Conway v. Martin CA2/4 ( 2015 )

Filed 4/29/15 Conway v. Martin CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DANIEL CONWAY, B257254
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC501588)
v.
JOSEPH PATRICK MARTIN, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ernest
M. Hiroshige, Judge. Affirmed.
The Dion-Kindem Law Firm, Peter R. Dion-Kindem, for Defendant and
Appellant.
Law Offices of Cary W. Goldstein, Cary W. Goldstein and Sarah C. Clark, for
Plaintiff and Respondent.
Defendant and appellant Joseph Patrick Martin, Jr. challenges the trial court’s
order staying several of his cross-claims on forum non conveniens grounds. We deny his
request for judicial notice and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and respondent Daniel Conway sued Martin pursuant to Marvin v. Marvin
(1976) 18 Cal. 3d 660, which recognized as enforceable express or implied contracts
between nonmarital partners. Conway’s complaint mentioned a vacation home in
Mexico (“the Mexico home”) but none of his four asserted causes of action for breach of
contract, partition of personal property, conversion of personal property, and promissory
estoppel pertained directly to the Mexico home.
Martin generally denied all of Conway’s allegations and asserted thirteen
affirmative defenses, including set-off. Martin also filed a cross-complaint alleging
causes of action for false imprisonment, intentional infliction of emotional distress,
conversion, and partition and sale of the Mexico home. He alleged that Conway
converted furniture located in the Mexico home and intentionally inflicted emotional
distress upon him by falsely imprisoning him in the bedroom of the Mexico home for
approximately twelve hours on January 1, 2013.
Conway moved to stay Martin’s cross-complaint under the doctrine of forum non
conveniens.1 Conway argued that Mexican courts provided a suitable alternative forum
in which Martin could adjudicate his claims. In support of this contention, Conway cited
cases in which federal and California courts made that very finding. Conway also
provided a declaration from Mauricio Leon de la Barra (Leon de la Barra), an attorney
licensed to practice in California and all of the states of Mexico who formerly chaired the
International Law Section of the Los Angeles County Bar Association. Leon de la Barra
1
Conway waited ten months after Martin filed his cross-complaint to file his
motion. Martin did not cite this delay in his opposition to the motion, and does not raise
it on appeal, even though Courts of Appeal have found similar delays significant in other
forum non conveniens cases in which discovery was underway when the motion was
filed. (See Martinez v. Ford Motor Co. (2010) 185 Cal. App. 4th 9, 18; Roulier v.
Cannondale (2002) 101 Cal. App. 4th 1180, 1185, 1191 (Roulier).)
2
stated that “each of Martin’s cross-claims may be brought under the law of Mexico in the
civil courts of Mexico, specifically, in the State of Oaxaca, where the events pled in the
cross-complaint are alleged to have occurred and where the subject real and personal
property is located.” Leon de la Barra further opined that “[t]he civil courts of Mexico
are authorized by law to adjudicate claims of the type Martin has alleged in this action as
cross-claims” and “will adjudicate such claims if Martin commences an action there.” He
also stated that “a limitations period of two years governs the cross-claims as Martin may
bring them in the civil courts of Mexico.”
Conway further argued that both private and public interests favored adjudication
of the cross-claims in Mexico. Private interests 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.” (Stangvik v.
Shiley, Inc. (1991) 54 Cal. 3d 744, 751 (Stangvik).) Conway contended that all of the
witnesses he intended to call to refute Martin’s cross-claims resided in Mexico and were
unwilling and/or unable to travel to the United States. Conway attached declarations
from all six of these witnesses to his motion. He also asserted that “Martin has stipulated
to the jurisdiction of the civil courts of San Pedro Pochutla, Oaxaca, Mexico, in all
matters concerning the property,” and attached a “comodato” written in Spanish that
purportedly contained Martin’s stipulation. One of Conway’s witnesses, a signatory to
the comodato, declared that the “fifteenth clause provides that Conway, Martin, and I
submit to the jurisdiction of the local communal land council in all matters and disputes
concerning” the Mexico home. As to the public interests, Conway contended that factors
such as “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” (Stangvik, 54 Cal. 3d at p. 751),
also favored the Mexican forum.
3
Martin opposed Conway’s motion. Martin argued that there was “no justification
to stay the prosecution of Martin’s cross-claims pursuant to the forum non conveniens
doctrine.” He contended that Conway failed to show that he (Martin) could obtain an
enforceable judgment in Mexico, dismissing Leon de la Barra’s declaration as “purely
conclusory” and Conway’s brief as bereft of citations to “any law or statute in Mexico
that recognizes the viability” of the cross-claims or “law establishing that a judgment
obtained in Mexico by Martin against Conway would be enforceable against Conway.”
