Defendant's motion, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We base our factual recitation on the evidence before the trial court, which is found in the declarations and exhibits to the declarations submitted in support of and in opposition to Defendant's motion to stay. A. The Parties & the Accident
Plaintiffs have lived in San Diego since 1993, and at the time of the trial court proceedings, they resided in the Otay Mesa neighborhood. Adalberto, who is 78 years old, is a resident alien; and Maria, who is 64 years old, is a United States citizen. They own real property in Mexico.
Plaintiffs' adult son (Decedent) died in Tijuana, Mexico, in an October 2011 accident, when debris from an airplane crash struck him. According to the findings of an arbitrator in the Wrongful Death Lawsuit, Decedent was standing in the street of a populated commercial area not far from the end of a runway at the Tijuana airport when a private airplane owned and negligently operated by Francisco Zermeno crashed after takeoff—killing both Decedent and Zermeno. At the time of the accident, Decedent was 43 years old and worked and lived in Mexico with his three minor children; and Zermeno resided in San Ysidro.
Defendant is a Mexico insurance company with headquarters in Mexico City, Mexico. In October 2011, prior to the date of the accident, Defendant issued a special aircraft liability policy, No. MEX-AIR-998, to Zermeno (the Policy). B. The Policy
The Policy is written in Spanish (and designates Spanish as the controlling language), is issued pursuant to "the Civil Laws" of Mexico, and, the parties agree, is intended only to cover accidents occurring in Mexico. According to the unofficial courtesy translation of the Policy, the insured risks included "property damage" (with a limit of $175,000 per accident) and "Bodily Injuries" excluding pilots, crew, and passengers (with limits of $175,000 per person and $350,000 per accident).
Defendant provided an English translation of the Policy "as a courtesy."
Zermeno purchased the Policy through a broker in Los Angeles. In their complaint in this action, Plaintiffs allege that Defendant "delivered" the Policy to Zermeno in California. During the three years between January 2011 and December 2013, this broker sold more than 6,000 airplane policies issued by Defendant, though the evidence does not indicate where any specific insured resided or where any specific policy was delivered. In October 2018, Defendant had "88 agents/brokers in Southern California"; and Defendant filed statements of information with the California Secretary of State identifying Defendant's 2013 place of business on 3rd Avenue in Chula Vista and Defendant's 2018 place of business on Otay Lakes Road in Chula Vista. C. The Wrongful Death Lawsuit
We note as follows with regard to this evidence: (1) In testifying that Defendant had 88 Southern California agents, Plaintiffs' counsel conducted a computer search for "a MAPFRE Insurance Agent" on the website "www.mapfreinsurance.com"; and (2) in testifying that Defendant had principal places of business in Chula Vista in 2013 and 2018, the Secretary of State filings on which Plaintiffs rely indicate they are for the California corporation "Mapfre Tepeyac, Inc."—a company in the business of "Mexico Auto Insurance." (Italics added.) However, the Policy at issue—namely, a Mexico airplane insurance policy—was issued by "Mapfre Tepeyac, S.A." (Italics added.)
In October 2012, Plaintiffs and others filed San Diego County Superior Court case No. 37-2012-00079149-CU-PO-SC, entitled Ochoa v. Griscom (previously identified as the Wrongful Death Lawsuit). The plaintiffs in the Wrongful Death Lawsuit, alleging that they were the surviving heirs of Decedent, included: the "attorney in fact" for Decedent's two minor children; the personal representative of Decedent's estate; Decedent's adult child; Adalberto, Decedent's father; and Maria, Decedent's mother. Those plaintiffs named the following defendants: the personal representative of the estate of Zermeno; Global Aviation Management, Inc., a citizen and resident of Florida; and Avco Corporation, a citizen and resident of Rhode Island. In one cause of action for "Survival and Wrongful Death," the complaint alleged that each of these defendants (and unidentified DOE defendants) was "responsible under the law in some manner, negligently, in warranty, strictly, intentionally, or otherwise, for the events and happenings herein referred to and proximately thereby caused injuries and damages . . . as herein alleged."
They further alleged that the personal representative, Adalberto, and Maria were citizens and residents of California and that Decedent's three children were citizens and residents of Mexico. In his declaration in the present action, Adalberto testified that he was not a citizen of the United States.
