Draper v. R.H. Peterson Co. CA2/3 ( 2021 )

Filed 12/15/21 Draper v. R.H. Peterson Co. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
KAREN DRAPER et al., B303982
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC680137)
v.
R.H. PETERSON CO. et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Gloria White-Brown, Judge. Affirmed.
Klein & Frank, Beth Klein; The Yarnall Firm, Delores A.
Yarnall; Marc J. Bern & Partners and Brian Depew for Plaintiffs
and Appellants.
Wolfe & Wyman, Jason D. Hunter; Prindle, Goetz, Barnes
& Reinholtz and Jack R. Reinholtz for Defendants and
Respondents.
Plaintiffs and appellants Karen Draper (Mrs. Draper) and
Howard George Draper (Mr. Draper) (collectively, Plaintiffs or
the Drapers) appeal an order dismissing their action against
defendants and respondents R.H. Peterson Co. (Peterson) and
Dexen Industries, Inc. (Dexen) (collectively, Defendants)
following the grant of Defendants’ motions to dismiss for forum
non conveniens.1 2
We conclude the trial court properly determined this action
should be litigated in Colorado. We also reject Plaintiffs’ other
arguments and affirm the order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
The Drapers are residents of Snowmass, Colorado. They
allege injuries caused when a propane barbeque exploded at their
home on October 20, 2015, causing serious physical harm to Mrs.
Draper. The barbecue grill was manufactured by Peterson and
included a timer made by Dexen. The Drapers purchased the
grill and timer from a retailer, The Fireplace Company, in
Carbondale, Colorado.
On October 17, 2017, the Drapers filed this action in the
Los Angeles Superior Court, naming Peterson and various Does
as defendants. On November 28, 2018, the Drapers amended
1 An appeal may be taken from “a written order of dismissal
under Section 581d following an order granting a motion to
dismiss the action on the ground of inconvenient forum.” (Code
Civ. Proc., § 904.1, subd. (a)(3).)
2 All unspecified statutory references are to the Code of Civil
Procedure. Also, all rule references are to the California Rules of
Court.
2
their complaint to identify Dexen as Doe number 1. Defendants
filed answers to the complaint.
On January 28, 2019, Dexen filed a motion to dismiss
Plaintiffs’ complaint for inconvenient forum, or in the alternative,
to apply Colorado law. On February 4, 2019, Peterson filed a
joinder in Dexen’s motion. On or about August 5, 2019, Peterson
filed its own motion to dismiss the complaint for inconvenient
forum, or in the alternative, to apply Colorado law. The movants
contended the only connection the parties have to California is
that Peterson and Dexen are corporations with their principal
place of business in California. On the other hand, the grill and
timer were purchased from a Colorado retailer; the propane tank
was filled by Amerigas, a Colorado utility, at Plaintiffs’ home; the
explosion was investigated by Colorado government officials and
by the Plaintiffs’ homeowner’s insurer; Plaintiffs identified 22
Colorado percipient witnesses; and Mrs. Draper received post-
incident medical care from at least 36 medical care providers in
Colorado.
In opposition, the Drapers argued, inter alia: the movants
failed to overcome the strong presumption in favor of preserving
Plaintiffs’ choice of forum in Defendants’ home state and failed to
show that California is a seriously inconvenient forum; Peterson
had failed to plead forum non conveniens as an affirmative
defense in its answer; Defendants took advantage of the
California forum for nearly two years, taking voluminous
discovery unrelated to their motions to dismiss; Defendants had
failed to show they were subject to personal jurisdiction in
Colorado; and Defendants had failed to show they would waive
the Colorado statute of limitations.
3
On August 26, 2019, the matter came on for hearing. On
September 5, 2019 and September 23, 2019, respectively, the
trial court granted Peterson’s and Dexen’s motions to dismiss the
action for forum non conveniens. The trial court rejected
Plaintiffs’ arguments that Peterson had waived its right to assert
forum non conveniens by failing to plead it as an affirmative
defense. It also rejected Plaintiffs’ argument that Defendants’
extensive discovery unrelated to the motion to dismiss precluded
Defendants from contending that California is an inconvenient
forum. It found that Colorado is a suitable alternative forum
because Colorado has jurisdiction over both Peterson and Dexen,
and both had agreed to waive any statute of limitations defense
so as to enable Plaintiffs to refile their action in Colorado.
Further, the private interests weighed in favor of litigating this
case in Colorado because, among things, Mrs. Draper had
identified 22 Colorado percipient witnesses as well as 36 post-
incident treating medical care providers in Colorado. The public
interest also weighed in favor of the Colorado forum because trial
would realistically take 21 to 30 days and would be a significant
burden on jurors in Pomona, in a case that is unrelated to their
community.
On October 31, 2019, Plaintiffs filed a motion seeking to
vacate the orders of September 5 and September 23, 2019 and
requesting a new trial pursuant to section 657, as well as an
order under section 473 setting aside as void the orders that
granted Defendants’ dismissal motions. On January 7, 2020, the
trial court denied said motions.
