Opinion
No. B165388.
7-29-2003
SMITHKLINE BEECHAM CORPORATION, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. MARIA AVARE, et al., Real Parties in Interest.
Drinker Biddle & Reath, Vernon J. Zvoleff, Thomas W. Pulliam, Jr., Rodney M. Hudson, David J. Fleming and Mario Horwitz; King & Spalding, Chilton D. Varner, Andrew T. Bayman and Todd P. Davis, pro hac vice, for Petitioner. No appearance for Respondent. Baum, Hedlund, Aristei, Guilford & Schiavo, Karen A. Barth and George W. Murgatroyd III; Donald J. Farber for Real Parties in Interest.
Smithkline Beecham Corporation d/b/a GlaxoSmithKline (GSK) filed a petition for writ of mandate directing respondent Superior Court to vacate its order denying GSKs motion to dismiss the Real Parties in Interest ("the Real Parties") on the grounds of forum non conveniens. The Real Parties (along with four residents of Los Angeles County) filed an action for personal injuries they allegedly suffered as a result of taking Paxil, a prescription pharmaceutical drug manufactured and marketed by GSK. In its petition, GSK argues the trial court abused its discretion in failing to dismiss the Real Parties because neither they nor any of the events giving rise to their respective claims have any connection to California. GSK points out the Real Parties are not residents of California, were not prescribed Paxil in California and did not receive treatment in California, nor are any of the documents or fact witnesses relating to their cases located in California. GSK further notes it is a Pennsylvania Corporation with its principal place of business in Pennsylvania and that it did not design, test, or manufacture Paxil in California. There is no dispute each of the Real Parties has a suitable alternative forum in which to pursue his or her claim. As we shall discuss herein, the balance of equitable factors relevant to the forum non conveniens analysis warrants dismissal of the Real Parties. Consequently, we conclude the court erred in denying the motion to dismiss and accordingly, we grant the writ of mandate.
FACTUAL AND PROCEDURAL HISTORY
In late January 2002, fifteen plaintiffs filed the instant action against GSK alleging causes of action for fraud, deceit, negligence, strict products liability and breach of warranties arising from plaintiffs use of the prescription anti-depressant drug Paxil manufactured by GSK. Plaintiffs claimed to have suffered a host of harmful reactions as a result of taking Paxil and/or as a result of discontinuing use of the drug. Plaintiffs further alleged GSK failed to warn plaintiffs and their treaters about Paxils possible side effects and dependency symptoms.
The complaint alleged four plaintiffs are residents of Los Angeles County and that another plaintiff is a resident of Pennsylvania. The complaint does not reveal the Pennsylvania residents connection to California. The complaint is also silent as to the state of residency of the Real Parties who are the other ten plaintiffs in the action. It further fails identify where any of the plaintiffs received treatment with Paxil.
GSK is a Pennsylvania Corporation with its principal place of business in Pennsylvania. GSK did not design, test, manufacture or package Paxil in California, nor are any of the relevant documents or GSK employees in California.
On March 1, 2002, GSK filed a demurrer to the complaint claiming plaintiffs were improperly joined in the action. The court overruled the demurrer and GSK answered the complaint.
In May 2002, GSK began discovery and propounded interrogatories and document requests upon plaintiffs. In June 2002, in response to the discovery, GSK learned for the first time the Real Parties are not residents of California and they reside in nine different states. Over the next five months through numerous supplemental discovery requests and responses and a meet and confer process, GSK identified a total of 260 potential healthcare provider witnesses or facilities that had relevant information concerning the ten non-resident Real Parties and discovered none of these healthcare providers are located in California and are instead located in 18 different states. GSK also identified other non-resident fact witnesses such as the Real Parties family members, friends and coworkers who could potentially provide evidence concerning the claimed subjective injuries.
On January 15, 2003, GSK filed a motion to dismiss the ten non-resident Real Parties pursuant to Code of Civil Procedure section 410.30 on the basis of forum non conveniens. GSK argued all of the evidence relevant to the Real Parties claims, including all of the witnesses and documents are in jurisdictions other than California and that California has no connection whatsoever to their cases. GSK also agreed to toll the statute of limitations as to the Real Parties to allow them the opportunity to re-file their claims in their home states. At the hearing on the motion, GSK further indicated it would agree to allow completed discovery to be used in any subsequent litigation the Real Parties file in their home states.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
At the hearing, the court announced its tentative decision to dismiss the Real Parties, because among various reasons, the fact witnesses, other than the Real Parties would not be subject to compulsory process and consequently, GSK would be relegated to the use of deposition transcripts and videotaped depositions at trial. The court noted the use of such evidence was time consuming, confusing to the jury and ineffective. Notwithstanding these observations, the court subsequently, summarily denied the motion.
GSK filed a petition for a writ of mandate and this court issued an Order to Show Cause.