The complaint alleged that Avco Corporation placed "defective and unreasonably dangerous" airplane engines and related components into the stream of commerce. Because the record on appeal does not contain a complete copy of the complaint in the Wrongful Death Lawsuit, we do not know either what Global Aviation Management, Inc., is alleged to have done (or not done) or "the events and happenings" on which the claim is based.
In December 2012, the personal representative of the Zermeno estate notified Defendant of the accident and later formally tendered to Defendant the defense of the Wrongful Death Lawsuit on behalf of the Zermeno estate. Defendant neither responded to the personal representative's correspondence nor provided him with a defense.
In October 2013, Adalberto (Decedent's father) and Decedent's younger brother, who witnessed Decedent's death, made a policy limits demand on Defendant, as well as on companies in the United States with similar names. Approximately three weeks later, Defendant replied, advising the claimants that, pursuant to the terms of the Policy, jurisdiction did not exist in the United States, and explaining to the claimants the process for asserting a third-party claim under the Policy in Mexico.
The demand letter was addressed to: Mapfre Tepeyac Mexican Insurance in Huixquilucan, Mexico; Mapfre Tepeyac, Inc., in Chula Vista, California; Mapfre Tepeyac, Inc. in San Ysidro, California; Mapfre Insurance Company in Sacramento, California; and Mapfre Insurance Company in Florham Park, New Jersey. Adalberto asserted "property damage claims," and Decedent's brother asserted "economic and non-economic claims."
Also in October 2013, Decedent's adult brother filed San Diego County Superior Court case No. 37-2013-00072596-CU-PO-CTL, entitled Ochoa v. Griscom. Alleging that he was present at the time Zermeno's plane crashed and witnessed Decedent's death, Decedent's adult brother brought claims for negligence and negligent infliction of emotional distress against the personal representative of the estate of Decedent. In January 2014, the court consolidated this action with the Wrongful Death Lawsuit for all purposes.
Meanwhile, Decedent's children pursued their claims in Mexico, and in April 2017 they settled their claims against the Zermeno estate. Defendant paid these claimants $1,799,999.97 Mexican pesos ($94,321.33 USD) in exchange for a full release.
Early the following year, in January 2018, Adalberto, Maria, and Decedent's brother arbitrated their claims in the Wrongful Death Lawsuit; Adalberto and Maria alleged wrongful death, and Decedent's brother alleged negligent infliction of emotional distress. The respondents to the binding arbitration were Zermeno and his estate. The arbitrator awarded to all claimants a total of more than $9 million again the respondents.
The award was against Zermeno and his estate in the total amount of $9,370,600, calculated as follows: $208,600 jointly and severally in favor of Adalberto and Maria for economic damages; $2 million in favor of Adalberto for non-economic damages; $2 million in favor of Maria for non-economic damages; $162,000 in favor of Decedent's brother for economic damages; and $5 million in favor of Decedent's brother for non-economic damages.
Pursuant to a stipulation in the Wrongful Death Lawsuit, in April 2018 the superior court confirmed the arbitration award and entered a final judgment in the amount of $4,208,600 in favor of Plaintiffs and against Zermeno and the estate of Zermeno. D. The Present Action
Neither the briefing nor the record on appeal explains either: (1) how the deceased Zermeno became a party to the Wrongful Death Lawsuit; or (2) how the Zermeno estate participated in the Wrongful Death Lawsuit after the appointment of its personal representative expired in December 2015.
In May 2018, Plaintiffs filed the present action against Defendant. Plaintiffs alleged five causes of action—two as assignees of the Zermeno estate, and three as judgment creditors of the Zermeno estate in the Wrongful Death Lawsuit. As alleged assignees of the Zermeno estate, Plaintiffs assert claims based on breach of contract (the Policy) and breach of the covenant of good faith and fair dealing implied in the contract. As judgment creditors of the Zermeno estate, Plaintiffs assert claims based on Insurance Code section 11580 (which, Plaintiffs allege, will allow them, as judgment creditors of the Zermeno estate, to enforce the judgment in the Wrongful Death Lawsuit against Defendant, as the insurer of the judgment debtor), breach of contract (the Policy), and breach of the covenant of good faith and fair dealing implied in the contract.