On January 16, 2020, the trial court signed and filed an
order dismissing the action (§ 581d) pursuant to the grant of
Defendants’ motions to dismiss for forum non conveniens. The
4
order, at Part 3, conditioned the dismissal on Defendants’
compliance with the four following conditions, which we
summarize as follows: (A) Peterson and Dexen shall not raise the
statute of limitations in Colorado; (B) Defendants shall make
their current employees available for deposition in Colorado, and
shall present their current employees to be witnesses in person at
the Colorado trial, at Defendants’ expense; (C) Defendants shall
not destroy any documents, and shall, to the extent possible,
recreate any destroyed documents and serve them on Plaintiffs
within 45 days; and (D) subject to any rulings by the Colorado
court relating to admissibility of proposed evidence, the parties
shall be entitled to use in the Colorado case any discovery taken
in the California case. The order further provided that if the
parties violate Conditions 3A, 3B, or 3D, Plaintiffs were entitled
to return to the trial court to request an order reopening the
California case and restoring the matter to the active calendar.
On January 30, 2020, Plaintiffs filed a timely notice of
appeal from the January 16, 2020 order of dismissal.3
During the pendency of the appeal, on July 13, 2020,
Plaintiffs filed a motion in the trial court to vacate the January
3 We note that earlier, on September 23, 2019, the trial court
signed and filed an order of dismissal as to Peterson only.
However, the January 16, 2020 order of dismissal stated that it
constitutes the signed order of dismissal required under section
581d. We agree with Defendants that the operative order is the
January 16, 2020 order of dismissal that imposed conditions on
the dismissed Defendants. We construe the January 16, 2020
order as granting in part Plaintiffs’ motion to vacate the
September 23, 2019 order that unconditionally dismissed the
action as to Peterson, and correct the January 16, 2020 order
insofar as it states that Plaintiffs’ motion to vacate the
September 23, 2019 order was denied.
5
16, 2020 order of dismissal, contending that Defendants had
violated Condition 3C of the dismissal order, and had concealed
the fact that Hwei Keh Enterprise Co., Ltd. (HKE), the
manufacturer of the timer, was independent of Dexen.
Defendants asserted that the trial court lacked jurisdiction to
hear the motion due to the pendency of the appeal. On
September 10, 2020, Plaintiffs withdrew their motion and it was
taken off calendar.
CONTENTIONS
The Drapers contend: (1) Peterson waived the forum non
conveniens defense by not pleading it in the answer; (2) the trial
court erred in dismissing the action based on section 413.10, a
statute upon which neither defendant relied; (3) both defendants
waived forum non conveniens by taking unrelated California
discovery far exceeding that available in Colorado, to Plaintiffs’
incurable unfair prejudice; (4) Colorado is not a suitable forum;
(5) the trial court applied the wrong standard, Defendants failed
to meet their burden of proof, and the private and public interest
factors don’t support dismissal here; (6) the trial court erred in
denying Plaintiffs’ motion for new trial; and (7) the dismissal
rendered the court’s conditions for dismissal unenforceable and
deprived the court of jurisdiction to revise its position, even for
Defendants’ misrepresentations.4
4 During the pendency of the appeal, this court deferred
rulings on the following four requests for judicial notice (RJN):
Dexen’s RJN filed July 17, 2020; Plaintiffs’ RJN filed December
28, 2020; Defendants’ joint RJN filed May 13, 2021; and
Plaintiffs’ reply RJN filed August 10, 2021. Bearing in mind that
taking judicial notice of a document is not the same as accepting
the truth of its contents (Herrera v. Deutsche Bank National
6
DISCUSSION
1. General principles relating to a motion to dismiss or stay
an action based on the forum non conveniens doctrine.
Defendants’ motions that led to the trial court’s dismissal
were motions to stay or dismiss Plaintiffs’ action on the ground of
forum non conveniens. (§ 410.30, subd. (a).)5 Such motions are
subject to the two-part analysis set forth in Stangvik v. Shiley
Inc. (1991) 54 Cal.3d 744 (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. 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
Trust Co. (2011) 196 Cal.App.4th 1366, 1375), the pending RJNs
are hereby granted.
5 Section 410.30 states in relevant part at subdivision (a)
that “[w]hen 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.”
7
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, 54 Cal.3d at p. 751.)
The ultimate question is whether the balancing of the
Stangvik factors shows that California is an inconvenient forum.
(Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1464
(Morris).) The defendant, as the moving party, bears the burden
of proof. (Stangvik, supra, 54 Cal.3d at p. 751.)
“The trial court’s first determination, whether there is a
suitable alternative forum, is a nondiscretionary legal question
subject to de novo review. [Citations.] The second determination,
the weighing of private and public factors, is discretionary and
subject to review only for an abuse of discretion—and we must
accord substantial deference to the trial court’s balancing of the
factors. [Citations.]” (Morris, supra, 144 Cal.App.4th at p. 1464.)
2. No merit to Plaintiffs’ contention that Peterson waived
the forum non conveniens doctrine.
Plaintiffs contend that one of the Defendants, Peterson,
waived the forum non conveniens doctrine by failing to plead it as
an affirmative defense in its answer. (§ 431.30, subd. (b)(2)
[answer shall contain a statement of any new matter constituting
a defense].) We conclude the trial court properly rejected this
argument.
