Opinion
B159236.
7-14-2003
THERESE HETTIG et al., Plaintiffs and Appellants, v. ELSINORE CORPORATION et al., Defendants and Respondents.
Law Offices of Richard F. Seitz, S. Alon Beker, Casey T. Shim and Richard F. Seitz for Plaintiffs and Appellants. Law Offices of Joel F. Citron and Joel F. Citron for Defendants and Responents.
A California couple appeals from an order granting a motion to stay for forum non conveniens supporting a Las Vegas, Nevada, hotel and casinos claim Nevada was a more convenient forum to hear the case. The couple argues the moving party failed to produce any evidence California was an inconvenient forum and, therefore, the trial court abused its discretion in granting the motion. The record indicates the trial court had sufficient facts to support its order to stay the proceedings pending transfer to superior court in Nevada. Accordingly, we conclude the trial court did not abuse its discretion in granting the motion. We thus affirm.
FACTS AND PROCEEDINGS BELOW
On February 23, 2001, Therese and Charlie Hettig (appellants-plaintiffs) were staying in Las Vegas, Nevada, at the Four Queens Hotel and Casino, which is owned and operated by Elsinore Corporation (respondents-defendants). The Hettigs, both in their mid-60s, live in Torrance, California, and they have been members of Four Queens "Real Winners Club" since 1985. Elsinore Corporation is a Nevada corporation and its principal place of business is located in Las Vegas, Nevada. Beyond marketing and advertising activities, Elsinore Corporation does not conduct any business in California.
At approximately 1:30 p.m., Mrs. Hettig allegedly tripped on a wave of loose, bubbled carpeting in the hotels 10th floor elevator lobby. She fell into a wall and was knocked temporarily unconscious from the impact. As she lay unconscious, an unidentified thief took some money from her person. She also suffered various injuries including chipped teeth, black eyes, and a bruised knee. Emergency medical technicians (EMTs) provided on-site care then took Mrs. Hettig to a local hospital.
Approximately six months later, the Hettigs returned to the Four Queens Hotel and Casino for a three-night stay.
Prior to filing suit, appellants counsel sent a demand letter to respondents insurance carrier. This letter asserted (1) at the time of the accident a hotel security guard and one of the EMTs had both acknowledged the loose carpeting had caused Mrs. Hettig to trip and fall, (2) a second EMT had told the Hettigs she had noticed the loose carpeting in the hallway just outside the elevator which Mrs. Hettig had exited, and (3) the incident was reported to Four Queens front office manager.
One day before the running of the California statute of limitations, appellants filed a negligence complaint in Los Angeles County Superior Court, seeking damages for Mrs. Hettigs injuries and Mr. Hettigs loss of consortium. Respondents replied with motions (1) to dismiss for lack of personal jurisdiction, (2) to dismiss or transfer to proper venue, and (3) to stay or dismiss on grounds of inconvenient forum. At close of the hearing on these motions, the trial court denied the first two motions and granted the third. The court gave appellants the choice of whether to issue a stay or dismissal and, per their response, granted a stay for forum non conveniens pending transfer to superior court in Clark County, Nevada.
Appellants now appeal the judgment on grounds the trial court abused its discretion when it granted respondents motion.
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY GRANTING THE MOTION TO STAY.
Appellants argue respondents did not produce any evidence establishing California was an inconvenient forum, and, therefore, the trial court abused its discretion by granting respondents motion. The standard of review for this type of motion is narrow and reversals are generally limited to clearly prejudicial rulings.
Dendy v. MGM Grand Hotels, Inc. (1982) 137 Cal. App. 3d 457, 460, 187 Cal. Rptr. 95 ["Whether the doctrine should be applied in a particular case, however, rests within the discretion of the trial court whose decision will be disturbed upon appeal only when the order is unsupported by substantial evidence under apposite law," citingHemmelgarn v. Boeing Co. (1980) 106 Cal. App. 3d 576, 584, 165 Cal. Rptr. 190.].
The equitable doctrine of forum non conveniens is codified in Californias Code of Civil Procedure section 410.30: "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." According to the Supreme Courts most recent decision on the subject, "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."
Stangvik v. Shiley (1991) 54 Cal.3d 744, 751, 819 P.2d 14.
The moving party has the burden of proof on this type of motion. However, the trial court has considerable discretion to grant or deny such a motion and "substantial deference is accorded its determination in this regard." This discretion is given even greater deference when the court orders a stay rather than a dismissal. Furthermore, "in California . . . there is no requirement that the trial court make any express ruling on a motion to stay/dismiss."
But this burden is minimal. "The principal evidentiary showing Stangvik requires is that trial may be had in the alternative forum and that some form of relief may be granted . . . Examination of the private and public interests at stake involve more general considerations." Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1542.
Stangvik v. Shiley, supra, 54 Cal.3d 744, 751.
Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 411 ["The trial court, however, has considerably wider discretion to grant stays precisely because under a stay California retains jurisdiction. (Thomson v. Continental Ins. Co. [(1967) 66 Cal.2d 738, 746, 59 Cal. Rptr. 101, 427 P.2d 765].) Even an action brought by a California resident is subject to a stay. (Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 761.)"].
Campbell v. Parker-Hannifin Corp., supra, 69 Cal.App.4th 1534, 1542, citing Cal— State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1676.
A. The Trial Court Had Sufficient Facts To Perform The Balancing Test Required For A Ruling On The Motion.
To rule on a motion for inconvenient forum, the trial court must first determine a "suitable" alternate forum exists. This is a non-discretionary "threshold" evaluation of the facts to determine whether another court has jurisdiction and the cause of action can be heard there. If a suitable forum is available to the parties, the court then applies a balancing test to determine whether California or another state would be a more convenient forum. The test compares the private interests of the parties and the public interests of the forum states under consideration.
Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1036.
Under California statutory and case law, a successful motion to stay for inconvenient forum does not require an explicit showing California is a seriously inconvenient forum; rather, it requires a showing that, on balance, another forum is more convenient or has a stronger interest in deciding the cause of action. "The jurisdiction with the greater interest should bear the burden." Stangvik v. Shiley, supra, 54 Cal.3d 744, 757.
Because the hearing on the motions was the parties first and last appearance before the trial court, the only facts available to the court were those contained in the parties pleadings and statements made at the hearing on the motion. Our examination of the facts available at the time supports the trial courts ruling.
The trial court correctly determined a suitable alternative forum existed. Respondent is a Nevada-based corporation and Nevada has a two-year statute of limitations for negligence claims. At the time the motion was granted a Nevada court would have had jurisdiction over respondent and the claim could have been heard in a Nevada courthouse.
Neveda Revised Statute section 11.190.
Concerning the balancing test, the private factors a court must consider 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 [a court must consider] 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." As to appellants contention that respondents produced no evidence to support the motion, the facts available to the trial court at the time the motion was heard included:
Stangvik v. Shiley, supra, 54 Cal.3d 744, 751.
(1) A slip and fall accident and subsequent theft took place in the elevator lobby of a Las Vegas hotel and casino owned and operated by a Nevada corporation.
(2) Potential witnesses included at least one Four Queens executive officer, two Four Queens employees, two Las Vegas EMTs, the Hettigs, and a medical doctor who lived in Southern California.
(3) Appellants had visited the hotel six months after the accident.
(4) At the time the motions were filed, the condition of the elevator lobby, specifically the visibility of the defect in the carpeting, was similar to how it had been at the time of the accident.
(5) Respondent had offered to take video testimony from the California doctor, who would be testifying on the damages claim.
The court in Campbell suggested the trial court properly relied on statements made in the parties briefs and at arguments made before the court, statements which included likely witnesses to be called and the need for access to the accident site located in the alternate forum. Campbell v. Parker-Hannifin Corp., supra, 69 Cal.App.4th 1534, 1542-1543.
1. Private interest factors.
While the relative expense of trial and obtaining witnesses are neutral factors, the enforceability of judgment and ease of access to proof favor trial in Nevada. The court could have reasonably inferred a Nevada court would be more likely to be "relatively expeditious and inexpensive" when enforcing a judgment against a Nevada corporation. Appellants provided photographs of the elevator lobby indicating the carpeting was still dangerous, but trial in Nevada would be cheaper were it necessary to visit the accident site.
At the time of the hearing, neither party produced any facts indicating it would bear a financial or physical burden if required to travel for trial. Nor did either party establish the known whereabouts (since the time of the accident) of any Nevada witnesses besides the corporate officers. The hearing transcript indicated the court assumed percipient witnesses still lived in Nevada. Respondent offered to provide declarations for some witnesses, which the trial court declined. In a products liability case involving a motorcycle accident in Nevada, this court cited declarations from witnesses living in Nevada and Idaho asserting the "extreme inconvenience" of testifying in California in upholding a motion to dismiss for inconvenient forum. Rinauro v. Honda Motor Co. (1995) 31 Cal.App.4th 506, 510.
Appellants argue their status as California residents should be given extra weight and California case law dictates a plaintiffs selection of the forum should only be disturbed under extreme circumstances. However, this presumption in favor of a California plaintiffs convenience only applies to a motion to dismiss, and prior decisional law clearly indicates plaintiffs residence is but one factor a court must consider for a motion to stay.
Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 610.
Century Indemnity Co. v. Bank of America, supra, 58 Cal.App.4th 408, 412, distinguishing Ford Motor Co. Like appellants, the California plaintiff in Century Indemnity insisted that according to Ford Motor Co. ". . . the plaintiffs choice of forum is entitled to a strong presumption of appropriateness therefore a defendant must demonstrate that California is a seriously inconvenient forum." The court replied, "Because that case involved a dismissal rather than a stay, however, its test is inapplicable here."
Stangvik v. Shiley, supra, 54 Cal.3d 744, 754-756, provides a detailed discussion of the advantages and disadvantages of giving extra weight to plaintiffs choice of forum when deciding a motion for forum non conveniens. (See also Century Indemnity Co. v. Bank of America, supra, 58 Cal.App.4th 408, 411.)
This evaluation in favor of the private factors suggesting trial in Nevada presumes respondent abides by its stated willingness to waive the statute of limitations if suit is brought in Nevada. If respondent defends the claim by invoking the expiration of the statute of limitations, the case should be returned to the California court in which it was originally filed per the trial courts order to stay.
2. Public interest factors.
Neither party offered any facts to suggest trial would impose an undue burden on either states court system. Nevada jurors presumably have a more pressing concern for the conditions in Las Vegas hotels, considering the states important economic interest in providing safe and welcoming tourist destinations, than a California jurys more generalized interest that California citizens can recover for injuries sustained while traveling out of state. Also, as the trial court indicated during oral pleadings, the state of Nevada would have more interest in overseeing the outcome of a decision concerning a state corporations in-state conduct than Californias interest in that same conduct.
Dendy v. MGM Grand Hotels, Inc., supra, 137 Cal. App. 3d 457, 462, describing the competing state interests in a suit by California residents against a Nevada corporation for damages sustained in a fire in a Las Vegas hotel/casino.
Viewed in the light most favorable to the trial courts ruling, the record is sufficient to suggest the private and public interest factors both favored trial in Nevada and therefore the trial court did not abuse its discretion by so ruling.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
We concur: PERLUSS, P.J., and WOODS, J.