National Football League v. Fireman's Fund Insurance , 216 Cal. App. 4th 902 ( 2013 )

Filed 5/28/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
NATIONAL FOOTBALL LEAGUE et al., B245619
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC490342)
v.
FIREMAN‟S FUND INSURANCE
COMPANY et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles County, John Shepard
Wiley, Jr., Judge. Affirmed.
Covington & Burling, Donald W. Brown, Michael S. Greenberg, Jeffrey M.
Davidson; Munger, Tolles & Olson and Cary B. Lerman, for Plaintiffs and Appellants.
Cozen O‟Connor, Charles E. Wheeler, Matthew Walsh, Amanda M. Lorenz;
Carroll, McNulty & Kull, Christopher R. Carroll and Heather E. Simpson, for Defendants
and Respondents TIG Insurance Company, The North River Insurance Company and
U.S. Fire Insurance Company.
Selman Breitman, Sheryl W. Leichenger and Elisabeth M. D‟Agostino, for
Defendant and Respondent American Guarantee & Liability Insurance Company.
Tressler, Michaela L. Sozio, Elizabeth L. Musser; White & Williams, Michael O.
Kassak and Edward M. Koch, for Defendants and Respondents Federal Insurance
Company, Vigilant Insurance Company and Great Northern Insurance Company.
The Aguilera Law Group, A. Eric Aguilera; Hermes, Netburn, O‟Connor &
Spearing, Kevin J. O‟Connor, Peter C. Netburn and Matthew C. Kalin, for Defendants
and Respondents Discovery Property & Casualty Insurance Company, St. Paul Protective
Insurance Company, Travelers Casualty & Surety Company, Travelers Indemnity
Company and Travelers Property Casualty Company of America.
Troutman Sanders, Terrence R. McInnis and William D. Burger, Jr., for Defendant
and Respondent XL Insurance America, Inc.
Clyde & Co Us, David A. Gabianelli, Andrew G. Wanger, Daren S. McNally and
Barbara M. Almeida, for Defendants and Respondents, Ace American Ins. Co., Century
Indemnity Ins. Co., Illinois Union Ins. Co. and Westchester Fire Ins. Co.
Gordon & Rees, Peter Schwartz and Gary Collis, for Defendant and Respondent
Alterra America Insurance Company.
Arnold & Porter, Brian K. Condon, Jake R. Miller; Jackson & Campbell, Warren
Lutz, Timothy R. Dingilian and Paul D. Smolinsky, for Defendants and Respondents
Chartis Property Casualty Company, Chartis Specialty Insurance Company, Illinois
National Insurance Company and National Union Fire Insurance Company of Pitssburgh,
Pa.
Wilson, Elser, Moskowitz, Edelman & Dicker, William K. Enger and James J.
Pulliam, for Defendant and Respondent Guarantee Insurance Company.
I. INTRODUCTION
The National Football League has returned to Los Angeles, but not, as many
Angelenos hope, bearing the gift of a new home team. The league administration and its
intellectual property marketing arm have been sued in multiple states by dozens of former
players alleging lifelong brain damage from on-field injuries dating back to the 1950‟s.
In this case the plaintiffs, National Football League and NFL Properties LLC, seek a Los
Angeles Superior Court declaratory relief judgment regarding the coverage duties of 32
insurance carriers pursuant to some 187 commercial liability policies that were issued
over a 50-60 year period. All the same entities are parties to parallel coverage actions
filed by some of the insurers in New York state courts at approximately the same time as
the California case.
The insurer defendants sought a dismissal or stay of the California case on a
theory of forum non conveniens. Following extensive briefing and a hearing, the
California trial court ordered the California proceeding stayed pending the outcome of the
New York actions. The plaintiffs appeal, contending the trial court misapprehended the
applicable legal test, and abused its discretion in any event. We affirm and clarify the
standards to be applied by a trial court which intends to stay rather than dismiss a
California case on grounds of forum non conveniens. We also hold the plaintiffs, whose
principal places of business are in New York City, are not California residents in the
inconvenient forum context, even though three teams reside in California. Finally, we
find no abuse of discretion in the trial court‟s analysis and conclusion that the California
action should be stayed.