DISCUSSION
GSK requests writ relief asserting the lower court exceeded the bounds of reason when it denied the motion to dismiss the Real Parties on the grounds of forum non conveniens. In response, Real Parties assert: (1) GSK is not entitled to seek writ relief; and in the alternative, (2) the trial court properly exercised its discretion in denying the motion. We examine these arguments in turn.
I. GSK May Seek Writ Review of this Matter.
In their response to the writ petition, the Real Parties argue at some length GSK is not entitled to writ review of the denial of its motion. Specifically they assert that because GSK failed "to make a forum non conveniens motion before the general appearance and with the demurrer or motion to strike, under section 418.10, it waived the issue of inconvenient forum, and thus its right to writ review for denial of such motion." We disagree.
While the failure to seek dismissal under section 418.10 based on forum non conveniens grounds effectively waives the right to seek such a dismissal based on the bare allegations of the complaint, it is not true GSK was thereafter forever precluded from asserting a valid forum non conveniens motion to dismiss. A defendant may, after its general appearance, seek dismissal of the action based on forum non conveniens grounds under section 410.30-the section under which CSK filed its motion.
Section 418.10 provides, in pertinent part: "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: . . . (2) To stay or dismiss the action on the ground of inconvenient forum. [PP] (e) . . . (2) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution."
Section 410.30 provides: "(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.
"(b) The provisions of Section 418.10 do not apply to a motion to stay or dismiss the action by a defendant who has made a general appearance."
In addition, where as here, the trial court rejects the section 410.30 motion to dismiss, this court has the inherent discretionary authority to grant writ review of the lower courts ruling. (International Harvester Company v. Superior Court (Sears, Roebuck & Company) (1979) 97 Cal. App. 3d 652, 655, 656; see Roulier v. Cannondale (2002) 101 Cal.App.4th 1180.) This courts equitable power to review by way of writ petition, a trial courts exercise of discretion is beyond question. (See e.g., Chambers v. Superior Court of Shasta County (1981) 121 Cal. App. 3d 893, 175 Cal. Rptr. 575 [court of appeal reviewed PAGE CONTAINED FOOTNOTES (on a petition for writ of mandate) the trial courts discretionary order to disqualify plaintiffs counsel].) Real Parties reliance on case law, which concerns courts refusal to review (on a writ petition) the discretionary acts of administrative bodies or public functionaries, is inapt.
Furthermore, where the trial courts order shows an abuse of discretion (i.e., it is erroneous as a matter of law) and substantially prejudices or harms the petitioners case in a manner which cannot be corrected on appeal, and/or where the party seeking relief lacks an adequate remedy at law, such as a direct appeal, then mandate may lie. (Chambers v. Superior Court of Shasta County, supra, 121 Cal. App. 3d at pp. 896-897; National Life of Florida Corporation v. Superior Court (Cuthbertson) (1971) 21 Cal. App. 3d 281, 288, 98 Cal. Rptr. 435 ["Mandate lies to control judicial discretion when such discretion has been abused . . .".].) As set forth more fully below, such is the case here.
II. The Trial Court Abused Its Discretion in Denying the Motion to Dismiss.
Under the forum non conveniens doctrine, a trial court has the discretion to dismiss an action when the action would be "more appropriately and justly tried" in another jurisdiction. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751, 819 P.2d 14.) Section 410.30, subdivision (a) codifies the doctrine. It provides in part: "When a court ... 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." ( § 410.30, subd. (a).)
To prevail on a forum non conveniens motion, the defendant must first establish the alternate forum is a "suitable" place for trial, i.e., the plaintiff can bring suit there and the action is not barred by the statute of limitations. (Stangvik v. Shirley, Inc., supra, 54 Cal.3d at p. 751; Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 412, 68 Cal.Rptr.2d 132.) If the defendant satisfies this test, the defendant must then show that litigating the matter in the other forum is supported by "private interest" factors—such as access to evidence, the cost of bringing witnesses to trial, and the availability of compulsory process for attendance of unwilling witnesses—and "public interest" factors—such as not overburdening courts with congested calendars, protecting the interest of 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 alternative forum. (Ibid.) No single factor should predominate the analysis; all factors are weighed together. (Stangvik v. Shirley, Inc., supra, 54 Cal.3d at p. 753.)
Appellate review of a ruling on public factors is governed by the abuse of discretion standard. While this court affords deference to the lower courts resolution of this issue, we nonetheless scrutinize the lower courts decision to determine if the ruling exceeds the bounds of reason. The exercise of discretion may not be arbitrary; it must be exercised in conformity with the spirit of the law and in a manner to serve justice. The abuse of discretion standard ... measures whether the act of the lower tribunal is within the range of options available under governing legal criteria in light of the evidence before the tribunal. [Citation.]" (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 7-8.) Where the balance of the factors "weigh heavily in the defendants favor it becomes the [trial] courts duty to apply the doctrine" and failure to do so amounts to an abuse of discretion. (Outboard Marine Corporation v. Superior Court (Boyd) (1976) 59 Cal. App. 3d 434, 439, 130 Cal. Rptr. 642.)
