Opinion
B193243
4-24-2007
LARRY BALLINGER, et al., Plaintiffs and Appellants, v. LOCKHEED MARTIN AERONAUTICS COMPANY, INC., Defendant and Respondent.
Gary Rand, Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis for Plaintiffs and Appellants. Ballard, Rosenberg, Golper & Savitt, Richard S. Rosenberg, Jeffrey P. Fuchsman and John J. Manier for Defendant and Respondent.
NOT TO BE PUBLISHED
Plaintiffs and appellants Larry Ballinger (Ballinger) and Carol Ballinger (collectively, plaintiffs) appeal from an order granting defendant and respondent Lockheed Martin Corporations (Lockheed) motion to dismiss or stay for forum non conveniens. Plaintiffs did not file an opposition to Lockheeds motion until the afternoon before the motion was scheduled to be heard, and the trial court denied plaintiffs ex parte applications requesting a continuance and/or asking the court to consider the late-filed opposition. Finding Lockheeds motion unopposed, the trial court granted the motion on the ground that plaintiffs did not meet their burden to show that enforcement of a forum selection clause, in which Ballinger consented to jurisdiction in Maryland, would be inconvenient. On appeal, plaintiffs contend that the trial court erred by denying their ex parte applications and that the contract and/or the provision Lockheed relied upon in its motion are not enforceable. We affirm the order.
BACKGROUND
Our discussion of the factual background is based upon the allegations of the complaint and the evidence presented to and considered by the trial court in Lockheeds motion to dismiss or stay.
Lockheed is incorporated in the State of Maryland and has its corporate headquarters in Bethesda, Maryland. Lockheed Martin Aeronautics Company (Lockheed Aeronautics), an unincorporated component of Lockheed, is located in Palmdale, California.
Ballinger was employed by Lockheed, either as a permanent employee or as a consultant, from 1978 until 1990 and from 1992 until his employment was terminated in March 2005. During much of this time, Ballinger worked on overseas assignments. In November 2003, Ballinger was offered and accepted an overseas assignment in the "U-2 Program" at a location identified as "Detachment 1." Jim Musgrave, the U-2 Program Field Manager, asked Ballinger if he would agree to change locations, to Detachment 4, as a favor to Musgrave. Musgrave told him that it would be more difficult to find an employee willing to work at Detachment 4 because it was a less safe location than Detachment 1. Ballinger told Musgrave that he would not agree to take the Detachment 4 position unless he received some assurance that he would not be terminated from employment at Lockheed when his assignment ended. Musgrave told him that if at the end of a year he was not happy with the assignment at Detachment 4, he could "return to Palmdale" and a position would be made available for him. Ballinger agreed to take the position at Detachment 4.
At the time Ballinger agreed to take the Detachment 4 position, he was assured that he would receive certain pay and benefits. He also was given a "Memorandum of Understanding" (MOU) confirming the terms and conditions of his employment. The MOU stated, among other things, that Lockheed "may find it necessary at any time to . . . change the provisions of the expatriate compensation package, with appropriate notification period."
After completing the required pre-employment training courses, Ballinger traveled to Detachment 4 on January 7, 2004. He returned to the United States (specifically, to Beale Air Force Base in northern California) to complete additional training and a required physical examination in November 2004. When he returned to Detachment 4 in December 2004, he was informed that while he was away Lockheed had changed the expatriate compensation package by eliminating or decreasing certain pay and benefits. Ballinger protested the changes, contending Lockheed breached his contract because it had not notified him in advance. He contacted Musgrave, who proposed a job swap with an employee who worked at Beale Air Force Base. Ballinger agreed, but then learned that the job at Beale was a temporary assignment that did not include benefits such as housing or a vehicle allowance. He asked for the permanent position he had been promised, and Musgrave referred Ballinger to two positions in Palmdale that might be available. Ballinger applied for those positions but was not offered either of them.
Ballinger took vacation time and returned to the United States to meet with Human Resources personnel to discuss his situation. He met with Musgrave and Karen Smith, a Human Resources Business Partner assigned to Lockheed Aeronautics in Palmdale, in late February 2005. He subsequently received an email from Smith telling him "the matter was now `closed." On February 26, 2005, Lockheed cancelled his medical insurance. Ballinger made repeated telephone calls to Smith "in an attempt to resolve these issues."
According to Smith, during one such call, on March 1, 2005, Ballinger became agitated and told her he was "about ready to kill someone." Smith construed this statement as a potential threat of violence, and Lockheed issued a security alert and convened a Human Resources committee to address Ballingers conduct. The committee decided to terminate Ballingers employment for misconduct based upon the threat he made during his March 1 telephone call to Smith. Smith informed Ballinger of the termination in a letter dated March 18, 2005.