To support their claims as assignees of the Zermeno estate, Plaintiffs allege: "Plaintiffs are the assignees of all claims and causes of action the Estate of Ze[r]meno has against Defendant . . . based on [Defendant's] failure and refusal to participate in the defense of the [Wrongful Death] Lawsuit on Mr. Ze[r]meno's behalf, to reasonably consider and evaluate the damages claimed therein, and to settle the [Wrongful Death] Lawsuit for [P]olicy limits."
In part Insurance Code section 11580, subdivision (b)(2) provides that certain insurance policies "issued or delivered to any person in this state" must contain—or "shall be construed as if" containing—the following provision: "[W]henever judgment is secured against the insured or the executor or administrator of a deceased insured in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment."
In response, as provided by section 418.10, subdivision (a)(2), Defendant filed a motion to dismiss or, in the alternative, to stay the action under section 410.30, subdivision (a) (see fn. 2, ante). More specifically, Defendant brought its motion on the grounds "that California is an inconvenient forum for trial of this action, and that in the interest of substantial justice, this action should be heard in a forum outside of this state"—i.e., Mexico. Defendant included a memorandum of points and authorities, three declarations (one each from Defendant's claims manager, Defendant's San Diego counsel, and Defendant's expert on Mexico law), and a number of exhibits.
"(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] . . . [¶] (2) To stay or dismiss the action on the ground of inconvenient forum." (§ 418.10.)
Plaintiffs opposed the motion by filing a memorandum of points and authorities, five declarations (one each from Adalberto, Maria, the former personal representative of Zermeno's estate, and two of Plaintiffs' attorneys), and a number of exhibits. Plaintiffs argued that Defendant did not meet its burden of producing sufficient evidence of inconvenience to overcome the California Plaintiffs' choice of forum.
Defendant filed a reply to Plaintiffs' opposition to Defendant' motion.
At the conclusion of oral argument in December 2018, the trial court denied Defendant's motion to dismiss, but granted the motion to stay. In a written order, the court set forth the legal standards for determining a forum non conveniens motion and ruled as follows: Despite the " 'strong presumption' in favor of [California]" based on Plaintiffs' California residence (citing National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal.App.4th 902, 926-927 (NFL)), Mexico is a suitable forum, and on balance both the private and the public "interest factors" weighed in favor of Mexico as the more convenient forum (citing Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751-752 (Stangvik)).
As for the suitability of the Mexico forum, the court relied on Defendant's waiver of any applicable statute of limitations and the testimony from Defendant's legal expert that Mexico would be a suitable forum. In their opposition in trial court, Plaintiffs did not contend that Mexico was an unsuitable place for trial.
As for the private interest factors of the litigants, the court described the analysis as a determination "where the trial and enforcement of any judgment will be most expeditious and least expensive." In concluding that the private interest factors "tilt in Defendant's favor," the court made findings of fact, which we discuss at part II.B.1., post.
As for the public interest factors, the court described the analysis as a consideration of "overburdening local courts, protecting the interests of jurors from deciding cases in which the local community has little concern[,] and weighing the competing interest of California and the alternative jurisdiction in the litigation." In concluding that the public interest factors "tilt in Defendant's favor," the court made findings of fact, which we discuss at part II.B.2., post.
Plaintiffs timely appealed from the trial court's order granting Defendant's motion to stay the action. (§ 904.1, subd. (a)(3) [an appeal may be taken from an order "granting a motion to stay the action on the ground of inconvenient forum"].)
II. DISCUSSION
On appeal, Plaintiffs argue that the trial court abused its discretion in ordering a stay of the action. We disagree. As we explain, the court applied the proper legal standard, and substantial evidence supports the findings made; thus, the court's exercise of discretion was informed and neither arbitrary, capricious, nor beyond the bounds of reason. A. Law
The statute under which Defendant brought its motion provides in part that, if the trial court finds "the interest of substantial justice" requires that a lawsuit filed in California be heard elsewhere, the court may stay the California action on any just conditions. (§ 410.30, subd. (a).) This statute codifies the common law doctrine of forum non conveniens, which 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." (Stangvik, supra, 54 Cal.3d at p. 751.) "In determining whether to grant a motion based on forum non conveniens, a [trial] 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." (Ibid.)
