Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. D505790, Patricia Garcia, Judge.
HUFFMAN, J.
Reversed in part and affirmed in part with directions; judicial notice request granted in part and denied in part.
In this dissolution action, petitioner and appellant Maria Ollervides (Wife) appeals the order of the family court that granted the motion by her husband of nine years, respondent Leonardo Cohen (Husband) to dismiss this action on an inconvenient forum basis, subject to service on Wife of pleadings in a later-filed, separate divorce action brought by Husband in Mexico. (Code Civ. Proc., § 410.30.) On appeal, Wife asserts the trial court erred as a matter of law in finding that Mexico was a suitable alternative forum. She also contends the trial court abused its discretion when it weighed the appropriate factors for deciding the convenient forum question, and when it denied her motion for reconsideration. (§ 1008.)
All further statutory references are to the Code of Civil Procedure.
We disagree with Wife's arguments that the courts in Tijuana, Baja California, Mexico cannot, as a matter of law, provide a suitable forum for resolution of this action, even in light of her efforts to show that the current political and social conditions in that area of Mexico create imminent hazards of kidnapping and violence affecting many wealthy Mexican citizens, such as these parties or their friends and relatives. Such a matter is not susceptible of appropriate judicial notice, as Wife contends. (Evid. Code, §§ 451, 452, 459.)
We further find that the trial court was justified in exercising its discretion to accept Husband's showing that Mexico is the more convenient forum for adjudication of the dispute, based on an analysis that balanced the respective public and private interests. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).)
Nevertheless, on this record, we conclude the trial court erred and abused its discretion when dismissing the case conditionally, by requiring service of the Mexican action on Wife, without requiring further proof that the matter was properly brought before and remains before the Mexican court. We grant the request for judicial notice by Wife of documents filed in the Mexican proceedings, showing that there is a pending jurisdictional dispute over whether the dissolution matter should be litigated there, and according to the most recent information provided to us, the matter is currently before an appellate panel there. (Evid. Code, §§ 451, 452, 459.) The parties may be deprived of a forum for resolution of this dispute if the Mexican proceeding does not go forward. Accordingly, the family court's conditional dismissal order in this case must be reversed and the matter remanded with directions to order a stay of this proceeding, subject to the following conditions (and such other conditions the court deems appropriate): (1) during the pendency of Husband's Mexican action, the court must require the parties to report to the court on a regular basis about any final resolution of Wife's jurisdictional challenges there; and (2) in the event the Mexican courts dismiss Husband's action for lack of jurisdiction over Wife or otherwise refuse to resolve the merits of the case, the trial court may dissolve the stay and resume proceedings in this California action.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts: Petitions
The parties were married in Tijuana, Mexico in 1999. Both come from well to do Mexican families that have substantial business interests in the United States-Mexico border region and elsewhere, and they both work in their respective family businesses, which have operations on both sides of the border. Both parties are Mexican citizens, although Wife is also an American citizen. They have one child, born in 2004, and she also has dual Mexican-American citizenship.
According to a declaration filed by Husband, in 1999, when the parties applied for their marriage license in Mexico, they were required to choose between marrying under a separate property regime or under a "conjugal societies regime," which would provide for marital or community-type property. Husband represents that the parties executed a standard prenuptial agreement choosing the separate property regime, although none of these documents can be found because the records were destroyed at the Tijuana city clerk's office (flood). Husband also represents that the Mexican marriage certificate was read to witnesses at the ceremony and was then signed by the parties and witnesses.
After their marriage, the parties resided mostly in Tijuana, although they also lived abroad in Hong Kong, from 2002-2005. Their child was born after Wife returned to Tijuana. Throughout, they maintained contact with their families, who reside there, and conducted business for the families' businesses.
