Campofiore v. Coyote Logistics CA5 ( 2022 )

Filed 12/13/22 Campofiore v. Coyote Logistics CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
ANTHONY CAMPOFIORE et al.,
F082114
Plaintiffs and Appellants,
(Super. Ct. No. BCV-18-102108)
v.
COYOTE LOGISTICS, LLC et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
Ferguson Case Orr Paterson and Wendy C. Lascher for Plaintiffs and Appellants.
Emerson  Church Law and Ryan D. Libke for Defendant and Respondent
Luberski, Inc.
Lewis Brisbois Bisgaard & Smith, Jeffrey A. Miller, Tracy D. Forbath, Cary L.
Wood, Philip N. Blanco, and Ernest Slome for Defendants and Respondents Coyote
Logistics, LLC and United Parcel Service, Inc.
-ooOoo-
This wrongful death action arises from a fatal traffic accident that occurred in
Indiana. The plaintiffs brought an Indiana action against Indiana-based defendants and a
California action against California-based defendants, who included the truck driver who
ran a stop sign and his employer. After two out-of-state entities that do business in
California were added to the California action in place of Doe defendants, one of those
defendants filed a motion to dismiss this lawsuit on the ground that California is an
inconvenient forum. (Code Civ. Proc., § 410.30, subd. (a).)1 After the driver, his
employer, and a third Bakersfield-based defendant settled, the trial court granted the
motion and dismissed the case.
Under California law, a moving party defendant asserting California is an
inconvenient forum must prove that (1) the alternate forum is suitable and (2) the public
and private interests at stake weigh in favor of the alternate forum. An alternate forum is
suitable only if all defendants are subject to jurisdiction in that forum and the plaintiff’s
claims are not barred by any statute of limitations defense.
The remaining defendants sought to establish Indiana was a suitable forum by
signing a written stipulation in which they (1) agreed only to jurisdiction in the specific
Indiana case filed by plaintiffs against the Indiana-based defendants and (2) included a
condition requiring plaintiffs to pursue their claims in that Indiana case within 30 days of
dismissal of this lawsuit. Before the trial court granted the motion, the Indiana case was
settled and dismissed with prejudice.
Based on our independent review, we conclude the moving defendant did not
carry its burden of demonstrating Indiana is a suitable forum. It is doubtful the
stipulation’s condition for proceeding in a specific Indiana case can be satisfied because
that case against the Indiana-based defendants has been dismissed with prejudice. In
addition, more than 30 days have passed since the trial court filed its order of dismissal.
1 Subsequent undesignated statutory references are to the Code of Civil Procedure.
2.
Furthermore, the representations made in court do not constitute an unequivocal
agreement by all four remaining entities to accept that an Indiana court has personal
jurisdiction over them. Thus, the moving party defendant did not carry its burden.
We therefore reverse the judgment.
FACTS
The Accident
On December 9, 2016, Melissa Campofiore was killed in a traffic accident in
Portland, Indiana. Melissa’s car struck the side of a semi-trailer being hauled by a
Kenworth tractor driven by defendant Buta Singh. Immediately before the collision, Buta
Singh had run a stop sign and entered the intersection into the path of Melissa’s vehicle.
During his deposition, Buta Singh testified that he “missed the stop sign” and the car hit
the side of the trailer. His testimony was confirmed by a police report, which stated the
skid marks and measurements showed the tractor-trailer entered the path of Melissa’s car
after failing to stop at the intersection’s stop sign.
Defendants
At the time of the accident, Buta Singh was on his way to defendant Minnich
Poultry, LLC’s (Minnich Poultry) production facility in Portland, Indiana to pick up a
shipment of eggs for defendant Luberski, Inc., a California corporation (Luberski).
Luberski is a California food wholesaler that does business as Hidden Villa Ranch and its
principal offices are in Fullerton, California.
A September 2014 supply agreement set forth the terms under which Minnich
Poultry agreed to supply Luberski with eggs from its Portland facility. The agreement
stated “that it is the responsibility of [Luberski] to arrange for the deliveries of all Shell
Eggs sold hereunder. Each week’s Shell Egg shipments shall be made in accordance
with a shipping schedule to be agreed upon in writing by the parties during the preceding
week.” Luberski is registered with the Federal Motor Carrier Safety Administration
(FMCSA) as a contract carrier.