Plaintiffs filed a complaint against Lockheed, Lockheed Aeronautics, and Smith, alleging ten causes of action. Nine of the causes of action are brought by Ballinger and one, for loss of consortium, is brought by his wife, Carol. Lockheed filed a motion to dismiss or, alternatively, to stay the action for forum non conveniens. The motion, which Lockheed served by mail on plaintiffs counsel on May 15, 2006, was scheduled to be heard at 8:30 a.m. on June 16, 2006. Plaintiffs opposition was due on June 5, 2006. (Code Civ. Proc., § 1005, subd. (b).)
According to Smiths declaration filed in support of Lockheeds motion, Lockheed Aeronautics is not a separate legal entity, and she was never served with the complaint. The complaint alleges that Lockheed is Lockheed Aeronautics successor in interest, and refers to Lockheed and Lockheed Aeronautics collectively as "Lockheed Martin."
On June 8, Lockheed filed and served by Federal Express for overnight delivery a notice of plaintiffs failure to serve opposition to Lockheeds motion. A week later, on June 15 (the day before the scheduled hearing on Lockheeds motion), plaintiffs filed an ex parte application for an order continuing the hearing on Lockheeds motion and allowing plaintiffs opposition to be filed. The application included a declaration from Suzanne E. Rand-Lewis, an attorney from the law office representing plaintiffs. Rand-Lewis stated that she had undergone medical treatment over the previous three months that required her to be away from her office at unspecified times. She returned to the office "in late May" and was ordered to begin trial on May 30 in an unrelated matter. She began to draft the opposition to Lockheeds motion before she began that trial and hoped to complete it during the trial (which lasted until June 12 or 13), but she was unable to complete it. She stated that she was the only attorney handling the motion, that there was no other attorney in her office who could complete the opposition, and that she needed at least two weeks to complete and file it.
Rand-Lewiss declaration states that the trial ended "midday Monday June 13, 2006." June 13, 2006 was a Tuesday.
In opposing plaintiffs ex parte application, Lockheed noted that Gary Rand, not Rand-Lewis, was listed on the complaint as plaintiffs attorney of record, and that plaintiffs application did not assert that Rand had been unavailable to prepare an opposition to Lockheeds motion. Lockheed also provided the court with a copy of a May 5, 2006 letter from Gary Rand to Lockheeds counsel in which Rand informed counsel that he would be out of the office until May 17 and would respond to further requests after that date. In addition, Lockheed provided the declaration of one of its attorneys, stating that no one from Rand-Lewiss office contacted Lockheeds counsel before June 14 to inform them about Rand-Lewiss inability to prepare an opposition or to seek a continuance of the hearing on Lockheeds motion.
The trial court denied plaintiffs ex parte application. In its order, the court stated: "Plaintiffs ex parte application is denied. Opposition is already past due; hearing is tomorrow. This application is untimely. Other lawyers could do work. No showing that same emergency arose RECENTLY, or even during the time opposition was due. Insufficient showing under CRC 379(h)." Later that same day, June 15, plaintiffs filed an opposition to Lockheeds motion and objections to the evidence Lockheed presented in support of its motion.
The following day — the day of the hearing on Lockheeds motion — plaintiffs filed a second ex parte application requesting that the trial court consider their late-filed opposition and objections to evidence. Plaintiffs asserted that this application was different than the first application because the first application asked for a continuance to give them more time to file an opposition, whereas the second application asks only that the now-filed opposition be considered; it seeks a continuance "only if necessary." The second application also included a declaration from Rand-Lewis. Except for the preliminary paragraphs, the declaration was virtually identical to the declaration attached to the first ex parte application. The only significant additions were addressed to the trial courts statement in its minute order denying the first application, that "Other lawyers could do work." Rand-Lewis declared "There is no other attorney in my office sufficiently knowledgeable as to the complex law in this area and as to how the complex facts of Plaintiffs [sic] employment apply thereto. My husband Tim Rand-Lewis has his own law practice and only rarely makes appearances as a contract attorney and usually in Federal Court. He was not available to assist with this Opposition due to his own work." The declaration did not specifically address Gary Rands availability to prepare the opposition, nor did it provide dates on which Rand-Lewis was unavailable to work due to her medical treatment.
The trial court did not consider plaintiffs second ex parte application before the hearing on Lockheeds forum non conveniens motion. In ruling on Lockheeds motion, the court refused to consider plaintiffs untimely opposition or argument on the merits. The court found the motion to be unopposed, and found that "plaintiff has not provided any evidence by affidavit or otherwise even as to his residence, and has not met the burden to show that the forum to which he agreed is somehow inconvenient." The court granted the motion, stayed the matter for 90 days to allow plaintiffs to file their lawsuit in the proper forum, and set an order to show cause re dismissal on September 20, 2006. Following its ruling on Lockheeds motion, the trial court ruled on plaintiffs second ex parte application, and denied the application as untimely. Plaintiffs timely filed a notice of appeal from the order granting Lockheeds motion.