2
II. BACKGROUND
A. The NFL policyholder plaintiffs
Plaintiff National Football League (“NFL”), is an unincorporated association
headquartered in New York City since 1960 and comprised of 32 member “clubs” based
in various states throughout the country. Only two states, California and Florida, are
home to three teams. New York is home to only the Buffalo Bills; the “New York”
Giants and “New York” Jets are located in northern New Jersey, a short distance from
New York City.1 Over the past 50 years, more NFL regular season games have been
played in California than in any other state. The annual Super Bowl and Pro Bowl games
have been played in California 34 times, most often in Los Angeles County.
Plaintiff NFL Properties LLC is a Delaware corporation headquartered, since
1970, in New York City. At the time the actions at issue here were filed, NFL Properties
was not licensed to do intrastate business in California. NFL Properties develops,
licenses and markets the intellectual property of the NFL and its member clubs. NFL
Properties is the successor to National Football League Properties, Inc. (“NFLP”), which
was incorporated in California in 1963. NFLP was a California corporation throughout
its existence, which ended in 2001. Its principal place of business until
approximately1970 was in Los Angeles County, where it and then NFL Properties
maintained an office unti1 2005. 2
1
The California teams are the San Francisco 49ers, Oakland Raiders and San Diego
Chargers. From 1946 to 1979 a fourth club, the Rams, made its home in Los Angeles;
the Rams moved to Anaheim in 1980 and to St. Louis in 1995. The Chargers were
located in Los Angeles for their inaugural season (1960), then moved to San Diego. The
Raiders played their home games in Los Angeles from 1982 to 1994 before returning to
Oakland.
2
NFL Properties‟ parent company, not a party to this lawsuit, has a substantial
presence in California in that two of its units, NFL Network and NFL.com, have
3
NFL‟s largest offices are in New York, where the various NFL entities conduct the
majority of their business.3 Anastasia Danias, Vice-President of Legal Affairs for NFL,
works in New York, as do other NFL executives. NFL entities regularly file suit in New
York state and federal courts, including insurance coverage actions against insurers
located in eastern states other than New York.
B. The insurance and insurer defendants
Thirty-two insurers are named as defendants in the instant coverage case. NFL
alleges those companies issued commercial general liability (“CGL”) policies providing
primary and excess coverage over a roughly 45-year period from the late 1960‟s to 2012.
Decades of policies are implicated in the underlying tort litigation because CGL policies
generally cover only occurrences within the policy period and the tort plaintiffs allege
injuries dating back to the 1950‟s. Plaintiffs NFL and NFL Properties separately
purchased and maintained their own insurance programs over the years involved here up
until 2000, when they fully integrated their programs.
Thus far, the NFL plaintiffs have identified at least 187 policies issued to one or
both of them by the 32 defendants covering time periods between March 1968 and
August 2012. The vast majority were brokered and delivered to NFL in New York City.
The policies provide coverage in layers: a first-recourse “primary” layer and “umbrella”
or “excess” layers of coverage. Fifty-two of the policies, issued by 12 of the insurer
defendants, are primary policies, which include a duty to defend against lawsuits
potentially covered by the policy. Prior to 1977, NFL relied primarily on
California-based insurance brokers and offices. It is expected that some or all policies
headquarters in Los Angeles County. The NFL Network headquarters houses a staff of
more than 300 people, including a number of NFL employees and an NFL executive
vice-president, making it the largest NFL-related entity office outside New York.
3
Unless otherwise noted, all subsequent references to “NFL” as a party should be
read to include both plaintiffs.
4
from that era, which are yet to be located, were issued through California brokers and/or
to California-based NFL entities.
All the defendants are licensed and/or doing business in both California and New
York. With one exception, the insurers currently have their principal places of business
east of the Mississippi River, primarily in the northeast and mid-Atlantic states. The
majority are located within 250 miles of New York City. Only Fireman‟s Fund has a
principal business location in California, in the city of Novato. Three insurers have their
principal place of business in New York. Fourteen defendants have their principal place
of business in either Connecticut or New Jersey, which along with New York are
collectively referred to as the “Tri-State Area.” Four insurers have their principal place
of business in Pennsylvania. Four more are located in Illinois, and one each are in
Florida, New Hampshire, North Carolina, Virginia, and Minnesota. Thirty of the 32
insurer defendants are incorporated in east coast states, Illinois or Indiana.
Chartis is the only primary carrier with a principal place of business in New York.
NFL alleges that Chartis issued 12 policies under which NFL is entitled to coverage.