In 2006, the parties learned that one of Husband's relatives had been kidnapped for ransom in Tijuana, and for security reasons, they decided to purchase a residence in San Diego and live here. Wife signed a quitclaim deed for the San Diego residence to Husband, apparently for tax reasons. Because they both continued to conduct family business, sometimes in Tijuana, they both crossed the border on a frequent basis. They found a school and doctors for their daughter in the San Diego area, and she was cared for by a nanny who lived with them.
In May 2007, Wife left Husband and the San Diego community residence, on account of his alleged emotional instability and alcohol abuse. She returned to her parents' home in Tijuana, stating that she and her daughter had nowhere else to go, although she intends to live in the United States.
On October 5, 2007, Wife filed a petition in San Diego County Superior Court to dissolve the marriage, representing that both parties had been California residents for six months. On October 17, 2007, Wife obtained an ex parte order that a special master should take possession of a safe that was in Husband's possession, that may have contained family financial information. The petition was served on Husband in California.
B. Motions: To Quash, Strike, or Stay; Order to Show Cause
Upon being served, on November 14, 2007, Husband filed a motion to quash the proceeding and service of summons, and to strike the petition. He separately moved to vacate the ex parte order and obtain fees and costs awards. A hearing date was set for December 18, 2007. He sought to have the petition dismissed based on inconvenience of forum, on the basis that the parties were married in Mexico and agreed to be married under the separate property regime, so that Mexican law should be applied. He stated that both parties were domiciled in Mexico, although he currently lived in San Diego in the family residence and did not have plans about when to return. Husband asserted there were practical difficulties of proceeding with the litigation where substantial evidence and witnesses were in Mexico, and it would be necessary to use the Spanish language to determine the validity and effect of the parties' marriage license and prenuptial agreement, which would lead to increased costs.
In connection with the motion to quash, Husband provided blank copies of a Mexican marriage license and prenuptial agreement, representing that the originals had been destroyed at the city clerk's office through flood, and seeking to have judicial notice taken of these documents. He also sought to bring in expert testimony about the interpretation of Mexican law pertaining to marital property.
On November 28, 2007, Wife filed opposition and obtained an order to show cause on custody and property issues, including possession of the community residence, with a hearing date of January 22, 2008. She provided lodged documents showing her contacts with San Diego and those of Husband. Husband obtained a continuance of the December 18 and January 22 hearings until March 19, 2008, in order for the motion to quash to be heard.
By agreement, the parties went through private mediation in San Diego on custody issues and Husband agreed to undergo a substance abuse evaluation, because Wife alleged he drank excessively (in her own declaration and that of the nanny). (Wife now requests that the chemical dependency assessment be withdrawn from this record as it is a confidential mediation document, and she claims it was designated in error.)
Subsequently, Husband sought judicial notice of the dissolution petition he had filed on March 6, 2008, in the state of Baja California, Mexico. Husband also filed a related request seeking to stay discovery, as a special appearance, and a hearing date was set for March 10, 2008. Originally, Husband also sought to bifurcate the proceedings regarding finances and property, but that portion of the motion heading was crossed out on January 30, although the supporting papers continued to request such relief, leading to confusion.
In reply, Wife supplied her Mexican expert attorney's declaration about recently enacted law in Mexico that expanded community property rights for women, although the retroactive effect of that law was unclear.
C. Ruling
The motion to quash was argued on March 19, 2008. The court asked the attorneys to explain the entire picture of the parties' residence in the border area and abroad, and commented on the large size of the file, which included many lodged documents. Husband's attorney stated that other than consulting an immigration attorney, he had not taken any steps to obtain United States citizenship or a visa, and he was here as a Mexican citizen. The trial court reviewed the extensive file and granted Husband's motion to dismiss the petition based on forum non conveniens, "subject to petitioner being served with the divorce proceeding pending in... Mexico." The court's statement of decision, as prepared by counsel for Husband, began with numerous factual findings, including Wife's and the parties' child's current residence in Mexico, and also at the time that the petition was filed in San Diego. The statement of decision made the following legal conclusions (nos. omitted):
"Tijuana, Mexico is a suitable, more convenient, alternative forum. The court in Tijuana is fully competent to hear all issues in this matter and in the best position to judge the validity of the marriage license, the marriage contract, and the prenuptial agreement.
