Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC347190. Jon M. Mayeda, Judge.
Engstrom, Lipscomb & Lack, Walter J. Lack. Elizabeth L. Crooke, Mark E. Millard for Plaintiffs and Appellants.
Tim A. Goetz; Gordon & Rees, Stephen Ronk, Gary A. Collis for Defendant and Respondent.
BOREN, P.J.
This appeal is from an order dismissing a wrongful death lawsuit on the grounds of forum non conveniens. The lawsuit arose from the crash in British Columbia, Canada, of a helicopter en route to a remote logging camp. The helicopter was designed, manufactured, and sold in Los Angeles County by defendant Robinson Helicopter Company, Inc. (Robinson). Plaintiffs Carolyn and Faryn Van Humbeck are the widow and minor daughter of the deceased helicopter pilot, Rodney Van Humbeck; all are Canadian citizens. Plaintiffs allege wrongful death arising from a design or manufacturing defect in the helicopter. Defendant alleges pilot error and points to evidence of turbulent weather conditions and improper maintenance of the helicopter.
We find that the trial court did not abuse its discretion in dismissing the action based on the doctrine of forum non conveniens, subject to certain specified conditions agreed to by defendant, including its submission to the jurisdiction of British Columbia, Canada, and the agreement to pay any final judgment rendered in a Canadian action.
FACTUAL AND PROCEDURAL SUMMARY
Underlying facts
On February 20, 2004, a Robinson R22 helicopter piloted by the decedent, a logging manager, disappeared while en route to a logging camp in British Columbia. The next day, a search team located the wreckage of the helicopter strewn across a rugged forest area.
The R22 helicopter is a two-bladed, two-seat helicopter with an empty weight of 855 pounds. According to an ensuing investigation report by the Transportation Safety Board of Canada (TSBC), the helicopter had suffered an “in-flight breakup,” and one of its two main rotor blades had become detached and was found 150 meters from the main wreckage site. The “pilot’s body was ejected through the windshield into the path of the remaining main-rotor blade.”
The TSBC report noted that on the date of the crash and in the area where the accident occurred the crew of a Boeing 107 helicopter, which is much larger than the R22, had reported moderate to severe turbulence. At the approximate time of the accident, the crew of the Boeing 107 had encountered turbulence described as “an unusually sharp blow” sufficient to “leave the entire contents of the co-pilot’s coffee cup in the air.” The Boeing 107 is a “heavy and forgiving helicopter in turbulence.”
As to the cause of the fatal accident involving the R22, based on the wreckage debris trail, the damage to trees, the resting location of the pilot’s body, and damage to the helicopter, the TSBC report concluded there was an “in-flight breakup” because the pilot had encountered “quite severe turbulence” in the form of a “down draught.” Specifically, “The helicopter encountered turbulent air that unloaded the main-rotor system resulting in damage that led to the helicopter becoming uncontrollable. Subsequent forces overloaded and broke one of the main-rotor blade attachment bolts, and the blade separated. [¶] Gross imbalance resulted in the deformation of the attachment area of the main-rotor transmission, and the helicopter broke up in-flight.” The report also noted that there was “extensive wear and tear” on a clutch, likely because it had remained in operation beyond the time for its replacement, and the operator “continued to operate the helicopter after some component life limits had been exceeded.”
Frank Robinson, defendant company’s president and a pilot with extensive knowledge and experience with helicopter design and manufacturing, opined as to the cause of the accident. According to Robinson, based on the evidence gathered by the TSBC, the causes of the accident were the pilot’s failure to maintain adequate terrain clearance, and the pilot’s improper reaction to a severe downdraft or turbulence which placed the helicopter outside of its design envelope.
Plaintiffs, however, postulated a design defect in the R22 helicopter which resulted in main rotor instability. Plaintiffs point to a May 2004 service bulletin from Robinson to all R22 owners, operators, and service centers -- a bulletin issued approximately three months after the accident at issue herein. The service bulletin noted that a recent accident involving an R22 (apparently, not the aircraft at issue here) revealed that the aircraft had not been modified to comply with an April 1995 service bulletin, which required installation of strengthened teeter stop brackets (available at a cost of $65). Similarly, in June of 2005, the United States Federal Aviation Administration (FAA) issued a notice of proposed rulemaking, to require replacement of droop and teeter stop brackets with improved hardware. The improved hardware would “prevent failure of the stops and brackets, blade contact with the airframe, and subsequent loss of control of the helicopter.”