3.
To arrange for transportation of the egg shipment relevant to this litigation,
Luberski contacted a freight broker it had used in the past—defendant Coyote Logistics,
LLC (Coyote). Coyote is (1) an authorized broker registered with the FMCSA; (2) a
Delaware limited liability company with offices in Chicago; and (3) a wholly-owned
indirect subsidiary of defendant United Parcel Service, Inc., an Ohio corporation (UPS).
Coyote and UPS do business in California. The written shipping instructions sent by
Luberski to Coyote stated the eggs were to be picked up on December 10, 2016, and
delivered to Norco, California.
After being contacted by Luberski about the egg shipment, Coyote contracted with
Union Trans Inc. to transport the shipment. Union Trans Inc. is registered with the
FMCSA as a contract carrier, and its business address is on Stoney Peak Lane in
Bakersfield.2
Union Trans Inc. needed to cover the load and contacted defendant Road Liner
Logistics, Inc. Road Liner Logistics is a California corporation registered with the
FMCSA as a common carrier, and its business address is on Golden State Avenue in
Bakersfield.
Next, Road Liner Logistics contacted defendant Sukhwinder Singh, who does
business as Pride Transportation, to see if he was able to accept the load. At the time of
2 Union Trans Inc. is a California corporation assigned corporate number C3770712
by the California Secretary of State. The Secretary of State’s Web site states the
corporation was suspended on June 29, 2021. A suspended corporation may transact no
business of any kind, including prosecuting or defending an action in a California court.
(Corp. Code, § 2205, subd. (c); Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th
1361, 1365–1366.) Thus, until its corporate status is reinstated, Union Trans Inc. may
not appear in court and oppose the request to add it as a Doe defendant in this lawsuit—a
request that will be pending after remand because it was not ruled upon before UPS’s
motion to dismiss due to an inconvenient forum was granted.
In addition, we note that an attorney who knowingly represents a suspended
corporation and conceals the suspension is subject to sanctions. (Palm Valley
Homeowners Assn., Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 563.)
4.
the accident, Sukhwinder Singh employed about five drivers, he was registered with the
FMCSA as a common carrier, and he conducted business from his home in Bakersfield.
Sukhwinder Singh testified Road Liner Logistics was “doing dispatch” for him and that
he had a written agreement with it to act as a subhauler. The subhaul agreement stated
Sukhwinder Singh would furnish transportation services as an independent contract, not
as an employee.
Sukhwinder Singh advised Road Liner Logistics that he could transport the load.
He then contacted Buta Singh, his employee, with instructions for picking up the eggs.
Buta Singh was on his way to the Minnich Poultry facility at the time of the accident.
The Kenworth tractor he was driving was owned by Sukhwinder Singh.
PROCEEDINGS
The Indiana Lawsuit
In June 2018, Anthony Campofiore filed a wrongful death action in Indiana on
behalf of himself, his wife Melissa’s estate, and their two sons who were passengers in
the car at the time of the collision. The defendants named were Minnich Poultry; Jan and
Ilze Koch; the Jay County Highway Department, the Jay County Commissioners, and the
City of Portland.
The complaint alleged (1) Minnich Poultry was negligent in retaining Buta Singh
and others to transport its goods; (2) Jay and Ilze Koch owned property adjacent to the
intersection and overgrown vegetation on their property obstructed Melissa’s ability to
see the tractor-trailer approaching the intersection; and (3) the Jay County Highway
Department, the Jay County Commissioners, and the City of Portland failed to maintain a
reasonably safe roadway and intersection.
After discovery, plaintiffs dismissed Minnich Poultry and other defendants from
the Indiana action, since they were shown to have no involvement in the accident, leaving
only the Koches and Jay County as defendants. A mediation was then held on August 11,
2020, between plaintiffs, the Koches, and Jay County and resulted in a settlement. The
5.
mediator filed a report with the court stating a settlement agreement was signed. The
parties filed a stipulation to dismiss the case with prejudice. After reviewing the
stipulation, the Indiana trial court entered an order dismissing the case with prejudice on
August 28, 2020.