Any issue “ ‘on which defendant bears the burden of proof
at trial is “new matter” and must be specially pleaded in the
answer.’ ” (Mountain Air Enterprises, LLC v. Sundowner Towers,
LLC (2017) 3 Cal.5th 744, 756.) A motion to dismiss based on
forum non conveniens does not fall within the scope of new
8
matter because it is not an affirmative defense that must be
proven at trial.
Moreover, a defendant “who has generally appeared may
make a forum non conveniens motion at any time, not only on or
before the last day to plead.” (Britton v. Dallas Airmotive, Inc.
(2007) 153 Cal.App.4th 127, 133 (Britton).) This is “a reasonable
rule because it may be necessary to conduct discovery to develop
the factual underpinnings of a forum non conveniens motion.
[Citation.] Further, to retain a case for the entire duration of the
litigation because the lack of connection to California was unclear
at the outset would impair the state’s interest in avoiding
burdening courts and potential jurors with litigation in which the
local community has little concern.” (Id. at p. 135; see generally,
California Judges Benchbook: Civil Proceedings-Before Trial
(2021) § 9.76.)
In sum, there is no merit to Plaintiffs’ contention that
Peterson waived the forum non conveniens doctrine by not
pleading it in the answer.
3. No merit to Plaintiffs’ contention that the trial court
erred in dismissing the action pursuant to section 410.30 because
Defendants failed to specify that statute in their notices of motion.
By way of background, the provisions of sections 418.10
and 410.30 both relate to forum non conveniens motions.
(Britton, supra, 153 Cal.App.4th at p. 134.) They provide “that
where a defendant has not appeared, section 418.10 applies and
specifies the procedure for bringing a forum non conveniens
motion.[6] Section 410.30 applies after a defendant has
6 Section 418.10 states in relevant part at subdivision (a): “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,
9
appeared.[7]” (Britton, at p. 134.) Here, although each defendant
had already appeared, their notices of motion to dismiss for
forum non conveniens specified section 418.10, rather than
section 410.30.
Plaintiffs contend on appeal that the trial court erred in
dismissing the action pursuant to section 410.30 because
California law requires moving parties to give opposing parties
written notice of the grounds upon which their motion relies (§
1005, subd. (a); § 1010; rules 3.1110(a) & 3.1112(a)(1)), and courts
generally consider only the grounds stated in the notice of
motion. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)
Plaintiffs agree with Defendants that the pertinent statute is
section 410.30 since Defendants had already appeared, but
because neither defendant’s notice of motion specified section
410.30, the trial court erred in granting the motions for forum
non conveniens pursuant to a statute that was not specified in
the notices of motion. The argument is meritless.
An omission in a notice of motion “may be overlooked if the
supporting papers make clear the grounds for the relief sought.
[Citations.] The purpose of these requirements is to cause the
moving party to ‘sufficiently define the issues for the information
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.”
7 Section 410.30 states in full: “(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.”
10
and attention of the adverse party and the court.’ [Citation.]”
(Luri, supra, 107 Cal.App.4th at p. 1125.)
It is true that both notices of motion specified section
418.10, rather than 410.30. However, it was clear from the
moving papers that Defendants were seeking to dismiss the
action for forum non conveniens, and Plaintiffs do not assert that
they were somehow prejudiced or misled by the movants’
specification of 418.10 instead of section 410.30 in their notices of
motion. Notably, in their opposition papers below, Plaintiffs did
not argue that section 418.10 did not authorize the court to grant
Defendants’ motions for forum non conveniens. In Plaintiffs’
March 4, 2019 opposition to Dexen’s motion to dismiss, and in
their August 14, 2019 opposition to Peterson’s motion to dismiss,
they simply responded to the merits of the inconvenient forum
issue and contended that their choice of a California forum
should be upheld.
Thus, notwithstanding the fact that Defendants’ notices of
motion specified section 418.10 rather than section 410.30, the
record establishes that Plaintiffs understood that Defendants
were moving to dismiss their action for forum non conveniens,
Plaintiffs opposed the motions on that basis, and the issues were
fully litigated. Therefore, we reject Plaintiffs’ contention that the
order must be reversed simply because the notices of motion did
not specify section 410.30.
11
4. No merit to Plaintiffs’ contention that Defendants waived
the forum non conveniens doctrine by taking discovery in
California.
Plaintiffs contend both Defendants waived forum non
conveniens by taking California discovery unrelated to the
inconvenient forum issue, far exceeding that available in
Colorado, to Plaintiffs’ prejudice.
a. Trial court’s ruling.
Plaintiffs raised this issue in the court below, urging the
court to deny the forum non conveniens motions on the ground
that Defendants had already taken voluminous discovery
unrelated to the motion to dismiss. The trial court rejected this
argument, stating “Plaintiffs here, however, have not provided
the court with any evidence in support of their assertion that the
discovery conducted by [Peterson], to date, ‘far exceeds the
discovery that would have been allowed in Colorado.’ . . . .
Plaintiffs, moreover, have not articulated any prejudice caused by
any such discovery, particularly since both [Defendants] are
agreeable that all written discovery, deposition testimony,
pleadings and records in this action may be used in the Colorado
action.”
b. Pertinent case law.