"The majority of evidence is likely to be contained in Mexican documents that are in Spanish, and this court cannot make any decisions and cannot consider any documents that are in Spanish without their being translated into English, and considering the expense in translating the documents, it is not convenient for the proceeding to be heard in San Diego.
"Hearing the matter in San Diego would also require hiring expert witnesses to testify on Mexican law.
"There are likely to be many witnesses to this proceeding who live in Mexico. This is a concern. Moreover, it would be more difficult for counsel and this court to compel deposition and/or trial testimony than it would be for a Mexican court.
"A Mexican judge is in a better position to apply Mexican law as to the requirements that need to be met for a marriage license to be valid, whether the parties' marriage license complies, the legal effect and validity of the prenuptial agreement, and associated legal issues.
"The State of Baja California, Mexico is where the parties' child resides; the State of Baja California has a closer connection with the child and the child's family; substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in the State of Baja California than it is in San Diego.
"In making this decision, this court has balanced the public interest versus the private interest of the parties. The private interest factors to be considered 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. These factors, and the specific issues involved, the primary issues being the marriage license, validity of the license, and the validity of the prenuptial agreement, weigh in favor of the matter being heard in Mexico. The public interest factors to be considered include avoidance of overburdening local courts with congested calendars, and weighing the competing interests of California and the alternate jurisdiction in the litigation. These factors, including the interest of California and of Baja California, Mexico, in the legal issues involved in this matter, also weigh in favor of the matter being heard in Mexico. This court concludes that these private and public factors all weigh in favor of the matter being determined in Mexico, and finds that this case can be more appropriately and justly tried in Mexico."
During the hearing, the trial court instructed counsel that games playing was to be avoided and that the dismissal was subject to service on Wife of the Mexican divorce action, for a proceeding to take place in Tijuana.
D. Motion for Reconsideration
Wife obtained new counsel and then brought a motion for reconsideration, mainly on the basis that the court might have been unaware at the hearing that Wife and the daughter had actually been residing in the United States since the week before the March 19 hearing, due to her own increased security concerns after Husband's filing of the Mexican petition for dissolution, containing financial information about her. In support, she attached her own declarations and those of a family friend and lawyer for her family, outlining incidents in which she believed she had been followed or when her family business premises were under surveillance by suspicious persons. She lodged a copy of a criminal complaint she had filed in Mexico against Husband for threatening her, dated March 12, 2008.
Wife requested judicial notice of three news articles and two United States Department of State travel alerts, warning of hazards to personal safety when traveling in Mexico, including kidnapping. To explain the timing of her reconsideration request, she argued that she did not realize the significance of the kidnapping threat and her change of residence as of the time of the first hearing. Wife lodged documents in support of reconsideration, mainly repeating the previous documentation of the motion to quash and adding the Mexican petition filed by Husband.
The trial court declined to hold a hearing on the motion for reconsideration and ruled that it was without merit because there was no showing that the claimed new facts could not have been discovered and produced earlier, in the exercise of reasonable diligence. (§ 1008, subd. (a).) The order also stated that reconsideration would have been denied even if the claimed new information had been considered. Dismissal was ordered May 15, 2008, subject to service of the Mexican divorce proceeding upon Wife, and she appeals.
Pending appeal, Wife has obtained leave to augment the record with the notices of lodgment and attached documents, for both the original motion to quash and her reconsideration motion. She also filed requests for judicial notice, which we deferred for decision and will discuss in part II, post.
In his respondent's brief, Husband contends that Wife failed to brief the reconsideration issues and also inaccurately included information in her statement of facts that was found only in the reconsideration portion of the proceedings. Husband seeks to have some factual statements in the opening brief stricken and to have the reconsideration issues deemed waived. We need not further address these requests, as it is appropriate for us to consider the entire record in connection with the issues properly raised regarding the orders on appeal.
