Pontikis v. Atieva CA1/2 ( 2022 )

Filed 12/28/22 Pontikis v. Atieva CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
STEPHANOS PONTIKIS,
Plaintiff and Appellant,
A164444
v.
ATIEVA, INC. et al., (Alameda County
Super. Ct. No. RG21102685)
Defendants and Respondents.
This case concerns whether California is an appropriate forum for
Stephanos Pontikis’s lawsuit against his former employer and various
affiliated entities (collectively Atieva). The Alameda County Superior Court
stayed proceedings in this matter on the ground of forum non conveniens to
permit Pontikis to pursue his claims in Arizona, where the underlying events
occurred. On appeal, Pontikis contends that he is barred from bringing his
suit in Arizona under the applicable statute of limitations and that he should
therefore be permitted to proceed with his claims in California because
Arizona is not a “suitable forum” as a matter of law. We agree with the trial
court that California is not a convenient forum for this proceeding, provided
Arizona is available as an alternative forum, but we reverse the order in light
of the uncertainty at present as to whether Arizona remains available. We
remand with directions to the trial court to condition any further stay of
proceedings on Atieva’s waiver of any Arizona statute of limitations defense.
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FACTUAL AND PROCEDURAL BACKGROUND
Only a brief factual summary is needed to provide the context for this
appeal. Pontikis began working for Lucid, a subsidiary of Atieva, on January
4, 2021. During the period of Pontikis’s employment, Lucid was a Delaware
corporation that manufactures electric vehicles, with its company
headquarters in Newark, California. Lucid has a production factory in
Arizona, and that is the location where Pontikis worked. Pontikis, a resident
of Texas at the time, relocated to Arizona for the new position with Lucid.
Although Lucid has California offices, Pontikis’s employment was exclusively
in the Arizona office.
The dispute that precipitated Pontikis’s imminent separation from his
employer began when Pontikis told his immediate supervisor, David Tasker,
that he had tested positive for COVID-19. According to Pontikis, Tasker told
him to falsely tell human resources that he did not have contact with other
employees, and Pontikis raised concerns about Tasker’s directive through his
chain of command. Pontikis was upset by these circumstances, and allegedly
endured a hostile work environment for the rest of his tenure. Pontikis,
allegedly fearing termination, voluntarily resigned from his position at Lucid
on April 9, 2021.
On June 23, 2021, Pontikis filed a complaint in Alameda County
Superior Court against Atieva, Churchill Capital Corp. IV (CCIV), and
M. Klein and Company, LLC (M. Klein),1 alleging a variety of California
1 M. Klein is a wholly separate entity from Atieva, Inc., or Lucid Group,
Inc., and was dismissed from this action by order of the trial court on
January 6, 2022, after the trial court granted M. Klein’s motion to quash.
Pontikis advances no arguments of error pertaining to that ruling, and, as
such, has waived any challenge to that ruling on appeal. (Christoff v. Union
Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [“[A]n appellant’s
failure to discuss an issue in its opening brief forfeits the issue on appeal”].)
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employment-law claims. Atieva then filed a motion to dismiss based upon
forum non conveniens on September 27, 2021, citing Code of Civil Procedure
section 418.10, subdivision (a)(2).2 That subdivision provides a defendant
may file a motion “[t]o stay or dismiss the action on the ground of
inconvenient forum” “on or before the last day of his or her time to plead.”
The trial court issued a pair of orders on January 6, 2022. One granted
M. Klein’s motion to quash (see fn. 1, ante); the other addressed the issue
that is before us: Atieva’s motion to dismiss based upon forum non
conveniens. The trial court concluded that Atieva submitted unrebutted
evidence that all the events underlying the instant suit transpired in
Arizona, where Pontikis lived and worked while he was employed by Lucid.
The trial court also found that all relevant employees and key actors
referenced by the complaint worked in Arizona; and that all documentary
evidence regarding Pontikis’s claims were located there. The trial court
determined that Pinal County, Arizona, provided a suitable alternative forum
for Pontikis’s action and that there were no legal obstacles to Pontikis’s
proceeding there with his claims. The trial court declined to dismiss this case
but instead stayed proceedings to permit Pontikis to file suit in Arizona.