The trial court’s decision was guided by Martinez v. Ford
Motor Co. (2010) 185 Cal.App.4th 9 (Martinez). There, the
plaintiffs sued Ford Motor Company (Ford) and Cooper Tire and
Rubber Company (Cooper Tire) in San Diego Superior Court
following a fatal rollover accident that occurred in Mexico; the
vehicle had been purchased in San Diego County. The complaint
alleged that the tread on the vehicle’s defectively designed and
manufactured right rear tire separated from the wheel, causing
12
the driver to lose control of the Explorer. (Id. at pp. 11-12.)
Cooper Tire and Ford answered the complaint and Cooper Tire
subsequently successfully petitioned to transfer the complaint to
Los Angeles to be included in a coordinated proceeding known as
the Winston Tire Cases, in which both Ford and Cooper Tire were
defendants. (Id. at pp. 12-13.) Ford and Cooper Tire propounded
more than 1,400 pages of written discovery on the plaintiffs and
the plaintiffs’ responses spanned more than 650 pages. (Id. at p.
16.) Ford then filed a motion to dismiss for dismiss for forum non
conveniens, in which Cooper Tire joined. (Id. at pp. 16-17.) The
motion contended that the ties of the lawsuit to Mexico
predominated over any ties to California, making Mexico the
appropriate forum for trying the case. In opposition, the
plaintiffs argued that the defendants had delayed their motion to
dismiss in order to take advantage of discovery mechanisms in
California that do not exist in Mexico. (Id. at p. 17.) The trial
court granted the motion and entered an order of dismissal after
concluding California was a “ ‘seriously inconvenient forum’ ” in
which to try appellants’ lawsuit. (Id. at p. 17.)
The reviewing court reversed, stating “A party abuses the
discovery process when it takes advantage of California’s laws
and legal processes to propound discovery beyond the scope of
establishing the grounds for a forum non conveniens motion and
then, after getting its discovery, asserts California is an
inconvenient forum. [Citation.]” (Martinez, supra, 185
Cal.App.4th at p. 18.) Mexico, which was “the forum the trial
court deemed more suitable than California in which to try [the]
lawsuit, does not allow the type or scope of discovery that
California permitted [the defendants] to propound here. Mexico
does not allow written discovery akin to interrogatories and
13
provides for only limited requests for production of documents.
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.
[¶] . . . (See, e.g., Groom v. Health Net (2000) 82 Cal.App.4th
1189, 1196 [prejudice when party uses discovery not available in
arbitration to discover plaintiffs’ strategy and evidence before
moving to compel arbitration].)” (Martinez, supra, 185
Cal.App.4th at pp. 18-19.) Martinez concluded that the
defendants “used a California court for discovery they could not
have obtained in Mexico to get evidence unrelated to their forum
non conveniens motion. Having availed themselves of the
advantages of California courts to the prejudice of [the plaintiffs],
[the defendants] cannot now be heard to say our state’s courts are
inconvenient.” (Id. at p. 21.)
c. Trial court properly rejected Plaintiffs’ contention
that Defendants had waived forum non conveniens by
propounding discovery in California unrelated to the inconvenient
forum issue.
In ruling against Plaintiffs on this issue, the trial court
stated that “Plaintiffs . . . have not provided the court with any
evidence in support of their assertion that the discovery
conducted by [Peterson], to date, ‘far exceeds the discovery that
would have been allowed in Colorado.’ ” (Italics added.)
Plaintiffs have not met their burden to show the trial court
erred in this regard. In their appellants’ opening brief, they
merely cite portions of the declarations that their attorneys filed
in the court below, but the cited pages do not specify in what
14
respect civil discovery in Colorado is more limited than the
discovery available in California.
In addition to citing the declarations of counsel, the
appellants’ opening brief cites to the reporter’s transcript of the
hearing on the forum non conveniens motions to assert that,
unlike California, Colorado does not allow defendants to learn
about medical insurance, medical benefits and payments, or
preexisting conditions. Leaving aside the propriety of raising
new matter at the hearing, the argument of counsel does not
constitute evidence. (Beagle v. Vasold (1966) 65 Cal.2d 168, 176.)
Plaintiffs could have asked the trial court to take judicial
notice of Colorado law to support their assertion that the
discovery that Defendants conducted in California exceeded what
would have been allowed in Colorado; judicial notice may be
taken of the law of another state (In re Marriage of Pendleton and
Fireman (2000) 24 Cal.4th 39, 47, fn. 6; Evid. Code § 452, subd.
(a)), with the burden “on the party seeking judicial notice to
provide sufficient information to allow the court to take judicial
notice.” (Ross v. Creel Printing & Publishing Co. (2002) 100
Cal.App.4th 736, 744.)
Plaintiffs failed to make a record in this regard. They
failed to supply the trial court with evidence as to the alleged
limitations that Colorado imposes on civil discovery. Therefore,
on the record presented, the trial court properly found that
Plaintiffs had not provided the court with any evidence to support
their assertion that the discovery that Defendants obtained in
California far exceeded the discovery that would have been
allowed in Colorado.
15
Accordingly, there is no merit to Plaintiffs’ contention that
Defendants waived forum non conveniens by obtaining discovery
in California “far exceeding that available in Colorado.”
We now turn to the merits of the forum non conveniens
question.