Eleven policies were negotiated primarily between underwriters located in New York and
NFL‟s New York broker, and the policies were delivered to NFL in New York. One
Chartis policy was negotiated primarily between underwriters located in both Illinois and
New York and an NFL broker in Indiana. NFL tendered its claims for coverage under
the Chartis policies from its New York offices, and Chartis is handling those claims in
New York, where documents concerning the claims are located.
TIG issued more duty-to-defend policies than any other insurer. Although TIG is
incorporated in California and maintained its principal business location here at the time
most of its NFL policies were written, the TIG policies were issued to NFL in New York
through a New York-based broker. All relevant TIG documents and personnel are
located in Manchester, New Hampshire. TIG‟s two affiliates have their principal places
of business in New Jersey, where all their relevant documents and witnesses are located.
5
The Travelers policies were negotiated, issued, or issued for delivery to NFL in
New York, often through New York brokers. Travelers is handling NFL‟s claims in New
York City.
ACE is headquartered in Philadelphia. All 28 of its primary and secondary policies
allegedly issued to NFL since 1968 were brokered, issued, and delivered to NFL in New
York. Although ACE is handling NFL‟s claims partly in California, representatives from
New Jersey, Delaware and Pennsylvania are also involved.
The Chubb policies were delivered to NFL in New York, and most of the brokers
for those policies are located in New York. One Chubb person responsible for NFL
claims handling is located in California; several others are located in Texas and New
Jersey.
Hartford Accident & Indemnity Company and New England Reinsurance
Corporation issued seven policies to NFL. Six policies for which information is
available, were issued in New York, five through a New York-based broker. NFL‟s
claims under these policies have been handled by representatives in Connecticut working
with NFL personnel in New York.
XL Insurance America issued six policies, and XL Select Insurance Company
issued one. All seven were brokered, underwritten, and delivered in New York. All
claims by NFL under these policies are being handled in Pennsylvania.
Fireman‟s Fund or an affiliate issued four policies to NFL in New York. Three
policies were issued through a New York-based broker and one primary policy was
issued through a California-based broker that is now located in Illinois. This insurer is
handling NFL‟s claims through employees in California and South Carolina, who have
communicated with NFL‟s New York personnel.
Through Harbor Insurance Company and Niagara Fire Insurance Company,
Continental Insurance Company issued four policies to NFL. Three were negotiated
between New York underwriters and brokers; one involved a New York underwriter and
6
a broker in California. That California broker has since been acquired by a Chicago-
based brokerage. NFL‟s claims under these policies are being handled in New Jersey.
Allstate Insurance Company is the successor in interest to Northbrook Excess &
Surplus Insurance Company, formerly Northbrook Insurance Company. All the policies
under which Allstate may be liable were issued to NFL in New York through a New
York broker. All claims handling with respect to these policies is taking place in Illinois.
Alterra issued one policy to NFL through a New York broker; it is handling NFL‟s
claims in New York and Virginia.
American Re issued one policy to NFL through a California broker that has since
been acquired by a Chicago-based brokerage. All claims handling is taking place in New
Jersey.
American Guarantee & Liability Insurance Company, Arrowood, Guarantee
Insurance Company and OneBeacon Insurance Company each issued one policy to NFL
in New York and through a New York broker in most cases. These carriers are handling
NFL‟s claims in states other than California, including Minnesota, Georgia and Florida.
C. The underlying tort litigation
As set forth in appellants‟ appendix, in July 2011, 73 former players sued the NFL
and NFL Properties, along with helmet-maker Riddell in Los Angeles Superior Court (the
“Maxwell” case). The players alleged concussions and other injuries sustained during
their NFL careers had resulted in brain and other neurological damage, and that, at its
highest management levels, NFL negligently failed to protect players against such long-
term injuries. Maxwell was the first such lawsuit filed against NFL. In August 2011, two
similar actions were filed in Los Angeles Superior Court on behalf of 63 players (“Pear”
and “Barnes”). Also in August 2011, seven former players filed a putative class action
against NFL in the United States District Court for the Eastern District of Pennsylvania
(“Easterling”). Maxwell, Pear, Barnes and Easterling were the vanguard of what has
7
become a large number of lawsuits filed on behalf of former players in California and at
least eight other states throughout the country (“underlying tort litigation”). Some cases
allege fraud and conspiracy in addition to negligence.