DISCUSSION
I INTRODUCTION
"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. [Citation.]" (Stangvik, supra, 54 Cal.3d 744, 751.) The doctrine of forum non conveniens is codified in section 410.30, stating:
"(a) 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."
Under section 410.30, the court had the power either to dismiss or stay the dissolution petition if Husband showed the California forum is inconvenient for jurisdictional purposes. "Both the terms of section 410.30 and the prior decisional law [citation] distinguish between the dismissal of an action on grounds of forum non conveniens, and the stay of an action on that ground...." (Ferreira v. Ferreira (1973) 9 Cal.3d 824, 838.) "The distinction between a dismissal and a stay does not merely lie in terminology. The staying court retains jurisdiction over the parties and the cause;... it can compel the foreign [party] to cooperate in bringing about a fair and speedy hearing in the foreign forum; it can resume proceedings if the foreign action is unreasonably delayed or fails to reach a resolution on the merits. [Citation.] In short, the staying court can protect... the interests of the California resident pending the final decision of the foreign court." (Id. at p. 841, fn. 21.)
To address all the arguments on appeal, we first set out our rules of review and deal with the preliminary judicial notice request. We then turn to the record, as established, to evaluate the trial court's legal and discretionary rulings.
A. Rules and Scope of Review
We generally review the challenged ruling that conditionally dismissed the case for abuse of discretion, including the later denial of reconsideration. However, the trial court's threshold determination that Mexico constituted a suitable alternative forum was a nondiscretionary ruling of law, subject to de novo review on appeal. (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1036-1037(Chong); Stangvik, supra, 54 Cal.3d at p. 752, fn. 3.) Once that ruling was made, the family court was required to exercise its discretion in the balancing of the respective forum-related interests; such a discretionary determination is given substantial deference on appeal. (Id. at p. 751.)
We likewise review the court's ruling denying the motion for reconsideration under an abuse of discretion standard. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212; see In re Marriage of Oropallo (1998) 68 Cal.App.4th 997, 1002.) "Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.]" (NewYork Times, supra, at p. 212.) The reconsideration request and denial order are before this court, in addition to the original ruling, and "we are free to review both orders and render an opinion based on the correct rule of law." (In re Marriage of Oropallo, supra, at pp. 1002-1003.)
The parties disagree about the proper scope of the trial court's conditional ruling to dismiss the case. The moving and opposing papers gave ample notice that the motion to quash was brought on the basis of forum non conveniens, along with other theories, and that both dismissal and stay issues were before the family court. Thus, there is no indication that the trial court confined its ruling of dismissal only to financial and property issues, as Wife appears to argue. The reconsideration order is also before this court. Moreover, we are aware that Wife's California dissolution petition generally pled issues about child custody, but those issues were not separately raised nor were they required to be resolved by the family court in these jurisdictional proceedings. In fact, Wife now admits in her reply brief that the applicability of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.) amounts to a newly raised argument on appeal.
Normally, a party may not raise a new contention on appeal unless a new point of law has been decided after the order or "where the new theory 'presents a question of law to be applied to undisputed facts in the record' [citation]." (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1227.) A reviewing court must apply this rule discretionarily, "within the bounds of due process." (Ibid.) We may discuss this issue to a limited extent in connection with the review of the family court's balance of issues in its discretionary ruling.
B. Judicial Notice Request
Before our standards of review may be applied, we are required to clarify the extent of the record before us. While this appeal was pending, Wife filed several requests for judicial notice, which we deferred for decision. (Evid. Code, §§ 452, 459.) The authors of 1 Witkin, California Evidence (4th ed. 2000) Judicial Notice, section 15, pages 110 to 111, explain that the Evidence Code "distinguishes between facts subject to compulsory and to optional notice. In the highest category are '[f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.' [Citations.] [¶] Judicial notice of facts of this type should not require any request, and it is accordingly made compulsory. Moreover, 'universally known' should be given the practical interpretation of 'known among persons of reasonable and average intelligence and knowledge.' [Citation.]"