Martin further challenged Conway’s weighing of the private and public interest factors.
In response to Conway’s assertion that key witnesses would be unavailable if the
proceedings continued in California, Martin, citing Roulier, supra, at p. 1189, offered to
“stipulate to the use of video-taped depositions of such witnesses at trial in California.”
As to the public interest factors, Martin pointed out that both he and Conway are
California residents and argued that “[i]nterests in judicial efficiency and minimizing
litigation costs also favor maintaining all the claims as one contiguous action in
California.” He further contended that his cross-complaint “raises issues that are directly
related to Conway’s claims” such that “requiring Martin to pursue his cross-claims in
Mexico would simply result in the trial of identical issues in two separate forums,” and
attached in support excerpts from Conway’s deposition concerning promises and alleged
damages pertaining to the Mexico home. He did not mention the comodato or challenge
Conway’s evidence interpreting its provisions.
In reply, Conway argued that Martin “effectively admit[ted]” that Mexico was a
suitable forum for the cross-claims by failing to cite facts or law to the contrary. He
nonetheless filed a supplemental declaration from Leon de la Barra opining that Mexican
courts “would be entitled to enter judgment against Conway on claims of the types
Martin has alleged as cross-claims” and reiterated his contention that Martin had
stipulated to jurisdiction of the Mexican courts in the comodato. Conway also challenged
Martin’s assertions that the cross-claims were inextricably intertwined with the causes of
action pleaded in the complaint, contended that Martin’s reliance on Conway’s deposition
testimony instead of the allegations of the complaint was improper, and argued that
4
Martin “misapplies Roulier v. Cannondale, and his offer to use videotaped depositions of
Conway’s witnesses is a plainly inadequate solution.”
On May 30, 2014, the court granted Conway’s motion to stay Martin’s cross-
claims for false imprisonment, intentional infliction of emotional distress, and partition of
the Mexico home but denied the motion as to Martin’s cross-claim of conversion. In its
minute order, the court explained that “the basis of the Tentative Ruling” – which is not
in the record – “stands and in addition, the Court incorporates, by this reference,
Conway’s moving and reply papers as further justification and rationale for this ruling.”
Martin timely appealed.
DISCUSSION
I. Request for Judicial Notice
After appellate briefing was complete, Martin filed a request for judicial notice
pursuant to Evidence Code sections 451, subdivision (f) and 452, subdivision (h). He
requested that we take judicial notice of a translation of paragraph 15 (and only paragraph
15) of the comodato, the provision purportedly containing his consent to jurisdiction in
Mexico. We denied the request without prejudice, noting that the certificate of accuracy
by the translator was signed by “TranZlations,” rather a “person” able to authenticate the
document. Martin subsequently refiled his request for judicial notice of the translated
paragraph, this time accompanied by a notarized certification signed by Diana V. Valori,
an “accredited translator registered with the American Translators Association and
certified to translate both from English into Spanish and from Spanish into English.”
Conway did not oppose the request.
We nonetheless deny the request. “Reviewing courts generally do not take
judicial notice of evidence not presented to the trial court. Rather, normally ‘when
reviewing the correctness of a trial court’s judgment, an appellate court will consider only
matters which were part of the record at the time the judgment was entered.’ [Citation.]”
(Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 444, fn. 3 (Vons
Companies, Inc.); see also Hahn v. Diaz-Barba (2011) 194 Cal. App. 4th 1177, 1194
(Hahn) [“‘“An appellate court may properly decline to take judicial notice . . . of a matter
5
which should have been presented to the trial court in the first instance.”’ [Citation.]”].)
Here, the trial court had before it only the untranslated comodato and a declaration from
the Mexican signatory attesting to its tenor and the contents of three of its clauses.
Martin has not indicated that any exceptional circumstances precluded him from
obtaining a translation earlier in the proceedings (Vons Companies, Inc., supra, 14
Cal.4th at p. 444, fn. 3) or merit our taking notice of the short excerpt now. Moreover,
the translation is not necessary to our resolution of this appeal. Accordingly, the request
is denied.
II. Forum Non Conveniens
A. Applicable Law
“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, supra, 54 Cal.3d at p. 751.) The doctrine is codified in Code of Civil
Procedure section 410.30, which provides in subdivision (a) that “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.”