NFL removed Maxwell, Pear, and Barnes to the United States District Court for
the Central District of California on the basis of a federal question of jurisdiction,
contending that plaintiffs‟ claims were preempted under the Labor Management
Relations Act and provisions of the players‟ Collective Bargaining Agreement.4 NFL
subsequently moved to transfer those and other federal actions for coordinated or
consolidated Multidistrict Litigation (“MDL”) of pretrial proceedings in a single court.
NFL and most of the tort plaintiffs urged that the consolidated proceedings be assigned to
the Eastern District of Pennsylvania, where Judge Anita B. Brody was presiding over
Easterling, the first case filed in federal court. In its transfer motion, NFL argued the
Eastern District of Pennsylvania was the “most suitable” forum because, among other
things, it “is a convenient forum for many defendants and potential witnesses in the
Actions, with the NFL headquartered in nearby New York City, and the plaintiffs in
the . . . [removed California actions], more than half of whom reside in the Eastern part of
the United States . . . .”5
In January 2012, the Judicial Panel on Multidistrict Litigation ordered the
Maxwell, Pear, and Barnes actions transferred to the Eastern District of Pennsylvania for
MDL pretrial proceedings. All the players allege in the concussion MDL that “all NFL
policies and decisions relevant to the conduct alleged herein occurred primarily in the
4
The Collective Bargaining Agreement provides that it shall be construed,
interpreted and governed by New York law.
5
Specifically, NFL argued that: (1) the NFL is headquartered in nearby New York;
(2) more than half of the plaintiffs in the California tort actions reside in eastern states,
mostly on the east coast; and (3) five of the seven plaintiffs in the Pennsylvania action
reside on the east coast. NFL further argued that transfer to Pennsylvania would “not
pose an inconvenience to the [underlying] plaintiffs in any meaningful way, as they
reside in 30 different states, with 126 out of the 143 former players currently residing
outside of the state in which they brought their complaint (including 120 out of 136 out-
of-state former players in the California Actions).”
8
NFL corporate offices in New York.” An amended MDL complaint focuses on the claim
that NFL‟s senior management knew the risk of brain injury to players, but failed to
disclose it. Those cases will be returned to their original venues if not settled before trial.
As of November 2012, players had filed more than 174 lawsuits against the NFL
itself, many of which also named NFL Properties as a defendant. Most (154) were filed
in states other than California. More than 3,700 former players and more than 2,000
spouses are plaintiffs in those cases. Approximately 12 percent of the former players
allege California residence; approximately 1.5 percent alleges New York residence.
Most of these cases have been, or will be, consolidated in the MDL in Pennsylvania.
At the time the trial court stayed NFL‟s California action, the MDL proceedings
were in the initial pleading stage, with discovery stayed and motions to dismiss pending
and awaiting oral argument. If the underlying tort litigation is not dismissed on pretrial
motions, the individual lawsuits will be returned for trial to the jurisdictions (including
California) in which they were initially filed.
D. The coverage litigation
The underlying tort claims are being handled at NFL‟s New York headquarters
and a New York broker, Marsh USA, Inc. Correspondence regarding the coverage issues
has been directed, at NFL‟s request, to its vice-president of legal affairs at NFL‟s Park
Avenue headquarters.
On August 13, 2012, Alterra America Insurance Company filed suit against NFL
in the New York State Supreme Court in Manhattan. There Alterra alleges that former
players sued NFL alleging neurological injuries sustained while playing football.
According to Alterra, NFL tendered some of these lawsuits for defense and indemnity
and Alterra declined coverage. Alterra seeks a declaration that it is not obligated to
defend or indemnify NFL.
9
Two days after Alterra filed in New York, NFL instituted this action in Los
Angeles Superior Court against Alterra and 31 other insurance companies. The operative
complaint alleges breach of contract against certain primary insurance carriers and three
declaratory relief claims against all insurers. NFL claims that between 1968 and 2012 the
insurers issued 187 primary and umbrella or excess insurance policies to NFL.
According to NFL, former football players and their spouses filed more than 140 lawsuits
alleging concussions and other football injuries resulting in long-term brain damage.
NFL claims that 12 insurers have breached their duty to defend under 52 primary
policies. As to all 32 insurers, NFL seeks a declaration that the insurers must indemnify
NFL under all policies for any damages they must pay to claimants in the underlying
brain injury suits.