Also, a reviewing court may take optional judicial notice according to the specifications of Evidence Code sections 452 and 459, subdivision (a). (1 Witkin, Cal. Evidence, supra, Judicial Notice § 46, p. 138.) That is a discretionary power. (Ibid.) It is appropriate to take judicial notice of foreign law in accordance with the procedures of Evidence Code sections 452, subdivision (f) and 454, subdivision (b), by relying on written " 'advice of persons learned in the subject matter.' " (1 Witkin, Cal. Evidence, supra, Judicial Notice, § 40, p. 135.) When courts take judicial notice of official acts and public records, it is not the same as taking judicial notice of the truth of all matters stated in them. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064; overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) " '[I]n many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.' [Citation.]" (Mangini, supra, at pp. 1063-1064.)
In the category of optional judicial notice, Evidence Code section 452, subdivisions (g) and (h), provide for the taking of notice, respectively, of matters of common knowledge within the jurisdiction, and matters that are easily ascertained by reference to reliable sources. (1 Witkin, Cal. Evidence, supra, Judicial Notice, § 31, pp. 124-127.) The authors give numerous examples of optional judicial notice material, including economic facts or conditions of war, and also various facts about crime (see, e.g., these case summaries in that treatise: Powell v. Superior Court (1991) 232 Cal.App.3d 785, 790, fn. 2 [judicial notice by appellate court of news media coverage of crime, in determining whether motion for change of venue should have been granted]; Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, 481 [street gangs generally claim "home territory" and attempt to prevent rival gang members from entering].)
There are limitations on judicial notice of "[s]ome matters of so-called common knowledge," because "they are not really known or immediately ascertainable within the local area. [Citations.]" (1 Witkin, Cal. Evidence, supra, Judicial Notice, § 35, p. 130.) Even though some local facts are "widely believed," the courts will decline to take judicial notice if they are controversial or subject to expert testimony. (Ibid.) Using these standards, we turn to the specific requests.
1. News Articles
Wife requests judicial notice of numerous (26) newspaper and Internet articles, attached to her attorney's declaration and collected by a clipping service, referring to incidents of violence and kidnapping in Tijuana, Mexico and Baja California during the time period from July 2006 to November 2008. A few of these materials were presented to the family court in connection with the reconsideration motion (three articles and 2007 U.S. Department of State travel alerts). In general, these requests pertain to the argument that Mexico does not provide a suitable forum for adjudication of the dissolution requests, due to "constant conditions of uncontrolled violence," and threats of kidnapping of persons of wealth such as these parties.
Husband opposes the request, stating that the articles do not prove that the citizens of Baja California cannot safely access its courts, and that the proposition as stated is too sweeping and inappropriate for judicial notice. He argues, "not only would such a finding show great disrespect for the judicial system of our neighbor, it would redefine what is meant by the concept of " 'suitability.' "
In her response, Wife explains that her intention was to limit her request to the Tijuana area, and only for the purpose of showing that Tijuana is an unsafe venue for resolution of this dissolution petition. She represents that she intended no generalized indictment of Mexico's courts, but instead believes that the kind of violence potentially affecting these parties is so universally known that those social conditions are subject to compulsory judicial notice. (Evid. Code, § 451, subd. (f).) However, if optional notice is needed, she has submitted these newspaper articles.
Anyone living in a border region, such as the San Diego area, is unavoidably exposed to news about the neighboring areas, including the economic and social conditions and interactions between citizens of the two areas. The members of this court, like other members of the public, are mindful of widespread media reports of the recent dangers besieging residents and visitors to the Tijuana area, including not only kidnapping, but also drug violence and other civil unrest. It is, however, inappropriate under Evidence Code section 451, subdivision (f) to consider these constantly fluctuating circumstances to be items "of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute."