DISCUSSION
A. Denial of Plaintiffs Ex Parte Applications
Plaintiffs contend the trial court committed reversible error by denying their ex parte applications requesting a continuance to allow them to file an opposition to Lockheeds motion. They are incorrect.
"The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial courts exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.] The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred." (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.)
Plaintiffs argue that their attorneys sworn declarations established good cause for the continuance because they show that "she was the only attorney in her two attorney office knowledgeable about the issues presented by [Lockheeds] motion, that she had been undergoing medical testing and procedures for the three months prior to the hearing on [Lockheeds] motion, and that she had been engaged in trial for the two weeks immediately preceding the motion hearing." Plaintiffs assert the trial court "essentially ignored" these declarations in denying their applications. The courts minute order denying the first application shows otherwise.
Rather than ignoring counsels declaration, the minute order shows the trial court carefully read it and Lockheeds opposition to the application. As the opposition noted, Gary Rand was the attorney of record identified on the caption of the complaint. (We note that Rand also signed the complaint.) Moreover, Lockheed submitted to the court a letter its attorney received from Rand, indicating that he would be in his office and prepared to respond to Lockheeds requests for documents and information beginning May 17, 2006 — two days after Lockheed served its motion on plaintiffs, and 19 days before plaintiffs opposition was due. Yet plaintiffs first application failed to even acknowledge Rands participation in the case, let alone demonstrate that Rand was unable to work on the opposition during that time. Thus, it was reasonable for the trial court to conclude that there was at least one other attorney who could have prepared a timely opposition.
Although plaintiffs second application does mention Rand, it does not provide any information as to why he was unable to work on the opposition before it was due. At most, the declaration shows that Rand was busy with work on other cases during the last few days before the opposition was due — it states that Rand had to respond or oppose eight motions in other cases in the two weeks before the hearing on the application, but that hearing took place 10 days after the opposition was due.
It also was reasonable for the court to find that plaintiffs failed to show that Rand-Lewis medical issues arose "RECENTLY, or even during the time opposition was due." Rand-Lewis declared that she had biopsies taken on March 15, 2006, had surgery shortly after that (she did not provide a date for the surgery), and thereafter (again, she provided no specific date) had a severe reaction to medication she took as part of her recovery, which prevented her from returning to work for some period of time. She stated that she returned to work "in late May" and began to draft the opposition sometime before her trial commenced on May 30. She also stated that she became ill at some point (again, unspecified) during the trial, which lasted from May 30 until June 13. In short, Rand-Lewis declaration did not establish that Rand-Lewis was unavailable to prepare the opposition between May 15, when it was served, and June 5, when it was due.
We note that plaintiffs did not cure these defects in their second ex parte application.
Finally, in addition to failing to make an adequate showing that neither Rand nor Rand-Lewis were available to prepare a timely opposition, plaintiffs waited until the day before the hearing on Lockheeds motion to seek relief. No explanation was provided for their delay. In light of the inadequacy and untimeliness of their ex parte applications, it cannot be said that the trial court abused its discretion in denying their requests for a continuance.
B. Granting of Lockheeds Forum Non Conveniens Motion
A motion to dismiss or stay based upon forum non conveniens can be brought on two grounds: a contractual forum selection clause, or the traditional ground, i.e., that the forum in which the action was filed is an inconvenient forum. (Intershop Communications AG v. Superior Court (2002) 104 Cal.App.4th 191, 198.) When the motion is brought on the ground that there is a mandatory forum selection clause, the burden is on the plaintiff to show that enforcement of the clause would be unreasonable under the circumstances of the case. (Ibid.; see also Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 (Berg).) When the motion is brought on the traditional ground, the defendant bears the burden to show that the forum selected by the plaintiff "is a seriously inconvenient forum." (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611.)
Where the forum selection clause is permissive, rather than mandatory, the traditional analysis applies and defendant bears the burden of proof. (Berg, supra, 61 Cal.App.4th at pp. 358-359.)
In the present case, Lockheed brought its forum non conveniens motion on both grounds. First, Lockheed argued that Ballinger was bound by the choice of law and forum selection clause in the MOU. Lockheed contended that under this provision, Ballinger agreed that any claims related to his employment must be brought in Maryland. Second, Lockheed argued that even if the forum selection clause is not dispositive, its motion should be granted under a traditional analysis because "both public policy and the parties convenience would be best served if the instant matter were litigated in Maryland rather than California."