The California Supreme Court set forth in Stangvik a two-step procedure for trial
courts to follow when analyzing whether an action should be dismissed or stayed on
forum non conveniens grounds. First, the court “must determine whether the alternate
forum is a ‘suitable’ place for trial.” (Stangvik, supra, 54 Cal.3d at p. 751.) “This is a
nondiscretionary determination.” (Chong v. Superior Court (1997) 58 Cal. App. 4th 1032,
1036; see also Stangvik, supra, 54 Cal.3d at p. 752, fn. 3.) “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 at p. 1036-1037.) In rare circumstances
where the proposed alternative forum is in a foreign country that lacks an independent
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judiciary, a forum that meets the standard criteria nonetheless may be unsuitable. (Id. at
p. 1037.)
If the “threshold inquiry” (Stangvik, supra, 54 Cal.3d at p. 752, fn. 3) of suitability
is satisfied, “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” (id. at p. 751). “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.” (Ibid.) Courts must consider these factors
“flexibly, without giving undue emphasis to any one element. A court should not decide
that there are circumstances in which the doctrine will always apply or never apply.
Otherwise, the flexibility of the doctrine would be threatened, and its application would
be based on identification of a single factor rather than the balancing of several.” (Id. at
p. 753.)
The moving party bears the burden of proof. (Id. at p. 751.)
B. Standards of Review
There is a split of authority regarding the standard of review applied to the
threshold suitability inquiry. (See National Football League v. Fireman’s Fund
Insurance Company (2013) 216 Cal. App. 4th 902, 918; see also Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 8:104b.) The
Stangvik court appears to have applied the substantial evidence standard (see Stangvik,
supra, 54 Cal.3d at p. 754 [“In the present case, the trial court found that Sweden and
Norway were adequate alternative forums. . . . [T]he trial court’s determination of these
issues is supported by substantial evidence, and we defer to its conclusion.”]), and some
courts of appeal cases have applied that standard as well. (See Guimei v. General
7
Electric Co. (2009) 172 Cal. App. 4th 689, 696; Chong v. Superior Court, supra, 58
Cal.App.4th at p. 1038 [“Because there is evidence that Hong Kong courts will continue
to provide due process, Hong Kong remains a suitable alternative forum.”]; Rinauro v.
Honda Motor Co. (1995) 31 Cal. App. 4th 506, 509.) Other courts have concluded that
since suitability of the alternative forum is a nondiscretionary determination, it is subject
to de novo review. (E.g., Investors Equity Life Holding Co. v. Schmidt (2011) 195
Cal. App. 4th 1519, 1528; Hahn, supra, 194 Cal.App.4th at p. 1187; Roulier, supra, 101
Cal.App.4th at p. 1186; American Cemwood Corp. v. American Home Assurance Co.
(2001) 87 Cal. App. 4th 431, 436.) Both parties to this appeal assert that we should apply
the de novo standard of review. We need not resolve the issue; the outcome in this case
is the same under either standard.
The case law regarding the standard of review applicable to the second portion of
the test is more uniform. “The secondary balancing inquiry is subject to an abuse of
discretion standard of review under which we give the court’s determination substantial
deference. (Stangvik, supra, 54 Cal.3d at p. 751; Chong v. Superior Court, supra, 58
Cal.App.4th at p. 1037.)” (Hahn, supra, 194 Cal.App.4th at p. 1187; see also Guimei,
supra, 172 Cal.App.4th at p. 696; Roulier, supra, 101 Cal.App.4th at p. 1188.) We agree
with the parties that an abuse of discretion standard applies to the balancing inquiry.
As in all cases, we abide by the fundamental principles of appellate review: “(1) a
judgment is presumed correct; (2) all intendments and presumptions are indulged in favor
of correctness; and (3) the appellant bears the burden of providing an adequate record
affirmatively proving error.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150
Cal. App. 4th 42, 58.) Thus, to prevail, Martin must demonstrate that the trial court’s
suitability analysis was not supported by substantial evidence or was not legally correct,
and that there is no reasonable or even fairly debatable justification for the trial court’s
balancing of the public and private interest factors (see Hahn, supra, 194 Cal.App.4th at
p. 1195; see also id. at p. 1198 [“we cannot say no reasonable judge would make the
same ruling”]).