We do not believe this is a proper subject for optional judicial notice, and we decline to take judicial notice of the 26 articles clipped from various sources of news. The information in them is not necessarily universally known, even if "widely believed," and these conditions are undoubtedly controversial and might be a proper subject of expert testimony. (See 1 Witkin, Cal. Evidence, supra, Judicial Notice, § 35, p. 130.) Consideration of these circumstances is not essential to our de novo determination of whether Mexico may provide a suitable forum for resolution of a dissolution petition involving these parties.
2. Orders Showing Status of Proceedings in Mexico
Next, Wife seeks judicial notice of a November 3, 2008 court order in Mexico, authenticated by her Mexican attorney, that was issued by a family court judge in Baja California, suspending the proceedings on Husband's dissolution petition there, for lack of jurisdiction. The attorney states that the usual procedure in such a case is to transfer the file to the State Superior Tribunal of Justice ("Superior Tribunal") for review of that family court conclusion, and that such review normally takes at least five months (from the transfer of the matter).
In reply, Husband supplies a declaration from his Mexican attorney that was filed in the San Diego family court proceedings, showing that as of December 19, 2008, the Mexican divorce action was still active and still being processed in the Mexican court, due to difficulties in serving Wife, that led to Husband's request to serve her by publication. Wife then filed an objection to jurisdiction, which led to the stay order and transfer to the Superior Tribunal. While the transfer was being processed, settlement discussions were conducted, and Wife requested in December 2008 that the file not be transferred after all.
Husband makes several complicated arguments that the authentication of the foreign stay and transfer order is inadequate under Evidence Code sections 1530, subdivision (a)(3) and 753, subdivision (a) (official certification and translation required), and a date is lacking, contrary to section 2015. He further relies on Evidence Code section 1454 for the procedure to admit such documents into evidence. However, he does not explain why he provided similar information, from his own Mexican attorney.
Wife's reply to the opposition states that all settlement discussions have broken down, and she supplies a copy of the materials filed in San Diego Superior Court by Husband, from his Mexican attorney, showing that he filed a document in that proceeding on January 12, 2009, requesting that the Mexican family court's file be sent to the Superior Tribunal, due to the breakdown of settlement talks.
Each side has made a showing, and it is apparently undisputed, that the conditional dismissal by the superior court in San Diego has not been completed, due to the ongoing rulings and transfer requests between the family court and the Superior Tribunal in Mexico that were intended to resolve the jurisdictional issues. This course of events falls within the scope of appropriate judicial notice of foreign court orders, and the declarations of counsel, filed in this proceeding regarding the events in the Mexican courts, appear to be reliable within the meaning of Evidence Code sections 452, subdivision (f) and 454, subdivision (b). (1 Witkin, Cal. Evidence, supra, Judicial Notice, § 40, p. 135.) We think these circumstances enable us to take judicial notice of the jurisdictional litigation taking place in the Mexican courts, consistent with the parties' filings.
Accordingly, Wife's request for judicial notice of the newspaper articles is denied, but it is granted as to the documentation supplied by both parties of the jurisdictional proceedings in the Mexican divorce matter. Any objection by Husband to judicial notice was waived by his submission of similar documents.
II FORUM NON CONVENIENS: ANALYSIS
When a motion is brought to stay or dismiss a case on the basis of forum non conveniens, the courts will follow the procedure set forth in Stangvik: "In determining whether to grant a motion based on forum non conveniens, a 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." (Stangvik, supra, 54 Cal.3d at p. 751.) Husband, as the moving party, bears the burden of proof on a motion based on forum non conveniens. (Ibid.)
A. Suitability of Forum: De Novo Review
The threshold determination of whether an alternative forum is suitable is nondiscretionary, subject to de novo review on appeal. (Chong, supra, 58 Cal.App.4th 1032, 1036-1037; Stangvik, supra, 54 Cal.3d at p. 752, fn. 3; American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436-439 (American Cemwood Corp.) [suitability determination includes inquiry into whether alternative forum is actually available and feasible].)