That provision states: "In the event of any disputes between the parties hereto regarding the interpretation or enforcement of any terms of this Agreement, or any other issue regarding employment, the parties will attempt to resolve their differences with mutual cooperation and/or mediation. [¶] Should there be any disputes, for what ever reason, then it is understood that the terms and conditions of your employment as described herein have been negotiated in the United States and as such all questions of interpretation and remedy will be governed by the Laws of the United States in general, and the State of Maryland in particular. If the parties fail to resolve their differences with mutual cooperation and/or mediation, and the matter proceeds to litigation, both you and the Company agree to consent to jurisdiction of the judicial courts of the State of Maryland and the United States District Court of the District of Maryland."
In support of its motion, Lockheed submitted the declaration of Karen Smith, the Human Resources Business Partner with whom Ballinger met in February 2005 and who informed Ballinger in March 2005 that his employment was terminated. Smith stated that she was responsible for providing human resources support and guidance to Lockheed, including Lockheed Aeronautics, and had direct access to personnel records and files pertaining to employees assigned to Lockheed Aeronautics, including Ballinger. She also stated that: (1) Lockheed is incorporated in the State of Maryland and has its corporate headquarters in Bethesda, Maryland; (2) during his assignment at Detachment 4, Ballinger did not perform any job functions in California other than four days of training and an annual physical examination at Beale Air Force Base in northern California; (3) the Lockheed customer for whom Ballingers assignment was being performed was Robins Air Force Base in Georgia; (4) during Ballingers assignment, his residence address was in Bullhead City, Arizona, which is the address to which she sent the letter terminating his employment; (5) the MOU governing the terms and conditions of Ballingers employment in his assignment was prepared and issued by Lockheeds International Human Resources Department, located at corporate headquarters in Maryland; and (6) the statements upon which Ballingers misrepresentation and Consumer Legal Remedies Act claims are based were prepared and authorized by employees at corporate headquarters in Maryland. Smith also attached to her declaration copies of the MOU regarding Ballingers assignment at Detachment 4 and the letter terminating Ballingers employment.
Smith declared that although she was not involved in preparing or issuing the MOU, she was familiar with its provisions.
As discussed, ante, plaintiffs did not submit a timely opposition to Lockheeds motion, and the trial court declined to consider plaintiffs untimely submissions. The court ultimately found that Ballinger "has not met the burden to show that the forum to which he agreed is somehow inconvenient," and granted Lockheeds motion. In so ruling, the court impliedly found that the contractual provision upon which Lockheed relied was a mandatory forum selection clause.
Regardless of the ground on which it is brought, a forum non conveniens motion is addressed to "`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." (Ford Motor Co. v. Insurance Co. of North America, supra, 35 Cal.App.4th at p. 610.) The trial court exercises its discretion appropriately, and its ruling will be affirmed, "when `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." (Ibid.; see also America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 9 [finding abuse of discretion standard of review applies to all rulings on forum non conveniens motions]; but see Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680-1681 [applying substantial evidence standard of review where motion based upon forum selection clause].)
On appeal, plaintiffs do not challenge the trial courts implied finding that there was a mandatory forum selection clause. Although plaintiffs state in the "standard of review" section of their appellants opening brief that the appellate court "decides the threshold issue of whether a forum selection clause is mandatory or permissive de novo, independent of the trial courts ruling," they make no argument that the clause was permissive. Therefore, we review the courts ruling granting Lockheeds motion for an abuse of discretion. In doing so, we examine the record before the trial court at the time it made its ruling.
The trial court had before it the MOU, which was authenticated by Smith, who had access to Ballingers personnel records. Smith declared under oath that she was familiar with the provisions of the MOU, which set forth the terms and conditions of Ballingers employment at Detachment 4. The MOU included an attachment signed by Ballinger. Ballinger alleged in the complaint that he was given the MOU. The MOU contained a provision stating that any disputes regarding the interpretation or enforcement of any terms of the MOU or any other issue regarding employment will be governed by Maryland law and that if any dispute proceeds to litigation, Ballinger and Lockheed agree to consent to jurisdiction of the state and federal courts in Maryland. In light of the trial courts denial of plaintiffs ex parte applications — which we have found did not constitute an abuse of discretion — the court had before it no opposition or evidence from plaintiffs. Given the Supreme Courts instruction that a forum selection clause should be enforced unless the plaintiff shows that enforcement of that clause would be unreasonable (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 495-496; see also The Bremen v. Zapata Off-Shore Co. (1972) 407 U.S. 1, 15), the trial courts ruling enforcing the forum selection clause in this case was not an abuse of discretion.
DISPOSITION
The order is affirmed. Lockheed shall recover its costs on appeal.
We concur:
MANELLA, J.
SUZUKAWA, J.