NFL also seeks a declaration regarding the respective rights and duties of NFL and
various unnamed “Doe” insurers under policies issued to Riddell, Inc., which
manufactures football helmets. NFL alleges that the Riddell policies, which are unrelated
to the policies involved in the instant lawsuit, may provide coverage to NFL as additional
insureds. Earlier, Riddell had filed against its own insurers in Los Angeles Superior
Court, regarding those insurers‟ duty to defend and indemnify Riddell in the underlying
brain injury suits.
On August 21, 2012, Discover Property & Casualty Company and five affiliated
companies (collectively, Travelers), all of which are defendants in the present NFL
lawsuit, filed a new action in the New York State Supreme Court in Manhattan.
Travelers seeks declaratory relief as to its duty to defend and indemnify NFL in the brain
injury cases pursuant to policies issued from the 1960‟s to 2012. Travelers also seeks a
declaration that the other NFL insurers are not entitled to contribution from Travelers
with respect to any amounts those insurers pay to defend or indemnify NFL. All parties
in the present NFL action are parties to Travelers‟ New York action. The Travelers case
was consolidated with the Alterra action on September 19, 2012. No insurers involved in
10
the New York actions have challenged personal jurisdiction or claimed the issues are not
justiciable.
On August 22, 2012, Alterra filed an amended complaint in its New York action,
naming as defendants all but two of the insurers who are defendants in NFL‟s California
action. Alterra repeats the allegations from its original complaint and claims that the
insurer defendants issued policies to NFL.
On August 23, 2012, TIG Insurance Company and two affiliates, all of which are
defendants in the NFL‟s California action, filed an answer, counterclaim, cross-claims
and a third party complaint in the Alterra action. TIG asserts cross-claims against NFL
and all the other insurers seeking declaratory relief as to the duties to defend and
indemnify. It also asserts a third party claim for declaratory relief against the two carriers
that Alterra did not include in its amended complaint. As a result, all parties in the NFL‟s
California action are parties in Alterra‟s New York action.
The Chartis Insurers answered in the Alterra and Travelers New York actions on
September 6, 2012, and asserted cross-claims against NFL for declaratory relief. On
September 12, 2012, ACE American Insurance Company and four affiliates (collectively
“ACE”), and Federal Insurance Company and two affiliates (collectively, Chubb),
answered in the Alterra and Travelers actions and asserted cross-claims against NFL.
In the Alterra and Travelers actions NFL filed motions to dismiss on September 12
and 17, 2012. Those motions had not been heard by the time of the California trial court
ruling at issue in this appeal.6
6
We deny NFL‟s motion for judicial notice of the records of later rulings in the
New York actions. Those rulings were not before the trial court when it stayed the
present case and are irrelevant in that the suitability of the New York forum is not at issue
in this appeal. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 444,
fn. 3; Hahn v. Diaz-Barba (2011) 194 Cal. App. 4th 1177, 1193; Moran v. Endres (2006)
135 Cal. App. 4th 952, 954, fn. 2.)
11
E. The related case and forum non conveniens motions
Shortly after filing the instant action, NFL lodged a notice of related case under
California Rules of Court, rule 3.300. NFL asserted this case is related to the Ridell
insurance coverage action, given that both arose out of the underlying players‟ claims.
Insurer defendants immediately filed oppositions. On September 17, 2012, NFL filed a
motion to relate its case to the Riddell action. The following week, the judge to whom
the Riddell action had been assigned heard argument and granted NFL‟s motion. On
October 3, 2012, after Travelers filed a peremptory challenge pursuant to Code of Civil
Procedure section 170.6, both this case and Riddell were reassigned to Judge John
Shepard Wiley.
In September 2012, defendants Chartis, TIG, Travelers, ACE, Chubb and
Fireman‟s Fund filed separate motions to dismiss or stay NFL‟s action on forum non
conveniens grounds. All but one of the other insurer defendants joined in the motions.
NFL filed a consolidated opposition and the insurers filed replies and joinders. On
November 28, 2012, the trial court held its hearing on the motions to dismiss or stay this
action. At the beginning of the hearing the court furnished the parties with a five-page
tentative ruling granting the motions and staying the action. During the hearing, the trial
court heard extensive argument by NFL regarding the insurers‟ motions. Later that day,
the trial court issued a written decision (detailed below) granting the motions and
imposing a stay of this action, pending the outcome of the parallel New York matters.
The trial court set a review hearing in December 2013, and invited the parties to calendar
the matter at any time if necessary.
On December 6, 2012, NFL appealed the trial court‟s orders.
12
F. The trial court‟s ruling in the present case
In pertinent part, the trial court‟s written explanation of its balancing of the
interests for and against retaining the action in California reads as follows.