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C. Analysis
1. Suitability of Forum
In his opening brief, Martin contends that “Conway simply did not meet his
burden of showing with admissible evidence that Mexico was a suitable alternative
forum, ” because his declaration from attorney Leon de la Barra “did not cite any law or
statute in Mexico that recognizes the viability of Martin’s claims in Mexico” and
“Conway cited no law establishing that a judgment obtained in Mexico by Martin would
be enforceable against Conway.” Martin does not challenge Leon de la Barra’s
credentials or qualification to render an expert opinion, nor does he cite any authority
supporting his implicit contentions that Leon de la Barra’s declaration was inadmissible
or insufficient to demonstrate that Mexico was a suitable forum.
As Conway points out, the Hahn court found admissible and sufficient a very
similar declaration from a Mexican attorney and specialist in international law. (Hahn,
supra, 194 Cal.App.4th at pp. 1192-1193.) At least one other court likewise accepted
expert testimony as evidence on the issue of Mexico’s suitability as a forum (see
Martinez v. Ford Motor Co., supra, 185 Cal.App.4th at p. 18 [“Indeed, Ford’s expert
witness on Mexican law stated, ‘We don’t have discovery in Mexico.’ Although Ford’s
witness may have been slightly exaggerating, we nonetheless accept as well-taken the
point that Ford and Cooper Tire could not have received in Mexico the discovery that
they got while litigating in California.”]) Courts accept expert declarations as evidence
of other issues pertaining to the Mexican legal system as well (see Rosales v. Battle
(2003) 113 Cal. App. 4th 1178, 1183 [relying on expert testimony concerning Mexican
law on marriage].) Martin’s unsupported suggestions that Leon de la Barra’s declaration
was inadmissible or did not constitute substantial evidence accordingly is not persuasive.
The declaration was substantial evidence upon which the trial court was entitled to rely
when evaluating whether Mexico constituted a suitable alternative forum for Martin’s
cross-claims. Moreover, it supported the court’s apparent conclusion – and ours, on de
9
novo review – that Conway was subject to jurisdiction in Mexico and that Martin’s
claims were both viable and timely there.
In his reply brief, Martin tries another tack. Relying on Leon de la Barra’s
testimony that the Mexican statute of limitations applicable to his cross-claims is two
years, he contends that his cross-claims became untimely on January 1, 2015 such that he
can no longer pursue them in a Mexican court. Setting aside both Martin’s reliance on
evidence he earlier challenged as “purely conclusory” and the belated nature of the
argument (see People v. Tully (2012) 54 Cal. 4th 952, 1075 [“It is axiomatic that
arguments made for the first time in a reply brief will not be entertained because of the
unfairness to the other party.”])2 We reject the argument on the merits. Martin has given
us no basis from which to conclude that the expiration of the statute of limitations
approximately seven months after the trial court’s ruling renders Mexico an unsuitable
forum.
It is unclear from the record whether the statute of limitations in Mexico may have
been tolled while Martin’s cross-claims were pending in California. (See Roman v.
Liberty University, Inc. (2008) 162 Cal. App. 4th 670, 683.) Assuming it was not, we
cannot conclude that Martin’s delay in filing his claims overcomes the presumption of
correctness we afford to the trial court’s judgment at the time it issued. At the time the
court ruled, Martin had ample time in which to file his viable claims in Mexico, seek a
stipulation that Conway would not assert the statute of limitations as a defense to the
claims, or take other steps to preserve his claims.3 He evidently did not do so and must
2
We recognize that the limitations period had not lapsed when Martin filed his
opening brief in September 2014. Nonetheless, Martin mentioned the statute of
limitations only once in his opening brief, in his discussion of the standard of review, and
did not make any argument regarding the rapidly closing limitations period so as to alert
Conway to this argument and afford him an opportunity to respond.
3
Code of Civil Procedure section 410.30, subdivision (a) permits the court to
subject its grant of a forum non conveniens motion to “any conditions that may be just.”