The California Lawsuit
In August 2018, about two and a half months after filing the Indiana action,
Anthony Campofiore filed a complaint for damages in Kern County, on behalf of himself
and as guardian for his four minor sons. The causes of action alleged were for wrongful
death, negligence, negligent hiring and selection, vicarious liability, and emotional
distress by a bystander. The defendants named were (1) Buta Singh; (2) Sukhwinder
Singh doing business as Pride Transportation; (3) Road Liner Logistics; and (4) Hidden
Villa Ranch Produce—a fictitious business name used by Luberski. Thus, when the
complaint was filed in Kern County, all named defendants were either California
residents or California corporations with offices in California.
In June 2019, plaintiffs amended the complaint to substitute Coyote and UPS in
place of two Doe defendants. Plaintiffs alleged these two entities did business in
California.
In August 2019, UPS filed a demurrer and Coyote filed an answer. In October
2019, after the trial court ruled on the demurrer, UPS filed an answer.
On December 19, 2019, UPS filed a motion to dismiss based on forum non
conveniens or, alternatively, to stay the proceedings. At that time, the Indiana action was
still pending. The motion to dismiss was supported by a stipulation signed by Luberski,
Coyote, and UPS. The stipulation stated they would agree to jurisdiction in Indiana if
certain conditions were met. The text of the stipulation is set forth in part II.B. of this
opinion. The hearing on UPS’s motion to dismiss was set initially for February 5, 2020,
and was later reschedule for February 26, 2020.
6.
On February 14, 2020, Buta Singh and Sukhwinder Singh filed a motion for order
determining that their settlement with plaintiffs was in good faith for purposes of sections
877 and 877.6. The motion asserted Buta Singh and Sukhwinder Singh were insured
under a single policy with a combined limit of $1,000,000. The motion also asserted
Road Liner Logistics’ insurance company had denied coverage under its policy, but as
part of the settlement was tendering the amount of $750,000, subject to an order of good
faith settlement and approval of petitions for minors’ compromise. As a result, all
available insurance funds for these three defendants had been tendered to resolve
plaintiffs’ claims against them.
Both UPS’s motion to dismiss and the motion to determine whether the settlement
was in good faith were set for March 19, 2020. Before that hearing was held, the
COVID-19 pandemic affected the court’s schedule and the hearing was continued again.
In April 2020, plaintiffs filed a first amended complaint with nine causes of action.
The content of those causes of action are not relevant to the suitability issue addressed in
this opinion.
On May 18, 2020, plaintiffs filed a request to amend the complaint by inserting
Union Trans Inc. in place of a Doe defendant. This request created additional issues
relating to the suitability of Indiana as an alternate forum—specifically, whether an
Indiana court would have jurisdiction over the Bakersfield-based corporation and whether
the statute of limitations would bar any claims brought against Union Trans Inc. in
Indiana.
On June 24, 2020, the trial court held a hearing on the motion to determine good
faith settlement and UPS’s motion to dismiss. The court denied the motion to determine
good faith settlement without prejudice due to the absence of facts necessary to complete
the required analysis. The court’s tentative ruling was to grant UPS’s motion to dismiss,
but the court ordered the action stayed to allow the settling defendants to file another
motion under section 877.6.
7.
In explaining its tentative ruling to dismiss because of an inconvenient forum, the
trial court stated that, under Indiana rule, it did not seem likely that plaintiff “would be
able to bring these Defendants into the Indiana case through amendment which relates
back to the complaint. [¶] However, any failure to properly bring or to initially name
them as Defendants would appear to be the fault of Plaintiff[s] in that they knew that
those Defendants existed from the traffic collision report. [¶] The forum was available
for Plaintiffs from the start, but they failed to name Defendants when they filed the
Indiana suit. That said, the statute of limitations against these Defendants would be a bar
to Indiana jurisdiction. [¶] In this case, the other [i.e., nonsettling] Defendants have
agreed to waive statute of limitations.”3 In response to this explanation, plaintiff’s
counsel stated Union Trans Inc. (which appeared to be excluded from the court’s
analysis) had been sued and served but had not entered an appearance. Counsel argued
that “one way or the other, there will be a statute of limitations problem with respect to
Union” Trans Inc. in Indiana.