“[The balance tips against California.] Convenience is a central concern.
(Stangvik v. Shiley, Inc. (1991) 54 Cal. 3d 744, 756-757.) . . . Here, nothing recommends
California. Most witnesses and documents are elsewhere. The NFL agrees, for it has not
attempted any evidentiary showing about anticipated witnesses and where they might
reside. This omission underlines its description of the case in oral argument as
„transitory‟ . . . a case of national range and scope . . . . There really is no dispute about
the facts. The NFL just wants to do this its way, regardless of the irrationality of coming
from New York to Los Angeles, regardless of the cost to California taxpayers and jurors,
and regardless of the budget situation in California. [Citing a November 29, 2012 Los
Angeles Daily Journal Article regarding impending Los Angeles Superior Court budget
cuts expected to total between $56 and $85 million and expected to involve numerous
courthouse closures and staff reductions.] Under Century Indemnity [(1997) 58 Cal. App.
4th 408] . . . , however, the NFL . . . does not have a legal entitlement to a California
forum . . . . [¶] The NFL selected California -- true -- but „that factor is of lesser
significance‟ because the NFL is not a California resident. [Citing Century Indemnity at
p. 412.] [¶] „There are manifest reasons for preferring residents . . . who pay for
maintaining the courts concerned. The injustices and the burdens . . . which can follow
from an unchecked and unregulated importation of transitory causes of action for trial in
this state require that our courts, acting upon the equitable principles, exercise their
discretionary power to decline to proceed in those causes of action which they
conclude . . . may be more appropriately and justly tried elsewhere.‟ [Citing Stangvik,
supra, 54 Cal. 3d at p. 751.] [¶] The NFL‟s choice of California is selective and tactical.
The NFL moved the underlying tort litigation in this very dispute from California to
Pennsylvania. (NFL Opposition 12:16-20; Danias declaration paragraph 13.) This fact
13
makes this case unlike any precedent the NFL cites, for it shows the NFL‟s forum
decision here is not the product of some general and consistent preference for California.
[¶] Balancing private and public convenience is the heart of the forum non conveniens
test . . . . Yet the NFL seeks a privilege in this calculus. It would like its tactical
convenience to count for more than everyone else‟s. . . . The NFL offers no logical
reason for its understandable but self-interested request to have its way. No precedent
supports this selective effort to file a redundant lawsuit in an illogical forum. [¶] The
NFL raises seven other unpersuasive points. [¶] First, the NFL urges that it is not a
corporation but rather an unincorporated association of football clubs. Its form is
inconsequential. Whatever it is, the NFL long has had its headquarters in New York.
New York is the NFL‟s physical center of operations: where it‟s important people go to
work, directing NFL affairs. New York is where these executives make and keep their
important documents. [¶] Second, the NFL lists its past contacts with California. . . .
The question today is not the jurisdictional one, where the extent of past contacts affects
the fairness of summoning a defendant to some remote court. Instead, today‟s question is
about convenience. What is convenient today depends on today‟s conditions. The past is
gone. [¶] Third, the NFL cites Ford Motor Co. v. Insurance Co. of North America
(1995) 35 Cal. App. 4th 604, 607-608, but that case was about three polluted California
sites: one in Milpitas, one in Palo Alto, and one in Newport Beach. By contrast, the NFL
case has no anchors in California land. [¶] Fourth, the NFL cites Morris v. AGFA Corp.