5. Trial court properly determined that Colorado is a
suitable alternative forum.
a. General principles.
As indicated, the trial court’s initial determination in the
forum non conveniens analysis, i.e., “whether there is a suitable
alternative forum, is a nondiscretionary legal question subject to
de novo review.” (Morris, supra, 144 Cal.App.4th at p. 1464.)
The availability “ ‘of a suitable alternative forum for the action is
critical.’ [Citation.] A forum is suitable if there is jurisdiction
and no statute of limitations bar to the action. It is sufficient that
the action can be brought, although not necessarily won, in the
suitable alternative forum. [Citations.]” (Ibid., italics added.)
In Morris, the trial court found that Texas was a suitable
alternative forum, and the reviewing court agreed, stating: “ ‘All
defendants have agreed to consent to jurisdiction in Texas and
state that they will not assert the statute of limitations as a
defense in Texas. Therefore, there is no bar to proceeding in
Texas.’ The trial court correctly relied on the Judicial Council
comment to Code of Civil Procedure section 410.30, quoted in
Stangvik, supra, 54 Cal.3d at page 752, which states that a forum
is suitable if there is jurisdiction and a defense stipulation not to
raise the defense of the statute of limitations in the alternative
forum.” (Morris, supra, 144 Cal.App.4th at p. 1464.)
16
b. Trial court’s ruling that Colorado is a suitable
alternative forum.
The trial court ruled that Colorado has jurisdiction over
both the named defendants in this case, Peterson and Dexen,
under Colorado’s long-arm statute. Further, Plaintiffs did not
dispute that Colorado courts have jurisdiction over said
defendants. Moreover, even if Colorado did not have jurisdiction
over Peterson and Dexen, they both had agreed to submit to
Colorado jurisdiction with respect to Plaintiffs’ claims, and both
also had agreed to waive any statute of limitations defense
related to the timeliness of Plaintiffs’ filing of their complaint so
that Plaintiffs could refile in Colorado.
The trial court noted, “Plaintiffs complain that Colorado is
not a suitable forum because Plaintiffs cannot be heard on the
merits against any new defendants in a new Colorado action,
whereas Plaintiffs would be able to take advantage of the
doctrine of relation back in California. Plaintiffs, however, have
not identified any additional individual or entity whom they
believe should be added as a defendant. The fact remains that all
existing defendants have agreed to waive any statute of
limitations defense. The court is not concerned with
hypothetical, unnamed defendants. The court determines that
Colorado is a suitable alternate forum.”
c. Trial court properly ruled that Colorado is a
suitable alternative forum.
On our de novo review, we agree with the trial court’s
determination that Colorado is a suitable alternative forum.
Both Dexen and Peterson submitted declarations stating they
agreed to submit to the jurisdiction of Colorado, and to waive the
statute of limitations defense for the purpose of allowing the
17
Drapers to refile their lawsuit in Colorado.8 Given these
circumstances, the trial court properly found that Colorado is a
suitable alternative forum. (Morris, supra, 144 Cal.App.4th at p.
1464 [a forum is suitable if there is jurisdiction and no statute of
limitations bar to the action].)
Plaintiffs nonetheless contend the trial court’s ruling in
this regard was erroneous. We are not persuaded.
Lack of Colorado jurisdiction over HKE. Plaintiffs contend
that Colorado is not a suitable forum because it may lack
jurisdiction over HKE, a Taiwanese entity that is independent of
Dexen, and that manufactured the timer that failed to shut off
the grill’s gas. In support, Plaintiffs cite the papers they filed on
July 13, 2020 in connection with their motion to vacate the
January 16, 2020 order of dismissal. This argument with respect
to a lack of Colorado jurisdiction over HKE, which was not
presented to the trial court until six months after the action was
dismissed, cannot be considered on the instant appeal from the
January 16, 2020 order of dismissal.
Jurisdiction over five potential new defendants. Plaintiffs
contend that Defendants’ motions identified five potential new
defendants, and that Defendants had argued without any basis
that California lacked jurisdiction over each: the propane
supplier, Amerigas; the grill retailer, The Fireplace Company;
plumber Mark Furlong (Furlong) and his company, Furlong
Plumbing & Heating (Furlong Plumbing); and Mr. Draper’s
8 Consistent therewith, in the complaint that the Drapers
filed in Colorado two weeks after the trial court granted the
motion to dismiss for forum non conveniens, the Drapers pled:
“Both Peterson and Dexen have agreed to submit to the
Jurisdiction of this Court, and both have waived any statute of
limitation defenses.”
18
defunct construction company, George Draper Construction, Inc.
(GDC). However, irrespective of whether these defendants could
be sued in California, the evidence showed that these five
potential new defendants were all residents of Colorado whose
actions occurred in Colorado. Because the potential new
defendants were subject to jurisdiction in Colorado, we reject
Plaintiffs’ argument that Colorado was not a suitable forum due
to the potential inclusion of these new defendants.
Statute of limitations as to potential new defendants.
Plaintiffs contend that Defendants’ waiver of the statute of
limitations was insufficient because there was no waiver of the
statute of limitations by the potential new defendants. The trial
court rejected this argument, stating: “The fact remains that all
existing defendants have agreed to waive any statute of
limitations defense. The court is not concerned with
hypothetical, unnamed defendants.” We agree. The trial court
properly refused to deny Defendants’ motions based on Plaintiffs’
claimed inability to sue parties that they had yet to add to the
litigation.9
In sum, the trial court properly determined that Colorado is
a suitable alternative forum.