On appeal, Plaintiffs do not contest the trial court's legal ruling that Mexico is a suitable forum. Thus, in our analysis, post, we proceed to review the court's rulings that, on balance, the interests of the litigants and the interests of the public "tilt in Defendant's favor."
We review the grant of a section 410.30 forum non conveniens motion for an abuse of discretion, according "substantial deference" to the trial court's determination. (Stangvik, supra, 54 Cal.3d at p. 751, citing Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 257.) Where, as here, we are reviewing the grant of a forum non conveniens motion in an action not based on a contract with a forum selection clause, the abuse of discretion standard "measures whether the act of the lower tribunal is within the range of options available under governing legal criteria in light of the evidence before the tribunal." (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680 (Cal-State).) Thus, we determine whether the court's ruling " ' "exceed[ed] the bounds of reason," ' " after considering all of the circumstances before it; if not, we affirm the ruling regardless how we might have decided the issue in the first instance. (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 447 (Quanta Computer) [review of grant of forum non conveniens motion].)
The abuse of discretion standard also includes a substantial evidence component. In part, this is because, in " ' "follow[ing] established legal principles" ' " in the exercise of its discretion, a trial court must " ' "base its findings on substantial evidence." ' " (In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 590 (Pasco).) "We defer to the trial court's factual findings so long as they are supported by substantial evidence, and determine whether, under those facts, the court abused its discretion. If there is no evidence to support the court's findings, then an abuse of discretion has occurred." (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)
As particularly applicable here given Plaintiffs' arguments on appeal, "[w]e do not review the evidence to see if there is substantial evidence to support the losing party's version of events, but only to see if substantial evidence exists to support the [finding] in favor of the prevailing party. Thus, we only look at the evidence offered in [Defendant's] favor and determine if it was sufficient." (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245 (Pope).) So long as substantial evidence supports the trial court's findings, "it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.) "If the record demonstrates substantial evidence in support of the [ruling on appeal], we must affirm even if there is substantial contrary evidence." (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 582.) In short, "the evidence most favorable to [the ruling on appeal] must be accepted as true and conflicting evidence must be disregarded." (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118 (Campbell); accord, (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard) ["we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing"].)
In determining the sufficiency of the evidence, we "may not weigh the evidence or consider the credibility of witnesses." (Campbell, supra, 32 Cal.3d at p. 118.) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not necessarily establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890).
We presume that the trial court's order granting the forum non conveniens motion is correct. (Quanta Computer, supra, 21 Cal.App.5th at p. 447.) As in any appeal from the trial court's exercise of discretion, the appellant has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) B. Analysis
We next consider whether the trial court abused its discretion in finding, based on the evidence and arguments presented, that, upon balancing the private interests of the parties and the public interests, Plaintiffs' complaint will be more appropriately and justly adjudicated in Mexico.
In their opening brief, prior to discussing the private or public factors Plaintiffs contend are at issue, Plaintiffs argue that, as residents of California, their choice of a California forum "is entitled to great weight"—citing Stangvik, supra, 54 Cal.3d at page 754 (an in-state "plaintiff's choice of a forum should rarely be disturbed unless the balance is strongly in favor of the defendant"); NFL, supra, 216 Cal.App.4th at page 917 (same); and Gulf Oil Corp. v. Gilbert (1947) 330 U.S. 501, 508 ("unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed"). While Plaintiffs accurately state the law and accurately cite authorities in support of the statement, the presumption is not one that directly affects our review. It is but one of the factors to be considered in the balance of convenience that is handled by the trial court in the first instance as part of that court's analysis of the private interest factors. (Gulf Oil, at p. 508.) In conducting a forum non conveniens analysis, the trial court has the "duty to weigh and interpret evidence and draw reasonable inferences therefrom." (NFL, at p. 918.) In contrast, the appellate court may not weigh (or reweigh) evidence (Campbell, supra, 32 Cal.3d at p. 118); and the only inferences we may consider are those that support the order on appeal (Howard, supra, 72 Cal.App.4th at p. 631). Here, prior to issuing its findings and conclusions, the trial court specifically acknowledged that, "where the plaintiff is a California resident, there is a strong presumption in favor o[f] plaintiff's choice of forum" (citing NFL, supra, 216 Cal.App.4th at pp. 926-927). Thus, we are satisfied that the court applied the correct presumption in exercising its discretion. Now, on appeal, we are reviewing the trial court's decision—i.e., the trial court's ruling after having weighed and applied the evidence in the context of a specified presumption—for an abuse of discretion.