The trial court initially ruled that Mexico could provide a suitable forum. "A forum is suitable if there is jurisdiction and no statute of limitations bar to hearing the case on the merits. [Citation.] '[A] forum is suitable where an action "can be brought," although not necessarily won.' [Citation.]" (Chong, supra, 58 Cal.App.4th 1032, 1036-1037.)
Wife, as a California resident, first argues Mexico is not a suitable forum, because the parties moved to the United States in 2006, and although she returned to Tijuana when they split up, that was on a temporary basis. When she moved for reconsideration, she emphasized that she had returned to the United States the week before the hearing, due to intensified security concerns that she blamed on Husband's filing of the petition in Mexico, including financial information. Husband had been residing in the United States consistently since 2006, and did not have immediate plans to return.
As explained above, we deem it inappropriate and unnecessary to take judicial notice on appeal of the 26 news articles that Wife has submitted to show there are ongoing threats of kidnapping of well to do Mexican citizens in the Tijuana area. In any case, similar materials were presented in connection with her reconsideration motion (three similar articles and two U.S. Department of State travel alerts). Even if we accept her allegations about known risks of kidnapping to persons such as herself, in Tijuana, there is nothing inherent in the dangers of Baja California or Tijuana communities that would prevent the civil courts of Mexico from functioning to resolve disputes, such as this one. We have been given no indication that those courts are unable to function under all the current circumstances, and in fact, there is a pending appellate review of whether the courts there may assert jurisdiction over Wife, over her objection. On de novo review, we are unable to conclude that the Tijuana family courts cannot provide a suitable forum for resolution of dissolution matters.
B. Balancing of Interests: Review for Abuse of Discretion
The trial court has discretion in balancing forum-related interests and its determination is given substantial deference on appeal. (Stangvik, supra, 54 Cal.3d at p. 751-752.) A reviewing court does not undertake a discretionary reweighing of the factors relating to forum selection, nor substitute its judgment for that of the trial court in discretionary matters. (Ibid.; Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) We next address the remainder of the trial court's ruling on forum non conveniens issues, to evaluate its exercise of discretion in ordering the conditional dismissal of the action.
Analysis of private and public interest factors "must be applied flexibly, without giving undue emphasis to any one element." (Stangvik, supra, 54 Cal.3d at p. 753.) The relevant elements are identified as follows:
"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 the litigation. [Citations.]" (Stangvik, supra, at p. 751; italics added.)
In some cases, a plaintiff's choice of forum in her state of residence may be afforded substantial weight. (Chong, supra, 58 Cal.App.4th at p. 1038.) The state has strong interests in assuring that its own residents will have an adequate forum for the resolution of disputes. (Stangvik, supra, 54 Cal.3d at p. 755.) This rule is difficult to apply here because Wife has alternated between places of residence several times since 2006. She explains this by saying that she filed her petition in San Diego in October 2007 and immediately brought a request for an order to show cause why she should not be restored to the family residence here, but the court continued the matter from January to March 2008, because of the pending motion to quash.
In reply, Husband contends the balance of private interest factors is in his favor, because of the presence of witnesses and evidence concerning the marriage and property in Mexico, and the resulting practical procedural difficulties in litigation. However, the current state of litigation technology has no doubt reduced the difficulties in conducting discovery, and both parties appear well able to afford litigation anywhere. Husband filed two other separate motions in the San Diego court while his motion to quash was pending (specially appearing), and Wife likewise has appeared specially in the Mexican courts; both are still working in cross-border family businesses and are able to travel.
When discussing the public interest factors, the trial court acknowledged that local family courts have congested calendars, and stated that Mexican courts probably have a greater ability to and interest in interpreting Mexican law that controls the prenuptial agreement and the type of marital property involved. The court concluded "this case can be more appropriately and justly tried in Mexico."