In April of 1996, the NTSB issued a special investigation report as a result of a number of accidents involving the R22 (and similar R44) helicopters which sustained a loss of main rotor control. The special investigation did not produce a single, unifying reason for the various accidents. However, the NTSB report noted that the R22 was highly responsive to control inputs, and that a rapid or abrupt input could easily result in rotor path divergence and the blade striking the fuselage. Thus, the FAA implemented operational changes to ensure that pilots and flight instructors were aware of the effect of abrupt control inputs and weather factors on the main rotor control.
Procedural history
In February of 2006, plaintiffs filed a complaint in Los Angeles Superior Court, alleging wrongful death premised on causes of action for negligence, strict product liability, and breach of warranty. Defendant is a California corporation with its corporate offices and manufacturing plant in Torrance.
Defendant moved to dismiss or stay the action for forum non conveniens. Defendant asserted: “Although evidence concerning the design, manufacture and testing of the helicopter is located in the United States, the connections with Canada are otherwise overwhelming. The plaintiffs are citizens of Canada. Witnesses who could testify regarding the maintenance of the aircraft, the training of the pilot, the investigation of the accident, and the flight of the helicopter before and at the time of the crash -- all essential to the defense -- are located in Canada. Moreover, all witnesses to damages are located in Canada.” The motion was supported by several exhibits, including the previously noted declaration by Frank Robinson, the NTSB report summary indicating the matter was under the jurisdiction of and investigated by the TSBC, and the TSBC report.
The motion also contained a “writ of summons” filed in British Columbian in an unrelated case alleging an R22 crash and negligence by Robinson and another party, apparently indicating the viability of such a lawsuit in Canada. Additionally, defendant’s motion contained a declaration by Canadian attorney Daniel Fetterly, who asserted that British Columbia was available to plaintiffs as a forum for their lawsuit. Fetterly explained that plaintiffs could bring an action against defendant in a court in British Columbia, that the Canadian court would have jurisdiction over such an action because the accident occurred in British Columbia where the decedent and plaintiffs are residents, that British Columbia law would be applied by its independent judiciary, which follows due process of law, and that compensatory damages could be recovered for pecuniary losses suffered as a result of the death of another.
Plaintiffs served written discovery requests to elicit information about the location of witnesses and the defect history of the helicopter; defendant objected to the discovery and moved for a protective order. Plaintiffs also opposed the forum non conveniens motion, noting the lack of discovery, and submitted various documents in support of their opposition to defendant’s motion. The previously described supporting exhibits included defendant’s service bulletin describing the procedure for installing improved teeter stop brackets, and the related airworthiness directive from the FAA, and the 1996 NTSB special investigative report.
The opposition to the forum non conveniens motion also included an example of defendant’s helicopter purchase agreement, which called for dispute resolution regarding the purchase agreement under the “controlling law . . . of the State of California” and “in the legal jurisdiction nearest RHC [defendant],” and a Westlaw printout indicating that defendant had previously sued and been sued in various courts in California. In addition, the opposition contained a declaration from Canadian attorney J.J. Camp, licensed to practice law in British Columbia, who indicated that in British Columbia there are severe limitations on the ability to obtain discovery from an adverse party, serious impediments to a plaintiff’s ability to gather evidence located outside British Columbia, and a workers’ compensation law that would preclude a claim against any maintenance engineer or maintenance facility located in British Columbia for any faulty workmanship on the helicopter in question.
After a hearing on the forum non conveniens motion, the trial court dismissed plaintiffs’ action. However, the court ordered the case dismissed “subject to the following conditions agreed to by defendant”: (1) that defendant submit to the jurisdiction of British Columbia, Canada; (2) that defendant agree to comply with discovery orders there; (3) that defendant make past and present employees reasonably available to testify in British Columbia, at defendant’s cost, if so ordered, within the discretion of the Canadian courts; (4) that defendant agree to the tolling of the statute of limitations during the pendency of this action in California; (5) that defendant agree to make documents in its possession in the United States available for inspection in British Columbia, as required by Canadian law at defendant’s expense; (6) that defendant agree to depositions in the United States under Code of Civil Procedure section 2029.010; and (7) that defendant agree to pay any final judgment rendered in the Canadian action.