The justification for such deference is twofold: (1) "if the plaintiff is a resident of the jurisdiction in which the suit is filed, the plaintiff's choice of forum is presumed to be convenient"; and (2) "a state has a strong interest in assuring its own residents an adequate forum for the redress of grievances." (Stangvik, supra, 54 Cal.3d at pp. 754-755.)
1. Plaintiffs Did Not Meet Their Burden of Establishing That the Trial Court Abused its Discretion in Ruling That the Private Interest Factors Weigh in Favor of the Litigation Proceeding in Mexico
The private interest factors in determining whether to grant a forum non conveniens action "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." (Stangvik, supra, 54 Cal.3d at p. 751.) Indeed, the trial court cited this exact standard (see pt. I.D., ante); and on appeal, Plaintiffs also rely on these same criteria. Thus, we proceed to determine whether the court's finding that the private interest factors weigh in Defendant's favor are supported by substantial evidence. As we explain, they are; and Plaintiffs' suggestions to the contrary are not persuasive given the record before the trial court.
We begin with the findings of the trial court in support of the court's ruling that the private interest factors weigh in favor of litigating the dispute in Mexico: "[A]ll the employees still working for [Defendant] that have any knowledge of the claims made by the [Zermeno] estate . . . or by the family of [the Decedent] . . . are located in Mexico"; "all the original documents pertaining to the claims made by the Zermeno estate or [D]ecedent's estate are located in Mexico"; "all the controlling documents pertaining to the . . . [P]olicy are in Spanish"; "Defendant is headquartered in Mexico"; "the [P]olicy only covers accidents that occur in Mexico"; "the settlement agreement with [D]ecedent's children, who live in Mexico, is entirely in Spanish." As properly cited by the trial court, each of these findings is fully supported by the testimony or exhibits offered by Defendant's claims manager. Since we look only at the evidence in support of the court's finding (Pope, supra, 229 Cal.App.4th at p. 1245)—accepting it as true while disregarding conflicting or contrary evidence (Campbell, supra, 32 Cal.3d at p. 118; Howard, supra, 72 Cal.App.4th at p. 631)—we have no difficulty concluding that this evidence is substantial to support the trial court's finding as to the private interest factors.
In this latter regard, the trial court also relied on Defendant's accompanying argument that "the testimony of [D]ecedent's children with respect to the settlement is critical to [Defendant's] defense in this action."
We now turn to Plaintiffs' various arguments, each of which we reject for the reasons explained.
First, Plaintiffs object to Defendant's claims manager's testimony on the basis that the claims manager "is incompetent to testify" due to "her lack of personal knowledge" related to the convenience of the parties. More specifically, Plaintiffs point out that, in her declaration, the claims manager "does not state that she reviewed, supervised, or worked the file, made or approved of any decisions with regard to the defense/indemnity of the Zermeno Estate, considered or rejected Plaintiffs' settlement demands, is a witness to any of the events that are the subject matter of this lawsuit, or that her job duties included those of a custodian of records." However, by failing to object to this evidence in the trial court, Plaintiffs have forfeited appellate consideration of the admissibility of the evidence. (Evid. Code, § 353, subd. (a); Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726 (Duronslet) [appellant forfeited appellate review, since "[a]t no point before or during the hearing did [appellant] object . . . to [respondent's] declaration"].) In part, that is because "[l]ack of such objection deprives the proponent of the evidence an opportunity to establish a better record or some alternative basis for admission." (Duronslet, at p. 726.)
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353.)
In their reply brief, Plaintiffs acknowledge that they failed to file a "formal" objection, suggesting—without citing authority—that three specific statements they made during the trial court proceedings were sufficient to preserve an evidentiary objection. We disagree. None of the three statements can be considered "a timely objection making clear th[e] specific ground" as required by Evidence Code section 353, subdivision (a). (Duronslet, supra, 203 Cal.App.4th at p. 726.) At best, each of the three statements is an argument that Defendant did not present substantial evidence in support of its position.