On July 21, 2020, Road Liner Logistics, Sukhwinder Singh, and Buta Singh filed a
renewed motion for good faith settlement. That motion was heard on August 20, 2020.
Before the hearing occurred, plaintiffs and the defendants in the Indiana action conducted
the August 11, 2020 mediation that resulted in a settlement. On August 18, 2020,
plaintiffs filed a request to vacate the stay issued in the California action, relying in part
on the fact the Indiana action had been settled. On August 20, 2020, the trial court heard
and granted the renewed motion for good faith settlement.
On August 25, 2020, the trial court held a case management conference at which
issues relating to UPS’s motion to dismiss were discussed. An attorney representing
Union Trans Inc. made a special appearance by CourtCall. The attorney representing
3 Defendants have cited no rule of law providing that it was improper for an out-of-
state plaintiff to sue Road Liner Logistics, Sukhwinder Singh, and Buta Singh (the
defendants based in Bakersfield) in their home state.
8.
UPS and Coyote referred to “our status conference statement stating that the Defendant
[Union] Trans [Inc.] has stipulated to jurisdiction in Indiana as well” and asserted that all
remaining nonsettling defendants had “stipulated jurisdiction in Indiana.” Counsel for
Trans Union Inc. did not confirm or deny this assertion, which did not mention the statute
of limitations. Subsequently, the court asked plaintiff’s counsel if the defendants had
waived the statute of limitations and counsel reply: “I understand they waived it. But
what does that mean in the s[ens]e that it is retroactive? We have to start anew. I just
don’t know. And I don’t know how Indiana law will approach that.”
Counsel for UPS and Coyote also stated he had not received a copy of plaintiffs’
request to vacate stay and related declaration, which were filed on August 18, 2020. The
trial court stated it would give counsel an opportunity to review and respond to that
request, continued the matter to October 9, 2020, and set deadlines for the opposition and
plaintiffs’ reply. One of the issues to be addressed was the impact of the imminent
dismissal of the settled Indiana action.
On August 28, 2020, three days after the case management conference, the Indiana
trial court entered an order dismissing the Indiana action with prejudice. On September
18, 2020, UPS and Coyote filed their response to plaintiffs’ request to vacate the stay.
That response argued there were no statute of limitations issues because all of the
remaining defendants had stipulated to jurisdiction in Indiana. The response did not
distinguish between stipulating to jurisdiction and waiving the statute of limitations, an
affirmative defense.
At the October 9, 2020 case management conference, the trial court addressed
UPS’s motion to dismiss due to an inconvenient forum. The court noted its earlier
tentative ruling to grant the motion had been delayed for rulings on the good faith
settlement motions and the petitions for minor’s compromise. Because those rulings had
been made, the court announced its tentative to dismiss the matter without prejudice and
then heard argument from counsel. Plaintiffs’ counsel argued that Luberski and Union
9.
Trans Inc. were California corporations,4 none of the four defendants were residents of
Indiana, and the claims against the remaining defendants were for negligent hiring and
selection of a California carrier—a theory of liability that did not require Indiana law
enforcement personnel to testify about the collision. After hearing argument, the court
adopted its tentative ruling and stated, “the matter will be dismissed without prejudice.”
The court did not explain why it did not stay the dismissal until notified that an action
had been successfully instituted in Indiana against the four remaining entities—UPS,
Coyote, Luberski, and Union Trans Inc.
Counsel for UPS and Coyote prepared the written order granting the motion to
dismiss and the court signed and filed the order on October 21, 2020. In December 2020,
plaintiffs filed a timely appeal.
DISCUSSION
I. BASIC LEGAL PRINCIPLES
The equitable doctrine of forum non conveniens was codified by the Legislature’s
enactment of section 410.30, subdivision (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.”