DISCUSSION
Forum non conveniens principles
“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, Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) Code of Civil Procedure section 410.30, subdivision (a) 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.”
In determining whether to grant a forum non conveniens motion, the court first considers whether “the alternate forum is a ‘suitable’ place for trial.” (Stangvik, supra, 54 Cal.3d at p. 751.) If so, the court next considers “the private interests of the litigants and the interests of the public in retaining the action for trial in California.” (Ibid.) “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in litigation.” (Ibid.) Thus, the “jurisdiction with the greater interest should bear the burden of entertaining the litigation.” (Id. at p. 757.)
Burden of proof and standard of review on appeal
“On a motion for forum non conveniens, the defendant, as the moving party, bears the burden of proof. The granting or denial of such a motion is within the trial court’s discretion, and substantial deference is accorded its determination in this regard.” (Stangvik, supra, 54 Cal.3d at pp. 751.) The trial court’s threshold inquiry as to whether there is a suitable alternative forum is a nondiscretionary question of law, and is subject to de novo appellate review. (Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1186 (Roulier).) However, the trial court’s weighing of public and private interests, the second and third issues to be resolved, is reviewed for abuse of discretion. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436)
The test for abuse of discretion is whether the trial court has “exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) “When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Id. at pp. 478-479.) Thus, the trial court’s conclusion regarding the proper balance of public and private interests will be reversed only if the reviewing court concludes that “under all of the evidence, viewed most favorably in support of the trial court’s action, no judge could have reasonably reached the challenged result.” (Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.)
To the extent a party contends the trial court abused its discretion by reaching a conclusion not supported by the evidence, that party bears the burden of showing that substantial evidence does not support the conclusion. (Forman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Merely reciting isolated pieces of favorable evidence is insufficient to meet that burden. (Ibid.)
Analysis of forum non conveniens factors
British Columbia is a suitable alternative forum.
The threshold inquiry is satisfied, since it is apparent that the alternate forum of British Columbia, Canada, is available as “a ‘suitable’ place for trial.” (Stangvik, supra, 54 Cal.3d at p. 751.) “‘Suitability’ and ‘availability’ in this context mean that a valid judgment can be obtained in the selected forum. [Citation.] Normally, this is limited to a determination that there is jurisdiction over the dispute and the statute of limitations has not expired as of the time the motion is considered. [Citation.] Also, the forum must have a reasonable connection to the parties or the dispute.” (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 12, fn. 5.) Significantly, the “‘forum is suitable where an action “can be brought,” although not necessarily won’” (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1037), and whether the law of the alternative forum is less favorable than the law of California is of no consequence to the analysis. (Roulier, supra, 101 Cal.App.4th at p. 1187.)
First, defendant specifically agreed to submit to jurisdiction in British Columbia and agreed to the tolling of the statute of limitations while this action is pending in California, and the trial court incorporated those stipulated elements into its dismissal order. Second, as indicated by the declaration from British Columbia attorney Fetterly, plaintiffs are entitled to file a lawsuit in British Columbia pursuant to Canada’s Family Compensation Act and may recover compensatory damages if liability is established. Any unfavorable procedural matters and limited discovery devices in British Columbia, as noted in the declaration provided by plaintiffs’ British Columbia attorney, are not determinative.
The fact that an alternative forum affords a plaintiff less favorable law than California “should not be accorded any weight in deciding a motion for forum non conveniens provided, however, that some remedy is afforded.” (Stangvik, supra, 54 Cal.3d at p. 754, fn. 5.) “[A] forum is suitable where an action ‘can be brought,’ although not necessarily won.” (Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 132 [a state that does not recognize a cause of action may still be a suitable forum].) Analyzing the matter de novo, it is thus apparent that the alternative forum of British Columbia is a suitable place for trial.
We note that plaintiffs also assert that the trial court erred when it “foreclosed discovery prematurely” and, consequently, its determination that British Columbia was a suitable forum was erroneous. However, there is no requirement that the trial court permit any discovery prior to ruling on a motion to dismiss for forum non conveniens. Indeed, if extensive discovery litigation were permitted in California, it would defeat the purpose of the motion.
California is an inconvenient forum for adjudication of this dispute.