The threshold issue in the forum non conveniens analysis is not at issue here. GSK and Real Parties agree alternative suitable forums exist where Real Parties may bring their respective actions, and GSK has agreed to toll the statute of limitations to allow them to assert their claims. Thus, the only remaining question is whether the trial court properly balanced the competing private and public factors in making its decision.
We conclude it did not. In the first place we note neither the Real Parties nor GSK are California residents. The ten Real Parties reside in nine states other than California. GSK is a Pennsylvania Corporation with its principal place of business in Pennsylvania. GSK has shown it did not design, test, manufacture or package Paxil in California, and that none of the relevant documents or GSK employees are located in California. Where, as here, the plaintiff resides in a different jurisdiction than where he or she has filed suit, his or her choice of that forum is not entitled to the same preference given a plaintiff who files suit in the jurisdiction of which he or she is a resident. "At best," the fact a plaintiff has chosen to file his or her complaint in California "is not a substantial factor in favor of retaining jurisdiction here." (Stangvik v. Shiley Inc., supra, 54 Cal.3d at pp. 754-755 & fn. 7; Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1541, 1543.) As our Supreme Court noted in Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 126 Cal. Rptr. 811, 544 P.2d 947, "the exception case which justifies the dismissal of a suit under the doctrine . . . is one in which California cannot provide an adequate forum or has no interest in doing so. Examples would include cases in which no party is a California resident. . . ." (Id. at p. 859.)
GSK has also shown the "private interest" factors favor dismissal. None of the evidence concerning Real Parties cases is located in California. Real Parties injuries did not occur in this state; they were prescribed Paxil elsewhere. Likewise, the 260 healthcare witnesses and countless other fact witnesses necessary to resolve the issues of causation and damages are beyond Californias borders and none of them can be compelled to appear at trial. GSK would be forced to present evidence from these witnesses through deposition transcripts and videotapes of deposition proceedings-a circumstance that even the trial court noted would complicate the trial and bore and confuse the jury. In addition, costs of travel, food and housing witnesses who agreed to appear would be prohibitive.
GSK has also shown the "public" factors fall in its favor. Allowing this matter to proceed to trial in this state would be contrary to Californias interest in avoiding the clogging of its courts with litigation of actions concerned almost exclusively with out-of-state residents. GSK has demonstrated that the Real Parties involvement in this litigation would complicate the issues at trial and dramatically increase the length of the trial. It is of little significance that the court and jury has to resolve the case as to the resident plaintiffs. The fifteen different plaintiffs have a myriad of different subjective complaints about the effects of Paxil. In addition to their individual testimony, the trial would likely include testimony from many other witness, such as plaintiffs treaters, family, friends and co-workers. Furthermore, the jury would be required to sift through and apply the complex tort laws of ten different states. California jurors have little interest in deciding matters that do not involve other Californians. Thus, this trial would impose a significant burden on the trial court and the jurors. Finally, we conclude the interests of the states where the Real Parties reside are paramount. Their home states have a substantial interest in protecting their residents who may suffer tort injuries as a result of taking prescription drugs.
At bottom, Real Parties opposition to the motion centers on the complaints GSK waited nearly a year after the Real Parties filed the action before bringing the forum non conveniens motion, and dismissal at this stage would be unequitable given the amount of the discovery that has already been conducted in the action. The problem with these contentions is that the Real Parties are largely responsible for these state of affairs, i.e., for the delay in resolving this issue. Had the Real Parties timely disclosed their residency in the original complaint, GSK would have been on notice of the grounds for a forum non conveniens motion far earlier in the litigation. Given the lack of information provided by the Real Parties and the amount of discovery necessary for GSK to learn about the other non-resident witnesses, the six month delay from Real Parties disclosure of their residency to the filing of the motion to dismiss was not unreasonable. Moreover, Real Parties will not lose the benefit of the discovery conducted in this litigation because GSK has agreed the protective order entered in this case and the discovery conducted to date can be used in the separate actions Real Parties may subsequently file in their home states.
We note that Real Parties alleged one of the fifteen plaintiffs was not a California resident. Nonetheless, the inconvenience posed by the non-residency of one plaintiff (and a handful of non-resident treaters and witnesses as to that plaintiff) would not necessarily warrant dismissal on forum non conveniens grounds.
In our view, if the trial courts order denying the motion to dismiss stands, GSK would suffer substantial prejudice which a subsequent appeal could not adequately ameliorate. As a matter of law, the balance of equities warrants dismissal of Real Parties. Consequently, we conclude the trial court abused its discretion when it denied the motion to dismiss the Real Parties. We, therefore issue the writ of mandate.
DISPOSITION
A writ of mandate shall issue directing respondent to vacate its order denying petitioners motion to dismiss the complaint as to Real Parties in Interest and to issue a new and different order granting the motion to dismiss the complaint as to the Real Parties in Interest. Petitioner to recover costs on this proceeding.
We concur: PERLUSS, P.J. JOHNSON, J.