In 1991, our Supreme Court adopted a two-step analysis for determining whether
to grant or deny a motion brought on the ground of forum non conveniens. (Stangvik v.
Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) First, the court must determine
whether the proposed alternate forum is a suitable place for trial. (Ibid.) Second, if the
alternate forum is suitable, the court must weigh and balance “the private interests of the
4 Counsel referred to Union Trans Inc. as a defendant, but the request to add that
entity in place of one of the Doe defendants had not been ruled upon by the trial court.
Because the dismissal was granted, no ruling on the request was made.
10.
litigants and the interests of the public in retaining the action for trial in California.”
(Ibid.) The moving party defendant bears the burden of proof. (Ibid.)
A different standard of review applies to each step. The threshold issue of the
alternate forum’s suitability is a nondiscretionary legal question subject to de novo
review. (Diaz-Barba v. Superior Court (2015) 236 Cal.App.4th 1470, 1483; Morris v.
AGFA Corp. (2006) 144 Cal.App.4th 1452, 1464.) In contrast, the second step of
weighing and balancing the public and private factors involves the exercise of discretion
and, as a result, appellate courts give “substantial deference” to the trial court’s
determination. (Stangvik, supra, 54 Cal.3d at p. 751.) In conducting an abuse of
discretion review, appellate courts ask whether the determination is “within the range of
options available under governing legal criteria in light of the evidence before [the trial
court].” (Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 758,
disagreed with on other grounds in National Football League v. Fireman’s Fund Ins. Co.
(2013) 216 Cal.App.4th 902, 933.)
II. SUITABILITY OF THE ALTERNATE FORUM
A. Principles Defining Suitability
An alternate forum is suitable if it has jurisdiction and there is no statute of
limitations bar to hearing the case on the merits. (David v. Medtronic, Inc. (2015) 237
Cal.App.4th 734, 743.) Thus, “ ‘the suit will be entertained, no matter how inappropriate
the [California] forum may be, if the defendant cannot be subjected to jurisdiction in
other states. The same will be true if the plaintiff’s cause of action would elsewhere be
barred by the statute of limitations, unless the court is willing to accept the defendant’s
stipulation that he will not raise this defense in the second state.’ ” (Stangvik, supra, 54
Cal.3d at p. 752.) Generally, where there are multiple defendants, the moving party
defendant “must show that all defendants are subject to jurisdiction in the proposed
alternative forum.” (David, supra, at p. 743.) In Stangvik, the courts of Sweden and
11.
Norway were shown to be suitable forums for the trial of the case because the
“[d]efendants stipulated that they would submit to jurisdiction in Sweden or Norway,
respectively, as well as to the tolling of the statute of limitations during the pendency of
the actions in California.” (Stangvik, supra, at p. 752.)
B. Terms of the Written Stipulation to Jurisdiction
With the foregoing principles in mind, we turn to the written stipulation signed by
UPS, Coyote and Luberski in 2019 and submitted in support of UPS’s motion. The
operative paragraph of the stipulation reads:
“If, and only if, this California case is dismissed in its entirety pursuant to
Defendant, UNITED PARCEL SERVICE, INC.’s Motion to Dismiss, the
defendants who have signed below by and through their attorneys of record,
agree to jurisdiction in Plaintiff’s currently pending Jay County, Indiana
State Court case (38D01-1806-CT-000010) if Plaintiffs pursue that case
against these defendants within 30 days of dismissal of this California
case.” (Italics in original.)
This language contains conditions, limitations and ambiguities. For purposes of
this appeal, we consider only (1) the limitation in which the signatories agree to
jurisdiction in a specific Indiana case and (2) the condition that the claims be pursued
within 30 days of dismissal.
First, the agreement to jurisdiction in Jay County Superior Court case No. 38D01-
1806-CT-000010 does not assure the signatory defendants will accept jurisdiction of an
Indiana court because the case where they agreed to jurisdiction was dismissed with
prejudice on August 28, 2020. Consequently, the stipulation as written does not compel
them to accept jurisdiction in a newly filed Indiana lawsuit. Furthermore, UPS and
Coyote were aware that the Indiana action had been settled yet did not submit a new
written stipulation with their response to plaintiff’s request to vacate the stay before or at
the October 9, 2020 case management conference.