Pontikis timely appealed.
DISCUSSION
I. Standard of Review and Governing Law
An order staying a case in favor of a more suitable alternative forum is
an appealable order. (§ 904.1, subd. (a)(3).)
Section 410.30, subdivision (a), permits a trial court to “stay or dismiss
[an] action in whole or in part on any conditions that may be just” when the
court finds that “in the interest of substantial justice an action should be
2 Subsequent statutory references are to the Code of Civil Procedure.
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heard in a forum outside this state.” In determining whether to grant a
motion to dismiss or stay on grounds of forum non conveniens, the trial court
conducts a two-step analysis. First, it determines whether the alternate
forum proposed is a “ ‘suitable’ place for trial.” (Stangvik v. Shiley, Inc.
(1991) 54 Cal.3d 744, 751 (Stangvik).) “A forum is suitable if there is
jurisdiction and no statute of limitations bar to hearing the case on the
merits.” (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1036–1037,
citing Shiley, Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 132.) If, as is
argued here by Pontikis, the alternative forum is no longer available because
the limitations period has expired, “the general rule is that . . . a motion to
dismiss based upon an inconvenient forum argument shall not be granted.”
(Delfosse v. C.A.C.I., Inc.-Federal (1990) 218 Cal.App.3d 683, 690 (Delfosse).)
The suitability issue focuses on where the action can be brought, not where it
may be won. (Chong, at pp. 1036–1037.) On appeal the suitability issue is
reviewed de novo. (Roulier v. Cannondale (2002) 101 Cal.App.4th 1180,
1186.)
If the trial court determines that an alternative forum is suitable for
trial, “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 to decide cases in which the local community has
little concern, and weighing the competing interests of California and the
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alternate jurisdiction in the litigation. [Citations.]” (Stangvik, supra, 54
Cal.3d at p. 751.)
The grant or denial of a forum non conveniens motion at the second
step lies within the discretion of the trial court, and substantial deference is
accorded its determination. (Stangvik, supra, 54 Cal.3d at p. 751.) That
determination will not be reversed on appeal absent an abuse of discretion.
(Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th
1666, 1675.) On abuse of discretion review, we reverse only if the trial court’s
ruling “ ‘ “exceed[ed] the bounds of reason . . . . [Citation.]” ’ ” (America
Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 7.)
II. Atieva’s Motion to Dismiss Was Timely
Pontikis argues that Atieva did not file an answer, demurrer, motion to
strike, or any form of general appearance prior to their August 26, 2021
deadline to plead, and thus, the September 27, 2021 filing of the motion to
dismiss based on forum non conveniens was untimely. We disagree.
According to a declaration filed with the trial court, Atieva was unable to
meet and confer with Pontikis prior to filing a responsive pleading because
Pontikis offered his first available date as August 26, 2021—the responsive
pleading deadline. Because Atieva could not complete the meet and confer
process with Pontikis at least five days prior to the deadline for responsive
pleading, Atieva filed a declaration in support of an automatic 30-day
extension as provided by section 430.41, subdivision (a)(2).3 Atieva was
3Section 430.41, subdivision (a)(2) provides: “The parties shall meet
and confer at least five days before the date the responsive pleading is due. If
the parties are not able to meet and confer at least five days prior to the date
the responsive pleading is due, the demurring party shall be granted an
automatic 30-day extension of time within which to file a responsive
pleading, by filing and serving, on or before the date on which a demurrer
would be due, a declaration stating under penalty of perjury that a good faith
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accordingly granted additional time to file a responsive pleading, and its
dismissal motion was timely.
III. Arizona is the Proper Forum for this Case
Provided it Remains Available
After the trial court stayed proceedings, Pontikis pursued this appeal,
and he now argues that the statute of limitations applicable to his action
against Atieva in Arizona has lapsed. Because a motion to stay proceedings
in favor of an alternative forum should only be granted where the alternative
forum is available, Pontikis contends, the stay should be vacated and
Pontikis’s California action should be permitted to proceed.