“[T]he 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, supra, 54 Cal.3d at p. 751.) “The trial court’s balancing of these factors is entitled to substantial deference.” (Roulier, supra, 101 Cal.App.4th at p. 1188.)
Although the jurisdiction of defendant’s residency is presumptively a convenient forum, it is a rebuttable presumption. The presumption is not conclusive and does not bar granting a local defendant’s motion to dismiss for forum non conveniens. (See Stangvik, supra, 54 Cal.3d at p. 756, fn. 9.) Indeed, a foreign plaintiff’s choice of forum is “not a substantial factor in favor of retaining jurisdiction” in California. (Id. at p. 755, & fn. 7; see Campbell v. Parker-Hannifin Corp. (1999)69 Cal.App.4th 1534, 1543 (Campbell).) Thus, the choice by Canadian plaintiffs herein of California as the forum is not a substantial factor in evaluating California as a convenient forum.
Just as in other cases where private factors weighed in favor of the jurisdiction where the accident occurred (e.g., Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235; Stangvik, supra, 54 Cal.3d 744; Campbell, supra, 69 Cal.App.4th 1534), the private factors here weigh in favor of British Columbia, largely because of the location of witnesses and evidence. Because the plaintiffs and decedent are residents of Canada, all of the evidence of earnings, earning capacity, loss of support, etc. which pertains to damages is located in Canada.
The Canadian investigative report clearly ascribes air turbulence as the primary cause of the accident, and defendant additionally attributes the pilot’s reaction to the turbulence as a cause and notes the TSBC’s finding that certain component parts of the R22 were not properly maintained. Plaintiffs argue design or manufacturing defects and the like were the cause of the accident. However, documents regarding the design and manufacturing of the helicopter can be shipped to the alternative forum, and defendant has agreed to make its documents available for inspection in British Columbia and its employees available for testimony there subject to the discretion of the Canadian court. (See Stangvik, supra, 54 Cal.3d at p. 762.)
Similarly, complaints about defendant’s lack of assets in British Columbia and the unenforceability of any judgment entered there are unavailing because defendant stipulated to satisfy any judgment rendered by a court in British Columbia. We also note that the trial court had before it no admissible evidence of the whereabouts of defendant’s assets. In any event, the lack of assets in the alternative forum has never been stated as a proper basis for denying a motion to dismiss for forum non conveniens.
Moreover, defendant persuasively points out that important third parties, such as the Canadian owner of the helicopter and Canadian mechanics who serviced it, would be beyond the reach of California courts. To the extent such third parties bear some liability, defendant would be unable to cross-complain in California for lack of jurisdiction over those Canadian parties.
Also, the turbulent weather condition at the time of the accident is an inherently local issue with local evidence; e.g., crew members on the nearby and much larger helicopter which experienced severe turbulence at approximately the time of the crash of the R22. Thus, the most reliable evidence and sources of proof regarding the weather turbulence are located in Canada, and would be beyond the reach of defendant if this action remained in the jurisdiction of California. Similarly, the eyewitness who observed the helicopter’s movements just before the crash, the Canadian government investigators, the technical experts who examined the helicopter debris, and those who assisted in the search of the accident scene are all Canadian and potential witnesses beyond the reach of California courts.
Plaintiffs also rely on a forum selection and choice of law clause found on defendant’s website and contained in its standard purchase agreement. The clause describes the procedure for dispute resolution regarding the purchase agreement -- which is not at issue here -- and specifies the use of California law in the legal jurisdiction nearest to defendant. However, reliance on this clause for forum non conveniens analysis is misplaced. No California court has ever considered the presence of a forum selection clause in a contract to be relevant when considering a motion to dismiss for forum non conveniens where, as here, the outcome of the dispute is not governed by the contract containing the provision. In any event, even if such a clause were relevant, it would only be persuasive evidence of the convenience of a California forum and would not preclude resolving the case in a different venue. (See Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611.)
Equally unavailing is plaintiffs’ complaint that the trial court did not give proper consideration to the historical evidence gathered by the NTSB and the FAA, which could not be secured by legal process in British Columbia. Apart from whether the NTSB accident report and testimony of its employees would be inadmissible in a suit for damages (see 49 C.F.R., § 835.3), the 1996 NTSB report and the derivative FAA recommendations did not find any defect in the R22. Rather, the NTSB noted that the R22 met initial certification standards, and its investigation of accidents involving the R22 “did not identify any precipitating progressive mechanical failures or material defects.” Instead, the cause of most of the accidents was found to be pilot error or inadequate pilot training. And, even if a United States government agency had concluded that the R22 was defective or unsafe, which was not the case, the helicopter was not registered in or operated in the United States at the time of the accident.