(2006) 144 Cal. App. 4th 1452, 1455, but that court held California was an inconvenient
forum and sent the case elsewhere. This ruling follows that holding. [¶] Fifth, the NFL
cites a pending case in this court about insurance coverage for football head injuries. The
plaintiff in that case is a helmet manufacturer called Riddell. Riddell sued its insurers
about coverage. Although that case is related to this one, it has a different plaintiff:
Riddell. Riddell‟s principal place of business is Van Nuys, California. Riddell‟s
insurance policies are different from the NFL‟s insurance policies. The NFL still is in
New York, however, and most of the witnesses and documents for the NFL case still are
14
not in California. The Riddell case does not make California a convenient location for
the NFL case. [¶] Sixth, the NFL cites previous litigation with TIG Insurance
concerning the duty to defend the NFL against an intellectual property lawsuit by the
Oakland Raiders. This old California suit has no bearing here. [¶] Seventh, the NFL
points to places where teams have played Super Bowls and so forth. These facts are
engaging but not relevant to this insurance coverage dispute. [¶] Apart from the
balancing of private concerns, there is also the matter of public policy and the public
interest. [Citing Stangvik, supra, 54 Cal. 3d at pp. 757-760.] „The public interest factors
include avoidance of overburdening local courts with congested calendars, protecting the
interests of potential jurors so that they are not called upon to decide cases in which the
local community has little concern, and weighing the competing interests of California
and the alternate jurisdiction in the litigation.‟ (Id. page 751.) [¶] The State of
California has no reason to ensure California judges and jurors decide this particular
dispute. [¶] In Century Indemnity, supra . . . , the court noted Hawaii had a public policy
interest in interpreting insurance policies issued in Hawaii to Hawaii residents . . . . The
insurance issues in this case involve no California public policies. As a state, California
is indifferent about which insurers may or may not owe the NFL. These concerns are
exclusively private. This is not a case like Ford Motor Co. v. Insurance Co. of North
America (1995) 35 Cal. App. 4th 604, 614, which implicated California‟s „fundamental
interest in the preservation of the quality of its natural environment and in the
remediation of toxic contamination within its borders.‟ [¶] The moving parties have met
their burden. The motions are granted. This case is stayed in favor of the first-filed case
in New York.”
15
III. LEGAL PRINCIPLES
A. The trial court‟s duties
“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.”
(Code Civ. Proc. §410.30, subd. (a); see In re Marriage of Taschen (2005) 134
Cal. App. 4th 681, 687 (Taschen) [“in California forum non conveniens motions are
governed by statute, not by policies embedded in case law predating the statute‟s
enactment”]; accord Stangvik v. Shiley, supra, 54 Cal. 3d 7at p.749 (Stangvik).)
A trial court considering a forum non conveniens issue engages in a two-step
process, the first of which is to determine whether a suitable alternative forum exists.
(Stangvik, supra, 54 Cal.3d at p. 751; Guimei v. General Electric Co. (2009) 172
Cal. App. 4th 689, 696 (Guimei).) Where there is a suitable alternative forum, the court
proceeds to the next step, consideration of the private interests of the parties and the
public interest in keeping the case in California. (Stangvik, supra, at pp. 751, 754;
Century Indemnity Co. v. Bank of America, supra, 58 Cal.App.4th at p. 412 (Century).)
“„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.‟ (Stangvik, supra, 54 Cal.3d
at p. 751.) The residences of the plaintiff and the defendant are relevant, and a corporate
defendant‟s principal place of business is presumptively a convenient forum. (Id. at pp.
754-755.) If the plaintiff is a California resident, the „plaintiff‟s choice of a forum should
rarely be disturbed unless the balance is strongly in favor of the defendant. [Citations.]‟
(Id. at p. 754; see Bechtel Corp. v. Industrial Indem. Co. (1978) 86 Cal. App. 3d 45, 51-
53.) The public interest factors include avoidance of overburdening California courts,
16
protecting potential jurors who should not be called on to decide cases in which the local
community has little concern, and weighing the competing ties of California and the
alternate jurisdiction to the litigation. (Stangvik, [supra,] at p. 751.)‟” (Animal Film,
LLC v. D.E.J. Productions, Inc. (2011) 193 Cal. App. 4th 466, 473; see also Great
Northern Ry. Co. v. Superior Court (1970) 12 Cal. App. 3d 105, 112-115 (Great Northern)
[listing 25 relevant factors].)
The defendant, as the moving party, bears the burden of proof on a motion based
on forum non conveniens. (Stangvik, supra, 54 Cal.3d at p. 751; Animal Film, LLC v.
D.E.J. Productions, Inc., supra, 193 Cal.App.4th at p. 472.) It is the trial court‟s duty to
weigh and interpret evidence and draw reasonable inferences therefrom. (Guimei, supra,
172 Cal.App.4th at p. 698.)
B. Standard of review on appeal
Had the suitability of an alternate forum been disputed in the present case, the trial
court‟s ruling on that point would have been subject to either a de novo or substantial
evidence review on appeal. (Investors Equity Life Holding Co. v. Schmidt (2011) 195
Cal. App. 4th 1519, 1528 (Investors Equity) [de novo standard]; Guimei, supra, 172
Cal.App.4th at p. 696 [substantial evidence standard].) However, there is no dispute here
that New York is a suitable alternate forum.