Courts have imposed the tolling of statute of limitations in the alternate forum as one
such condition. (See Stangvik, supra, 54 Cal.3d at p. 750, fn. 2.) Martin does not appear
10
bear the consequences of that forbearance. Were it otherwise, a litigant challenging an
adverse forum non conveniens ruling on appeal would have a perverse incentive to delay
its appeal (whether by seeking extensions, filing motions, or employing other strategic
tactics) in an effort to outlast the statute of limitations applicable in the alternate forum
and thereby guarantee victory. We decline to open the door to such tactical maneuvering,
particularly on the facts and record of this case, in which Conway affirmatively asserts he
is subject to jurisdiction in Mexico and in which Martin failed to produce any evidence
refuting Conway’s on the issues of jurisdiction and statutes of limitations.4
2. Balancing of Private and Public Interests
Because we affirm the trial court’s conclusion that the threshold suitability inquiry
was satisfied, we next consider whether the trial court abused its discretion in balancing
the private and public interests. Given the record before us, this is a difficult assessment
to make. The order from which Martin appealed provides little insight into the court’s
weighing of the pertinent considerations. It states simply, “[t]he basis of the Tentative
Ruling stands and in addition, the Court incorporates, by this reference, Conway’s
moving and reply papers as further justification and rationale for this ruling.” Martin has
not provided us with the court’s written tentative ruling or the transcript of the April 15,
2014 hearing, which effectively precludes us from reviewing the court’s exercise of its
discretion. We must presume the court exercised its discretion in permissible fashion,
to have requested a tolling condition below, and it is unclear from the limited record
whether the court imposed one.
4
Martin likewise did not present the trial court with any evidence to refute
Conway’s interpretation of the comodato’s forum selection clause, the application of
which is subject to a different inquiry than the forum non conveniens motion. (Trident
Labs, Inc. v. Merrill Lynch Commercial Finance Corp. (2011) 200 Cal. App. 4th 147,
153.) When a party provides evidence of a forum selection clause, “‘the forum selection
clause is presumed valid and will be enforced unless the [other party] shows that
enforcement of the clause would be unreasonable under the circumstances of the case.’
[Citations.]” (Id. at p. 154.) The trial court is vested with the discretion to enforce a
forum selection clause (ibid.), and the trial court would have been well within its
discretion to enforce the clause here on the record before it.
11
and Martin has not provided an adequate record affirmatively proving otherwise.
(Fladeboe v. American Isuzu Motors Inc., supra, 150 Cal.App.4th at p. 58.) Instead, both
he and Conway proceed as though the matter is subject to de novo review; they outline
the pertinent case law and make arguments as to how the relevant factors should be
weighed but furnish no information (or argument) regarding the court’s exercise of its
discretion, which factors it considered, or how it analyzed, weighed, and balanced them.
We reject their “implicit invitation to engage in a de novo review.” (National Football
League v. Fireman’s Fund Insurance Company, supra, 216 Cal.App.4th at p. 936.) Our
deferential review of the record before us demonstrates that the court’s decision to stay
three of Martin’s cross-claims on forum non conveniens grounds was not an abuse of
discretion. The question may have been a close one, but “‘[a] record presenting facts on
which reasonable minds may differ is not a record establishing an abuse of discretion.’
[Citation.]” (Ali v. U.S.A. Cab Ltd. (2009) 176 Cal. App. 4th 1333, 1351-1352.)
It is reasonable to conclude that the private interest factors, “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” (Stangvik,
supra, 54 Cal.3d at p. 751), weighed in favor of a Mexican forum. Although Martin is
correct that his status as a California resident entitled him to a presumption in favor of his
chosen home-state forum (see National Football League v. Fireman’s Fund Insurance
Company, supra, 216 Cal.App.4th at p. 924; Hahn, supra, 194 Cal.App.4th at p. 1195),
no one factor is determinative. (Stangivk, supra, 54 Cal.3d at p. 753.) Conway submitted
six declarations from witnesses attesting to their inability to attend proceedings in the
United States. Martin made no countervailing showing regarding other witnesses or
sources of proof. Instead, he claimed Conway’s “evidence has no weight” because he was
“willing to stipulate to the use of video-taped depositions of such witnesses at trial in
California.” Martin relied heavily on Roulier, in which the party opposing dismissal or
stay of his California action “stipulated to video depositions of any medical witnesses in
Switzerland.” (Roulier, supra, 101 Cal.App.4th at p. 1189.)