In their trial court points and authorities, Plaintiffs stated: "[Defendant's] brief does not include, as it must, any evidence in the form of sworn testimony or documents to support its position that the location of the plane crash is material to the convenience issue' "; and "[Defendant's] argument that the 'bulk' of the witnesses are located in Mexico is inaccurate and unsubstantiated in its paperwork." At oral argument, as part of Plaintiffs' contention that the court should not focus on the number of witnesses, but rather on the materiality of each witness's intended testimony, counsel stated: "I submit to you that the speculation that there is a bunch of people in Mexico that worked on this file is not supported by the record, and the record is all this court must contemplate in making its determination."
Second, in a related argument, Plaintiffs contend that, because Defendant's claims manager's testimony was "made without personal knowledge," the trial court "should have disregarded the information" in her declaration. (Bolding omitted.) Initially, Plaintiffs' premise (that the testimony was made without the witness's personal knowledge) is belied by the record. In the second sentence of her declaration, the claims manager testified, "I have personal knowledge of the facts stated in this declaration . . . ." Moreover, Plaintiffs' suggestion on appeal that the trial court erred by not "disregard[ing] the information" is unfounded, because—as we just explained ante—Plaintiffs did not object; and Plaintiffs do not cite, and we are unaware of, authority that requires a trial court sua sponte to "disregard" evidence that is unobjectionable to the parties. To the contrary, without an objection the court properly admitted the evidence and, as the trier of fact, could give the evidence the appropriate weight or credence—determinations that we may not question on our substantial evidence review on appeal. (Campbell, supra, 32 Cal.3d at p. 118.)
Third, Plaintiffs claim that the trial court erred in balancing the private factors, because Defendant identified "only one witness" in Mexico who was involved in the claims handling process, whereas Plaintiffs identified five witnesses in California and two in Chicago whom Plaintiffs believe "hav[e] material information regarding the processing of the claim." Plaintiffs then proceed to argue which witnesses know what facts and why certain witnesses are more important than others. In so arguing, Plaintiffs are asking us to reweigh the evidence and—contrary to the trial court's exercise of discretion based on an application of the proper law and substantial evidence—find that the balance of the private factors are in Plaintiffs' favor. Because Plaintiffs' argument is inconsistent with appellate review for substantial evidence (Campbell, supra, 32 Cal.3d at p. 118), we reject it.
Fourth, in a related argument, Plaintiffs suggest that the trial court erred by relying on Defendant's claims manager's "generalized statements" about Defendant's employees. Testifying that "[a]ny and all employees still working for [Defendant] that have any knowledge of the claims made by the Zermeno estate or by the family of [the Decedent] are located in Mexico," Defendant's claims manager identified by name only one witness. The trial court erred in relying on such evidence, according to Plaintiffs, since a court "abuses its discretion when it grants the [forum non conveniens] motion based on a factually undeveloped record." (Italics added; bolding and capitalization omitted.) In support of their position, Plaintiffs rely on Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604. However, Plaintiffs misconstrue Ford, an insurance coverage dispute, where "[t]he issues in this matter are so poorly developed . . . [,] there is no factual basis from which it can be determined" what witnesses will be necessary. (Ford, at p. 617, italics added.) That is not the situation here; Plaintiffs do not claim the issues are undeveloped, only that Defendant did not identify its potential witnesses with sufficient particularity. Thus, Ford's statement regarding undeveloped issues is not helpful in our appellate review of the trial court's exercise of discretion under the forum non conveniens standards.
Fifth, Plaintiffs contend that the trial court erred in finding that (1) "all the original documents pertaining to the claims made by the Zermeno estate or [D]ecedent's estate are located in Mexico," and (2) "all the controlling documents pertaining to the . . . [P]olicy are in Spanish." According to Plaintiffs, "[t]here is no evidence that the bulk of the documents are located in Mexico or written in Spanish." (Italics added; bolding omitted.) Plaintiffs are wrong. The court's two findings are almost direct quotations from testimony offered by Defendant's claims manager; and in making those findings, the court cited this testimony. Plaintiffs refer us to evidence they submitted in opposition to the motion which, according to Plaintiffs, suggests that, in addition to the documents described by Defendant, the bulk of the "controlling documents" are written in English and not located in Mexico. However, in our substantial evidence review, we only look at the evidence in support of the court's finding (Pope, supra, 229 Cal.App.4th at p. 1245), we must accept "as true" all evidence favorable to the court's ruling (Campbell, supra, 32 Cal.3d at p. 118), and we must "disregard" all conflicting evidence (Howard, supra, 72 Cal.App.4th at p. 631). Thus, because the record contains substantial evidence in support of the two challenged findings, the court did not abuse its discretion in determining the private factors weighed in favor of Defendant.