9 The record reflects that in the new action that Plaintiffs
filed in Colorado, following the dismissal of the instant action,
they named as defendants The Fireplace Company, Furlong and
Furlong Plumbing, and that Plaintiffs entered into settlements
with Furlong and Furlong Plumbing, as well as with Amerigas.
Thus, Plaintiffs pursued claims against four of the five “potential”
new defendants in Colorado; as for the fifth potential defendant,
GDC, Mr. Draper’s construction company, the Drapers
apparently did not desire to sue themselves.
19
We now turn to the second step of the forum non
conveniens analysis.
6. Plaintiffs fail to show that the trial court abused its
discretion in weighing the private interests of the litigants and the
interests of the public in determining that California is an
inconvenient forum.
a. No merit to Plaintiffs’ contention that the trial
court applied the wrong standard.
Plaintiffs contend the trial court applied the wrong
standard in ruling on Defendants’ motions to dismiss for forum
non conveniens. Plaintiffs assert a plaintiff’s choice of forum
should prevail unless a defendant’s evidence unequivocally shows
that equity weighs strongly in favor of the alternative forum, and
that Defendants had the burden to prove that California is a
“seriously inconvenient forum.” The argument is without merit.
Plaintiffs are residents of Colorado, not California.
Therefore, there is no strong presumption in favor of their choice
of forum in this state. “California does not recognize a strong
presumption in favor of a nonresident plaintiff’s choice of forum.”
(National Football League v. Fireman’s Fund Ins. Co. (2013) 216
Cal.App.4th 902, 924 (NFL).)
Likewise, the “seriously inconvenient” standard does not
apply here. The “seriously inconvenient” standard appears in the
comment generated by the Judicial Council when section 410.30
was enacted. (NFL, supra, 216 Cal.App.4th at p. 932.) NFL
“conclude[d] that the phraseology ‘seriously inconvenient’ as used
in the Judicial Council Comment was intended to describe the
quantum of evidence needed to justify a dismissal in the face of
the strong presumption favoring a resident plaintiff’s choice to
sue in its home-state court system.” (NFL, at p. 932; accord, Fox
20
Factory, Inc. v. Superior Court (2017) 11 Cal.App.5th 197, 206-
207.) Here, because Plaintiffs are nonresidents of California,
Defendants were not required to establish that California is a
“seriously inconvenient” forum.
Accordingly, we reject Plaintiffs’ contention that the trial
court applied the wrong standard in ruling on the motions.
b. No merit to Plaintiffs’ contention that Defendants
failed to meet their burden of proof.
Plaintiffs argue in conclusory fashion that Defendants
“failed their burden of proof.” By this argument, Plaintiff are
inviting us to reweigh the evidence. This is an invitation we
must decline. (Bookout v. State of California ex rel. Dept. of
Transportation (2010) 186 Cal.App.4th 1478, 1486.)
Our review under the abuse of discretion standard is
deferential. Thus, the test “ ‘is not whether we would have made
a different decision had the matter been submitted to us in the
first instance. Rather, the discretion is that of the trial court,
and we will only interfere with its ruling if we find that under all
the evidence, viewed most favorably in support of the trial court's
action, no judge reasonably could have reached the challenged
result. [Citations.]’ ” (Estate of Hammer (1993) 19 Cal.App.4th
1621, 1634.) As discussed below, Plaintiffs have failed to meet
their burden on appeal to show that that the trial court’s decision
was so irrational or arbitrary that no reasonable judge would
have reached it.
21
c. Trial court acted within its discretion in finding
that the private interests weighed in favor of litigating this case in
Colorado.
(1) Trial court’s ruling.
The trial court ruled as follows: “Here, the private interest
factors weigh in favor of litigating this case in Colorado. This
matter arises out of an alleged incident occurring in Snowmass,
Colorado. Plaintiffs are, and at the time of the incident were,
residents of Snowmass, Colorado. Plaintiff [Mrs. Draper] has
identified 22 Colorado percipient witnesses and/or persons with
knowledge of the incident in her response to [Peterson’s] form
interrogatories. Plaintiffs also identified 36 post-incident
treating medical care providers. [Peterson’s] counsel Jason
Hunter represents that a significant amount of discovery still
needs to be completed, including the Colorado Bureau of
Investigation officer, the Fireplace Company owner, Amerigas
employees and investigators, emergency medical care responders,
percipient witnesses identified in [Mrs. Draper’s] form
interrogatory responses, and [her] post-incident medical care
providers. Also, a witness cannot be compelled to attend trial
unless he or she is a resident of California at the time of service.
(CCP § 1989.)
“[Peterson] represents that it believes Plaintiff [Mr.
Draper], George Draper Construction, Mark Furlong/Furlong
Plumbing & Heating, The Fireplace Company, and/or AmeriGas
could have caused or contributed to the incident and that keeping
this case in California will essentially prevent [Peterson] from
filing a cross-complaint against them. ‘If defendant has a cross-
complaint against third parties who are suable only in the foreign
forum, “substantial justice” to defendant may require stay or
22
dismissal of the California action (to avoid multiplicity of suits
and possibly inconsistent judgments).’ (Weil & Brown, et al., Cal.