12
Roulier is distinguishable, however. In that case, a resident of Switzerland injured
himself in Switzerland while riding a bicycle manufactured in and purchased from
California. (Id. at p.1183.) He sued both the manufacturer and bicycle store in
California, “alleging causes of action for strict product liability, negligent product
liability, and breach of warranty.” (Id. at p. 1183.) The trial court, whose ruling we
eventually upheld (see id. at p. 1192), denied defendant’s motion to stay or dismiss on
forum non conveniens grounds in part because “[h]aving the matter heard in California
will ease the access to evidence regarding the design and manufacture of the subject
bicycle, both of which took place in the United States,” notwithstanding the presence of
some medical witnesses in Switzerland (id. at p. 1184.). We characterized plaintiff’s
stipulation to video depositions of those witnesses as “an efficient method for making
that evidence available for trial in California.” (Id. at p. 1189.) Here, it is reasonable to
conclude that any efficiency would be undercut by the apparent absence of any evidence
located in California. We agree with Conway that “[i]t is doubtful that the Roulier court
intended that videotaped depositions for all witnesses would be appropriate.” Moreover,
the cross-claims the court stayed pertain to conduct that occurred in Mexico; the nexus
between the causes of action and Martin’s chosen forum is substantially more tenuous
than it was in Roulier.
The public interest factors present a close question. Given the singular nature of
Martin’s cross-claims, court congestion is not a significant consideration. (Roulier,
supra, 101 Cal.App.4th at p. 1190.) The interests of potential jurors could go either way.
On the one hand, the local community is not likely to be concerned with whether a man
was falsely imprisoned in a house in Mexico, or with whom the rights to the house lie,
particularly where the latter dispute involves inquiry into an unfamiliar body of foreign
law. On the other hand, both Conway and Martin are California residents, and one could
argue that a California jury would be concerned with their well-being and the fair
apportionment of their property. Likewise, California has an interest in settling disputes
between its citizens, while Mexico has an interest in deterring tortious conduct within its
borders and in adjudicating claims involving property located there.
13
Martin also contends that some other factors that are neither “public” nor “private”
should have convinced the court to deny Conway’s motion. He asserts that his cross-
claims, particularly his request for partition, are “directly relevant” to Conway’s claims
and should be adjudicated in the same proceeding. In his view, “[i]t is unfair for Conway
to ask a California court to resolve issues regarding alleged partnership assets such [as]
bank accounts and personal property, and at the same time claim that the California court
cannot resolve issues regarding one of the largest alleged partnership assets, the Mexico
Property.” He further argues that he may not be able to present his affirmative defense of
set-off if his cross-claims are not adjudicated in the same proceeding as Conway’s claims.
Conway responds that these factors are “immaterial and inapplicable.”
We agree with Martin that the trial court was entitled to consider these additional
factors if it believed doing so was appropriate. (We reiterate that we do not know
whether it did.) Forum non conveniens is foremost an equitable doctrine, and, as we
noted above (infra, at p. 2, fn. 1), courts do consider factors in addition to those
articulated in Stangvik when resolving forum non conveniens motions. We further agree
that a trial court reasonably could conclude that it would be more efficient and practical
to resolve any dispute over the parties’ interest in the Mexico home contemporaneously
with Conway’s claims regarding their personal property. Nonetheless, we think a court
reasonably could find these factors unpersuasive in light of the uncontroverted evidence
Conway presented regarding the parties’ ownership interest (or lack thereof) in the
Mexico home.5 It would be equally reasonable for a court to conclude that Marvin’s
claims of false imprisonment and intentional infliction of emotional distress are wholly
distinct from Conway’s Marvin claims. It would not be reasonable, however, for a court
to preclude Martin from asserting the affirmative defense of set-off against Conway
because his cross-claims are more appropriately litigated in a different forum. A set-off
“occurs at the end of litigation and ‘is a means by which a debtor may satisfy in whole or
5
We further note Martin’s concession that, on Conway’s evidence, “it appears that
the contractual permissive right of possession” he and Conway had in the Mexico home
“cannot properly be the subject of a real estate ‘partition’ action.”
14
in part a judgment or claim held against him out of a judgment or claim which he has
subsequently acquired against his judgment creditor. The right exists independently of
statute and rests upon the inherent power of the court to do justice to the parties before it.
[Citations.]’ [Citation.]” (Keith G. v. Suzanne H. (1998) 62 Cal. App. 4th 853, 860-861.)
Indeed, Conway concedes that “there is nothing preventing Martin from obtaining a
judgment against Conway in Mexico and using that as an offset defense in this action.”
On the record before us, we cannot conclude that the trial court abused its
discretion by determining that, on balance, the relevant factors favored Mexico rather
than California. We emphasize that our conclusion rests in sizeable part upon our
inability to determine what factors the court considered and how it balanced them. We
hold only that the trial court’s ultimate conclusion was not outside the bounds of reason
on the appellate record before us.
DISPOSITION
The motion for judicial notice is denied and the judgment of the trial court is
affirmed. Costs are awarded to respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.
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