Defendant's claims manager testified: "All original documents pertaining to the claims made by the Zermeno estate or by the family of [the Decedent] are located in Mexico"; and "All controlling documents pertaining to the insurance policy purchased by Mr. Zermeno are in the Spanish language."
Finally, Plaintiffs argue that the trial court abused its discretion by relying on "irrelevant" evidence. More specifically, Plaintiffs contend: Testimony from the Decedent's three children is irrelevant to any issues in the present litigation; and the locations of Defendant's headquarters and the scene of the crash (and Decedent's death) are irrelevant to the issue of the convenience of the parties. Once again, by failing to raise an evidentiary objection to the admission of the evidence in the trial court, however, Plaintiffs forfeited appellate consideration of the admissibility of the evidence. (Evid. Code, § 353, subd. (a); Duronslet, supra, 203 Cal.App.4th at p. 726.) Had Plaintiffs interposed an appropriate objection before the trier of fact, Defendant could have responded, the trial court would have exercised its discretion in the first instance, and we could have determined on appeal whether the trial court abused its discretion. (Duronslet, at p. 726.) Even if such evidence ultimately were inadmissible in a trial in California, at this stage of the litigation (Defendant has not answered the complaint), we do not know what forum's law will be applied at trial. On this record, therefore, we cannot conclude as a matter of law that testimony from the Decedent's three children is irrelevant to any issues in the present litigation or that the locations of Defendant's headquarters and the crash are irrelevant to any issue associated with "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). Indeed, in the context of this appeal from the forum non conveniens proceedings in the trial court, Plaintiffs' "relevance" argument is nothing more than the suggestion that we reweigh the evidence on which the court balanced the various private interest factors—which we cannot do (Campbell, supra, 32 Cal.3d at p. 118).
The Decedent's three children live in Mexico; and, in April 2017—i.e., prior to the arbitration of Plaintiffs' claims in California—they entered into a settlement and release agreement with Defendant, in Spanish, pursuant to which the children received more than $94,000 (USD) in exchange for a release.
2. Plaintiffs Did Not Meet Their Burden of Establishing That the Trial Court Abused its Discretion in Ruling That the Public Interest Factors Weigh in Favor of the Litigation Proceeding in Mexico
The public interest factors in determining whether to grant a forum non conveniens action 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, supra, 54 Cal.3d at p. 751.) As with the private interest factors, the trial court cited this same standard (see pt. I.D., ante); and on appeal, Plaintiffs also rely on these same criteria. Thus, we proceed to determine whether the court's finding that the public interest factors weigh in Defendant's favor are supported by substantial evidence. As we explain, they are; and Plaintiffs' suggestions of error are not persuasive given the record before the trial court.
The trial court's express findings include the following: "[T]he . . . [P]olicy . . . was made pursuant to the Civil Laws of Mexico"; "its provisions provide for procedures for the resolution of disputes that have no counterpart in California law e.g., Expert Opinion Clause"; "many pertinent documents e.g., email communications, claim adjustment documents, and official policy documents, would require the provision of certified translations since many of these documents are currently only in Spanish." Each of these findings is supported by substantial evidence contained in the claims manager's declaration at paragraphs 3 and 11 and attached exhibit B. Together, they support the trial court's ultimate finding (that on balance the public interest factors weigh in favor of proceeding in Mexico) in the context of Defendant's arguments in support of the forum non conveniens motion. In short, Defendant argued that the San Diego court and community would be "overburdened" by a matter which does not concern California defendants, where California law is not implicated, and where the accident that triggered an alleged entitlement to insurance benefits did not occur in California. (See Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1039 ["Jurors should not be required to decide a case based on [foreign] law with which they have little or no concern"].)
Based on the English translation of Policy provisions that were before the trial court, the court reached the legal determination that certain procedures for dispute resolution under the Policy, "e.g., Expert Opinion Clause," have no equivalent in California law.