Second, the order dismissing the California action was signed and filed by the trial
court on October 21, 2020. A condition in the stipulation required plaintiff to pursue case
12.
No. 38D01-1806-CT-000010 against the signatory defendants “within 30 days of
dismissal of this California case.” Friday, November 20, 2020, was 30 days from when
the dismissal order was filed. Consequently, the deadline given in the stipulation expired
approximately two years ago. Because their timing condition cannot be met, the
signatory defendants can easily argue to an Indiana court that their stipulation is no
longer enforceable and blame plaintiffs for delaying the litigation by pursuing this appeal
rather than an action in Indiana. We note the importance of the timing condition to the
stipulating defendants is shown by the fact they chose to italicize the words “if Plaintiffs”
immediately before the text “pursue that case against these defendants within 30 days.”
Consequently, based on our independent review of the written stipulation, we
conclude UPS has not carried its burden of demonstrating Indiana is a suitable forum.
The stipulation’s explicit case limitation and timing condition render it doubtful that all
four entities will accept an Indiana court as personal jurisdiction over them. As a result,
UPS’s motion to dismiss must be denied. As for the representations made in court about
submitting to jurisdiction in Indiana, the record contains no representation from someone
entitled to act on behalf of Union Trans Inc. that it will not rely on the limitations or
conditions in the written stipulation. (See David v. Medtronic, Inc., supra, 237
Cal.App.4th at p. 743 [moving party defendant “must show that all defendants are subject
to jurisdiction in the proposed alternative forum”].)
C. Other Issues
Based on the foregoing conclusions, we do not reach the issue of whether Union
Trans Inc., a California corporation based in Bakersfield, is bound by an agreement to
submit to jurisdiction in Indiana. In the record presented, we have located no written
document in which that corporation or its attorney expressly agreed to jurisdiction. In
addition, the reporter’s transcripts provided do not reflect an oral statement by the
13.
corporation’s attorney agreeing to jurisdiction. It is uncertain whether the oral statements
by counsel for UPS would be binding on Union Trans Inc.
In addition, we do not reach the other aspect of the suitability analysis—that is,
whether all defendants have waived the statute of limitations defense. We note that UPS
and Coyote incorrectly argued in papers filed in the trial court that no statute of
limitations issues existed because all the remaining defendants stipulated to jurisdiction
in Indiana. California case law establishes that jurisdiction and the statute of limitations,
which is an affirmative defense, are different concepts. As a result, stipulations or
agreements sufficient to establish the suitability of an alternate forum refer to both
elements. (E.g. Stangvik, supra, 54 Cal.3d at p. 752 [“Defendants stipulated that they
would submit to jurisdiction in Sweden or Norway, respectively, as well as to the tolling
of the statute of limitations during the pendency of the actions in California”]; Roulier v.
Cannondale (2002) 101 Cal.App.4th 1180, 1186 [both defendants stipulated to
jurisdiction in Switzerland and to waive any statute of limitations defense]; see also,
Martin Oil Marketing Ltd. v. Kartzioris (Ind. 2009) 908 N.E.2d 1183, 1187 [“statute of
limitations is an affirmative defense that must be both pleaded and proven by the party
asserting it”].)5
Also, we do not reach the issue of whether the trial court abused its discretion or
committed legal error in the second step of the inconvenient forum analysis, which
requires weighing and balancing the public and private factors involved. (Stangvik,
supra, 54 Cal.3d at p. 751.)
5 We recognize that UPS, Coyote and Luberski contend they also have represented
in court that they have waived the statute of limitations defense. We note the record does
not contain a waiver of the statute of limitations by Union Trans Inc.
14.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order granting
the motion to dismiss and to enter a new order denying the motion. Plaintiffs shall
recover their costs on appeal.
FRANSON, J.
WE CONCUR:
LEVY, ACTING P. J.
SMITH, J.
15.