The parties agree that the Arizona courts would apply a one-year
statute of limitations, measured from the date of Pontikis’s separation from
employment to his claims.4 Atieva maintains that at the time it filed its
motion to dismiss, on September 27, 2021, Pontikis had approximately six
months remaining on the Arizona statute to file there. Moreover, Atieva
continues, it entered into a tolling agreement with Pontikis on April 1, 2022,
extending Pontikis’s time to file through September 30, 2022. Atieva’s
counsel also asserted at oral argument that Pontikis in fact filed claims in the
Arizona state court, and that his case is proceeding in Arizona. Pontikis
attempt to meet and confer was made and explaining the reasons why the
parties could not meet and confer. The 30-day extension shall commence
from the date the responsive pleading was previously due, and the demurring
party shall not be subject to default during the period of the extension. Any
further extensions shall be obtained by court order upon a showing of good
cause.”
4 Atieva cites Arizona Revised Statutes section 12-541 et seq., as the
source of this one-year statute of limitations. This statute provides in
pertinent part: “There shall be commenced and prosecuted within one year
after the cause of action accrues, and not afterward, the following actions:
[¶] . . . [¶] 4. For damages for wrongful termination.”
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disputed those assertions at oral argument to some extent, contending that
his state claims were removed to Arizona federal court, and that some of his
claims are no longer proceeding in Arizona. None of these assertions are
substantiated in any filings to this court.
Pontikis raises no claim of error in his briefs concerning the second step
of the forum non conveniens analysis; he does not contend that the trial court
abused its discretion in finding the private and public factors weigh in favor
of an Arizona forum for this case. Accordingly, he has waived any such
argument on appeal. (See, e.g., Christoff v. Union Pac. Railroad Co., supra,
134 Cal.App.4th at p. 125.)
We conclude that the trial court did not abuse its discretion in declining
to exercise its jurisdiction in favor of an Arizona forum, if such a forum is
available. However, it is unclear from the record before us that such a forum
in fact remains available; the parties made competing assertions at oral
argument concerning the continued availability of Arizona as an alternative
forum. Faced with this circumstance, we adopt the same approach as our
sister Court of Appeal in Delfosse. In Delfosse, the trial court found that
another state’s courts were a more convenient forum than California, but the
statute of limitations had run in the other forum. (Delfosse, supra, 218
Cal.App.3d at pp. 690–691.) As Delfosse held, “[c]onditional dismissals
provide an appropriate remedy to this dilemma. Courts are authorized to
dismiss the matter upon the condition that the defendant . . . agree to waive
the statute of limitations. [Citations.] This procedure avoids forum shopping
by plaintiffs, prevents defendants from being forced to litigate claims in
California when it is inappropriate to do so, and yet allows matters to be
heard on the merits.” (Id. at p. 691, fn. omitted; see also Roman v. Liberty
University, Inc. (2008) 162 Cal.App.4th 670, 683 [affirming forum non
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conveniens dismissal where defense counsel made a binding admission at
oral argument that the statute of limitations had not run in alternative
forum].) We do likewise here by reversing the trial court’s unconditional stay
of proceedings and remanding the matter with directions to the trial court to
condition any further stay of proceedings on Atieva’s waiver of any Arizona
statute of limitations defense.
DISPOSITION
The January 6, 2022 order staying this case on grounds of forum non
conveniens is reversed and the cause is remanded. The trial court shall
reconsider its stay order and determine whether to lift the stay or to
maintain it on the condition that Atieva agree to waive any statute of
limitations defense it has under Arizona law. The January 6, 2022 order
granting M. Klein’s motion to quash is affirmed. The parties shall bear their
own costs on appeal.
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_________________________
Van Aken, J.*
We concur:
_________________________
Stewart, P.J.
_________________________
Richman, J.
Pontikis v. Atieva, Inc. et al. (A164444)
* Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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