We now turn to Plaintiffs' arguments, each of which we reject for the reasons explained.
First, Plaintiffs emphasize that the matters at issue in this litigation "are of great concern to the local community and this state." In particular, Plaintiffs rely on the following: Defendant has a "substantial presence" in California through agents that market Defendant's product in California; California has an interest in providing relief for its residents when an insurer denies a claim; and the wrongful conduct occurred in California. Such a presentation, even if supported by substantial evidence and the law, does not establish reversible error, because it does not take into consideration the applicable standard of appellate review. Defendant does not argue that the court applied incorrect legal principles or that the court's findings are unsupported by substantial evidence—as required on appeal to establish an abuse of the trial court's exercise of discretion (Quanta Computer, supra, 21 Cal.App.5th at p. 447; see Pasco, supra, 42 Cal.App.4th at p. 590). By once again relying on the evidence in support of the ruling they wanted the court to make, instead of demonstrating the error in the ruling actually made, Plaintiffs have not met their burden on appeal. (Campbell, supra, 32 Cal.3d at p. 118; Howard, supra, 72 Cal.App.4th at p. 631.)
Next, Plaintiffs argue that the "Expert Opinion Clause" contained in the Policy—a provision which has "no counterpart in California law" according to the trial court's ruling which Plaintiffs do not challenge on appeal—does not apply to the three causes of action they brought as judgment creditors of the Zermeno estate. In those causes of action, Plaintiffs assert statutory claims that Plaintiffs contend do not require a determination of Policy provisions. (See Ins. Code, § 11580, subd. (b).) A reasonable inference from the trial court's ruling, however, is that, since the other two of Plaintiffs' causes of action are brought as assignees of the Zermeno estate for failure to defend or indemnify the estate in the Wrongful Death Action, the "Expert Opinion Clause" does apply to the presentation and/or resolution of those claims. Again, Plaintiffs' appellate argument requires us to consider and weigh the strength of the evidence Plaintiffs presented to the trial court, which is beyond the scope of our appellate review here. (Campbell, supra, 32 Cal.3d at p. 118.) Because Plaintiffs' comments regarding the "Expert Opinion Clause" do not suggest either that the court applied incorrect legal principles or that the court's findings are unsupported by substantial evidence, Plaintiffs have not met their burden of establishing that the trial court abused its discretion. (Quanta Computer, supra, 21 Cal.App.5th at p. 447; see Pasco, supra, 42 Cal.App.4th at p. 590.)
Finally, Plaintiffs argue that, contrary to the trial court's ruling, "[t]here is . . . no guarantee that Mexican Civil Law applies" to their claims. However, the trial court did not rule that Mexican Civil Law applies to their claims. The court stated only that "Defendant presented evidence that the . . . [P]olicy . . . was made pursuant to the Civil Laws of Mexico," expressly taking into consideration Plaintiffs' position and retaining jurisdiction over the parties and the cause: "[S]hould the courts of Mexico find that Mexican law does not apply to some or all of the claims being asserted in this action, Plaintiffs will be able to return to this Court to address those claims after the parties have adjudicated what can be adjudicated in Mexico." (See Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1192.)
Plaintiffs argue against an application of what they consider the Policy's provision for the choice of Mexico law, suggesting that "[t]he protection of California residents from injury caused by the unscrupulous practices of insurance carriers that profit from premiums paid in California constitutes a sufficient interest to apply California law." The one case on which they rely, however, does not involve section 410.30 generally or the application of the forum non conveniens doctrine generally. In Haisten v. Grass Valley Medical Reimbursement Fund, Ltd. (9th Cir. 1986) 784 F.2d 1392, the choice of law issues included: (1) the effect of a contractual provision for the choice of foreign law in the determination of a nonresident's minimum contacts with California for purposes of due process and personal jurisdiction (id. at pp. 1399-1400); and (2) what forum's law to apply under federal conflict-of-laws principles (id. at pp. 1402-1403). On the present record, we are making no determination on the choice of substantive law to be applied to Plaintiffs' claims.
III. DISPOSITION
The order granting Defendant's motion to stay the action pursuant to section 410.30, subdivision (a), is affirmed. Defendant is entitled to its costs on appeal. (Cal. Rule of Court, rule 8.278(a)(2).)
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.