Both the public and private interest factors in this case, and all the relevant circumstances, could have appropriately been assessed by the trial court to justify a rejection of Wife's claim that California is the most convenient forum for resolution of this case. Although this is a close case, it was not outside the bounds of reason for the family court to accept Husband's version that the private interest factors supported jurisdiction in Mexico, regarding obtaining and enforcing dissolution orders. The court obtained information about the entire picture of the parties' relationship, including their very close connections to Mexican family, business, and evidently social and cultural mores. Their connection to San Diego could appropriately be viewed as a temporary sojourn or flight from Mexico, as opposed to any intent to establish meaningful United States and California ties. Even though both Husband and Wife, as well as the child, were apparently residing in the United States at the time of both the original hearing on the motion and at the time of reconsideration, that situation was still in flux and was likely to remain so.
During the hearing, the trial court warned counsel against games-playing between the two forums, and ordered that the dismissal was subject to service on Wife of the Mexican divorce action, for a proceeding to take place in Tijuana. The court was no doubt aware Husband might believe it was in his best interests to litigate the matter in Mexico, where community property principles are less prevalent than in California. The court showed an awareness of various potential problems during the balancing process, and made an effort to forestall them, and we are loathe to substitute our judgment for that of the trial court in this discretionary arena. We cannot say there was any abuse of discretion in the trial court's balancing of the relevant interests.
C. Further Proceedings
We have concluded Mexico is a suitable alternative forum under the standards set forth in Stangvik, supra, 54 Cal.3d 744, and other such authority, and that the trial court did not abuse its discretion in its weighing of the relevant public and private interest factors under the applicable tests. We nevertheless conclude the trial court's order reflects a failure to make a complete and sufficient exercise of its discretion under these circumstances, because further safeguards were required to ensure that the parties are actually afforded a forum in Mexico, as anticipated. (See American Cemwood Corp., supra, 87 Cal.App.4th 431, 436.)
Specifically, in addition to conditionally dismissing the case, the court must satisfy itself that the condition it imposed has been fulfilled, in that Wife is being actually subjected to jurisdiction in Mexico. At this point in the proceedings, the most recent information in this record is that jurisdictional inquiries are still ongoing in the Superior Tribunal in Mexico, such that the conditional dismissal by the San Diego family court could not have been finalized (even allowing for the stay imposed by this appeal). The appropriate method for providing adequate oversight over these jurisdictional problems is for the trial court to stay, rather than dismiss, this California petition, subject to certain conditions regarding monitoring of the proceedings in Mexico. (See, e.g., Chong, supra, 58 Cal.App.4th at pp. 1035, 1038-1039 [court of appeal directed trial court to stay California action during pendency of Hong Kong action]; Stangvik, supra, 54 Cal.3d at p. 752 [upheld trial court order staying California action subject to conditions that defendants submit to jurisdiction in Scandinavia, as well as other conditions such as tolling of applicable statutes of limitations].)
Finally, when evaluating the status of the proceedings, the court may exercise its discretion to entertain any requested proceedings, if any are appropriate and necessary, regarding the applicability of the UCCJEA. (Fam. Code, § 3400 et seq.)
DISPOSITION
The order is affirmed in part and reversed in part, and the matter is remanded with directions that the trial court vacate the order dismissing Wife's petition and issue a new order granting a stay of Wife's action, subject to the following conditions (and such other conditions the court may deem appropriate): (1) during the pendency of Husband's Mexican action, the court must require the parties to report to the court on a regular basis about any final resolution of Wife's jurisdictional challenges there; and (2) in the event the Mexican courts dismiss Husband's action for lack of jurisdiction over Wife or otherwise refuse to resolve the merits of the case, the trial court may dissolve the stay and resume proceedings in this California action. The judicial notice request is granted in part (proceedings in Mexico) and denied in part (news articles). Each party to bear its own costs on appeal.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.