Prac. Guide: Civ. Pro. Before Trial (The Rutter Group [(2021)]) [¶
3:433].) However, ‘it is inappropriate to shift the forum based
upon the fact that respondent may join others when it has not
taken any steps to do so.’ [Citation.] Regardless, the court
determines that the other considerations, articulated above,
weigh in favor of litigating this case in Colorado.” (Italics
omitted.)
(2) Plaintiffs fail to show on appeal that the trial
court abused its discretion in weighing the private interest factors
in Defendants’ favor.
As indicated, the trial court based its decision, inter alia, on
the fact that Plaintiffs are Colorado residents, as are 22
percipient witnesses and 36 post-incident treating health care
providers.10 Plaintiffs disagree with the trial court’s decision but
they have not briefed this issue in light of the applicable abuse of
discretion standard of appellate review. Instead, Plaintiffs
simply argue on appeal that the private interest factors do not
support dismissal of their California lawsuit, and that their
choice of the California forum should have been upheld. For
example, they assert that “trial in [Defendants’] home state
[would be] relatively expeditious and inexpensive to
[Defendants], with easy access to proof from [Defendants’]
facilities and employees, the cost to obtain witness attendance is
10 We note the declaration of Attorney Jason Hunter, cited by
the trial court, shows that of Mrs. Draper’s 36 post-incident
treating health care providers, 34 are located in Colorado, and
two are located elsewhere (not in California). This slight
discrepancy does not affect our analysis.
23
less, and any judgment against [Defendants] is most easily
enforced here.”
In making these arguments, Plaintiffs in effect are
rearguing the showing they made in their opposition papers
below and expressing their disagreement with the trial court’s
decision. However, a decision will not be reversed for an abuse of
discretion merely because reasonable people might disagree with
it. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
To establish an abuse of discretion, Plaintiffs were required
to show that the trial court’s decision fell outside the permissible
range of options set by the legal criteria (Orange Catholic
Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292-293), or that
the trial court’s decision with respect to the weighing of the
private factors was “so irrational or arbitrary that no reasonable
person could agree with it.” (Olive v. General Nutrition Centers,
Inc. (2018) 30 Cal.App.5th 804, 827.) Instead, Plaintiffs merely
argue to this court that the trial court, in analyzing the private
interest factors, should have reached a different conclusion.
Accordingly, Plaintiffs did not begin to meet their burden to show
an abuse of discretion in this regard.
d. No showing the trial court abused its discretion in
finding that the public interest factors weighed in favor of
litigating this case in Colorado.
(1) Trial court’s ruling.
On this issue, the trial court stated: “The public interest
factors, moreover, weigh in favor of litigating this case in
Colorado. Plaintiffs cannot dispute that having the action heard
in California would burden the California court system.
[Peterson] represents the action will realistically take between
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21-30 days to be heard,[11] which will impose a significant burden
on potential jurors in Pomona to hear a case involving matters
that are unrelated to their community. By way of contrast,
Colorado has a significant interest in adjudicating this action, as
the incident occurred in Colorado and caused injuries to Colorado
residents.”
(2) No showing of an abuse of discretion in the trial
court’s weighing of the public interest factors.
Plaintiffs contend the public interest factors do not support
dismissal here because the trial court articulated only one public
interest factor to justify dismissal—the burden on the California
court system that would be imposed by a trial that would
consume 21 to 30 days. However, “preventing court congestion
resulting from the trial of foreign causes of action is an important
factor in the forum non conveniens analysis.” (Stangvik, supra,
54 Cal.3d at p. 758.)
Thus, for example, Hansen v. Owens-Corning Fiberglas
Corp. (1996) 51 Cal.Appp.4th 753, in finding that the public
interests weighed in favor of the alternative forum, Montana,
stated: “California courts are already overburdened with
asbestos litigation and have little or no interest in litigation
involving injuries incurred outside of California by nonresidents.
It seems unduly burdensome for California residents to be
expected to serve as jurors on a case having so little to do with
California. The competing interests of California and Montana
11 Peterson’s motion stated: “Considering Plaintiffs’ injuries
and the amount of anticipated percipient witnesses and experts
for Plaintiffs and the defense, this case will realistically take
between 21-30 days (perhaps longer) to be heard.”
25
strongly weigh in favor of litigating this matter in Montana.” (Id.
at p. 760.)
Accordingly, the trial court did not abuse its discretion in
concluding the public interest weighs in favor of the Colorado
forum.
7. Other issues.
a. Denial of motion for new trial.
The trial court denied Plaintiffs’ motion for new trial
without prejudice. It ruled the motion for new trial following the
grant of the motions to dismiss for forum non conveniens was
premature because the court had not yet signed and filed its
findings and conclusions. It further ruled that even if it were to
consider the merits of the motion for new trial, there was no basis
on which to grant a new trial. Plaintiffs contend on appeal that
the trial court erred in denying their motion for new trial.