In fact, public factors weighing heavily in favor of British Columbia as the venue include the fact that Canada controls its airspace and dictates the training and license requirements for its pilots, that the R22 was flying under Canadian registration and regulations and entirely within Canadian airspace, and that the accident was investigated by Canadian authorities. Although trial in California may have some incremental deterrent effect on a California defendant, the effect is outweighed by the burden to a California court of trying an action involving the grievance of Canadian citizens regarding the death of another Canadian in an accident occurring in Canada. (See Campbell, supra, 69 Cal.App.4th at pp. 1541-1542.) Also, there is no reason to believe that a judgment rendered in Canada would not have the same deterrent effect as one imposed by a court in California.
We acknowledge that California has a public interest in ensuring that products produced within the state are not defectively designed or manufactured. However, California’s interest is outweighed by Canada’s public interest in adjudicating claims brought by its citizens for the death of its citizen traveling on an aircraft within its airspace and subject to its regulation. (See Piper Aircraft Co. v. Reyno, supra, 454 U.S. at p. 260; Nai-Chao v. Boeing Co. (N.D.Cal. 1982) 555 F.Supp. 9, 20, affd. sub nom. Cheng v. Boeing Co. (9th Cir. 1983) 708 F.2d 1406.) Although California may have a generalized interest in deterring their residents from manufacturing defective products, the Canadian government has an intensely local interest in regulating the registration and operation of aircraft within its borders.
Accordingly, based on an analysis of the various private and public factors discussed above, it is apparent that the trial court did not abuse its broad discretion in granting the forum non conveniens motion. Nor is there any merit to the notion that the court abused its discretion because it purportedly excused defendant of its burden of proof, or because it allegedly failed to conduct the weighing of factors required by the proper analysis of a forum non conveniens motion. Although the trial court did not make specific findings or state at length its reasoning, it was not required to do so or to intone certain magic words. Based on the pleadings before the court, the discussions of counsel at the hearing, and the court’s proper focus at the hearing on the Piper, Stangvik, and Campbell cases, it is apparent that the court was well aware of the burden of proof and its obligation to weight the various relevant factors and did not abuse its broad discretion.
Dismissal of the action, as opposed to a stay of the action, was not an abuse of discretion.
Plaintiffs contend that even if the trial court acted within its discretion in deciding in favor of the alternate forum, it abused its discretion in dismissing the action when the lesser option of a stay was available. A trial court may, of course, stay the action and retain jurisdiction to make such further orders as might become appropriate. (See Stangvik, supra, 54 Cal.3d at p. 750; Code Civ. Proc., § 410.30, subd. (a).)
For example, in Chong v. Superior Court, supra, 58 Cal.App.4th 1032, the Court of Appeal ordered the matter stayed, rather than dismissed, in recognition of the trial court’s concern that due process of law may no longer exist in Hong Kong, at a time when sovereignty had just recently been transferred from Great Britain to China. Thus, the court held that “if [plaintiff] is not able to receive a fair trial in Hong Kong, it can apply to lift this stay.” (Id. at p. 1040.) However, no such drastic concerns about a fair trial exist in the present case.
Moreover, a court is more likely to exercise its equitable discretion to stay rather than dismiss an action when a case involves “plaintiffs who [are] bona fide California residents at the time their causes of action arose.” (Henderson v. Superior Court (1978) 77 Cal.App.3d 583, 598.) Because dismissing an action, as distinguished from staying the action, “results in California’s loss of jurisdiction over the matter, it has long been the rule . . . that an action brought by a California resident may not be dismissed on grounds of forum non conveniens except in extraordinary circumstances.” (Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 411; see Beckman v. Thompson (1992) 4 Cal.App.4th 481, 487-488.) Plaintiffs here are not California residents.
Accordingly, the trial court did not abuse its discretion in dismissing rather than staying the action.
DISPOSITION
The order granting the motion to dismiss on the ground of inconvenient forum affirmed.
We concur: DOI TODD, J., CHAVEZ, J.