As a preliminary matter, for purposes of this discussion, we
conclude, as did the trial court, that a motion for new trial may
be brought following the grant of a motion to dismiss for forum
non conveniens. (See Cal. Judges Benchbook Civ. Proc.—After
Trial (2021) § 2.3 [although a new trial motion is most commonly
made following a trial, it may also be made following any
proceeding that resulted in a judgment that resolved the case
without a trial].)
Although Plaintiffs contend the trial court erred in denying
their motion for new trial, their appellate briefs fail to discuss
any of the statutory grounds on which a new trial may be granted
under section 657, let alone brief the claim of error in light of the
applicable standards of appellate review. Because the briefs lack
a legal argument with citation of authorities, we treat the
contention regarding the denial of the motion for new trial as
26
waived or abandoned. (Ellenberger v. Espinosa (1994) 30
Cal.App.4th 943, 948.)
b. The trial court’s decision to dismiss rather than
stay the action.
As indicated, the January 16, 2020 order dismissing the
action for forum non conveniens, at Part 3, imposed the following
conditions: (A) Peterson and Dexen shall not raise the statute of
limitations in Colorado; (B) Defendants shall make their current
employees available for deposition in Colorado, and shall present
their current employees to be witnesses in person at the Colorado
trial, at Defendants’ expense; (C) Defendants shall not destroy
any documents, and shall, to the extent possible, recreate any
destroyed documents and serve them on Plaintiffs within 45
days; and (D) subject to any rulings by the Colorado court
relating to admissibility of proposed evidence, the parties shall be
entitled to use in the Colorado case any discovery taken in the
California case. The order further provided that if the parties
violate Conditions 3A, 3B, or 3D, Plaintiffs were entitled to
return to the trial court to request an order reopening the
California case and restoring the matter to the active calendar.
Plaintiffs contend the trial court’s decision to dismiss
rather than to stay the action was an abuse of discretion because
it deprived Plaintiffs of a remedy in the event that Defendants
breached the conditions of the dismissal order.
The argument is meritless because section 410.30
specifically authorizes the trial court to “dismiss the action in
whole or in part on any conditions that may be just.” (Id. at subd.
(a).)
Further, Plaintiffs are not without a remedy in the event of
a breach of the conditions by Defendants. As noted, the order of
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dismissal specifically authorizes Plaintiffs to file a motion to
reopen the California case in the event of a breach of Conditions
3A, 3B, or 3D, while deferring to the Colorado court to enforce
Condition 3C. Therefore, we reject Plaintiffs’ contention that the
dismissal of the action rendered the conditions of dismissal
unenforceable.
c. Defendants’ alleged violation of Condition 3C.
As noted, Condition 3C in the January 16, 2020 order of
dismissal required Defendants, “to the extent possible,” to
recreate any destroyed documents and serve them on Plaintiffs
within 45 days. On February 28, 2020, Peterson’s counsel sent a
letter to Plaintiffs’ counsel, stating that “despite diligent inquiry .
. . [Peterson] is unable to determine which documents may have
otherwise been discarded in the past in the ordinary course of
business, nor is [Peterson] able to recreate any document which
may have been discarded in the ordinary course of business in
order to submit them to the parties in accordance with the
California Court’s order.” Similarly, on March 1, 2020, Dexen’s
counsel wrote that “Dexen has determined that it is not possible
to recreate any documents that may have been destroyed or
discarded in the normal course of Dexen’s business.”
Plaintiffs contend that Defendants disobeyed Condition 3C
in the order of dismissal because they made no effort to recreate
and serve destroyed documents within 45 days.
This argument, which Plaintiffs raised in their July 13,
2020 motion to vacate the January 16, 2020 order of dismissal, is
not cognizable on the instant appeal from the January 16, 2020
order of dismissal, and therefore requires no discussion.
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d. Alleged lack of Colorado jurisdiction over HKE.
Plaintiffs contend the order of dismissal should be reversed
because Defendants concealed evidence that HKE is a separate
entity that is independent of Dexen, and thus, Defendants
prevented Plaintiffs from naming HKE as a defendant in
California, and from raising a lack of Colorado jurisdiction over
HKE to show that Colorado is not a suitable forum.
This argument, just like the previous argument relating to
the alleged breach of the conditions of dismissal, is not properly
before us. This argument was raised after the dismissal, in
Plaintiffs’ July 13, 2020 motion to vacate the January 16, 2020
order of dismissal, and thus is not cognizable on the appeal from
the order of dismissal.
e. New issues raised in the Plaintiffs’ reply brief on
appeal.
Points raised for the first time in a reply brief on appeal
will not be considered, absent good cause for failure to present
them earlier. (Nordstrom Com. Cases (2010) 186 Cal.App.4th
576, 583.) Thus, insofar as the appellants’ reply brief asserts the
trial court erred in its January 7, 2020 order in refusing to vacate
its prior orders, the issue is not properly before us. The
appellants’ reply brief also contends the trial court erred in
denying their motion for relief under section 473. This
contention, which was not mentioned in the appellants’ opening
brief and lacks a supporting legal argument, requires no
discussion.
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DISPOSITION
The January 16, 2020 order of dismissal is affirmed.
Defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED
WINDHAM, J.*
We concur:
LAVIN, Acting P.J.
EGERTON, J.
______________________________________________________
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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