The second part of the analysis, the weighing and balancing of private and public
factors, is reviewed pursuant to an abuse of discretion standard; “substantial deference” is
accorded the trial court‟s ruling. (Stangvik, supra, 54 Cal.3d at p. 751.) “We „will only
interfere with a trial court‟s exercise of discretion where [we find] that under all the
evidence, viewed most favorably in support of the trial court‟s action, no judge could
have reasonably reached the challenged result.‟” (Guimei, supra, 172 Cal.App.4th at 696
(internal citations omitted).) “„“[A]s long as there exists „a reasonable or even fairly
debatable justification, under the law, for the action taken, such action will not be . . . set
17
aside.”‟” (Ibid., (citation omitted); see Taschen, supra, 134 Cal.App.4th at p. 691
[“appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason”].)7
The court of appeal “cannot reweigh the evidence or draw contrary inferences.
[Citations.] We presume the trial court found every fact and drew every reasonable
inference necessary to support its determination. [Citation.] We cannot reject evidence
accepted by the trial court as true unless it is physically impossible or its falsity is
obvious without resort to inferences or deduction. [Citation.]” (Guimei, supra, 172
Cal.App.4th at pp. 698-699.)
IV. DISCUSSION
A. Contentions on appeal concerning the burden of proof in the trial court
Although NFL agrees that abuse of discretion is the standard on appellate review
of a trial court‟s weighing and balancing of private and public interests in the forum non
conveniens context, it argues the trial court erred to NFL‟s detriment in several respects
regarding the moving party defendants‟ burden of proof at the trial court level. NFL
contends it is a California resident for purposes of the forum non conveniens analysis,
because, as an unincorporated association of member football clubs, it resides wherever
its members are located. In the alternative, NFL argues that, regardless of residency, the
trial court erred in failing to strongly presume in favor of plaintiff‟s choice of forum.
7
Whether the trial court‟s discretion widens when it imposes a stay rather than a
dismissal is at issue in this appeal, and will be discussed below. We conclude that it does
widen, relying in part on Century, supra, 58 Cal.App.4th at page 411. (See also
Archibald v. Cinerama Hotels (1976) 15 Cal. 3d 853, 860 (Archibald) [noting that in
considering a stay the trial court can take into account any consideration which bears on
the relative suitability or convenience of the two forums].)
18
NFL further faults the trial court for not requiring defendants prove California is a
seriously inconvenient forum. Finally, NFL contends the court below erroneously gave
dispositive deference to defendant insurers‟ New York lawsuits and erroneously shifted
the burden of proof to plaintiffs.
B. NFL is not a California resident for purposes of a forum non conveniens analysis
In the introductory portion of its ruling, the trial court states: “The National
Football League is headquartered in New York. It has been there 50 years or more.”
Later in the decision, the court states: “The NFL selected California -- true -- but „that
factor is of lesser significance‟ because the NFL is not a California resident. (Century
Indemnity Co. v. Bank of America, supra, 58 Cal. App. 4th 408, 412.)” Further along in its
decision, the court added, “The NFL raises . . . other unpersuasive points. First, the NFL
urges that it is not a corporation but rather an unincorporated association of football
clubs. The form is inconsequential. Whatever it is, the NFL long has had its
headquarters in New York. New York is the NFL‟s physical center of operations: where
its important people go to work, directing NFL affairs. New York is where these
executives make and keep their important documents. [¶] Second, the NFL lists its past
contacts with California. These contacts, however, are in the past. The question today is
not the jurisdictional one, where the extent of past contacts affects the fairness of
summoning a defendant to some remote court. Instead, today‟s question is about
convenience. What is convenient today depends on today‟s conditions. The past is
gone.”
On appeal, NFL again asserts the argument reflected in the final quotation above,
i.e., as an unincorporated association it legally resides wherever its member football clubs
are located. (See American Needle Inc. v. NFL (2010) 560 U.S. 183 [130 S. Ct. 2201,
2209-2214] [in antitrust context, NFL and its teams are best understood as a joint venture
rather than a single entity].) NFL relies on authority in a variety of procedural and
19
jurisdictional contexts, such as federal diversity and the proper venue for suing an
unincorporated association, which it argues should be given weight in the forum non
convenience analysis. (Carden v. Arkoma Assocs. (1990) 494 U.S. 185, 195-196 [federal
diversity jurisdiction as to an unincorporated association depends on citizenship of its
members]; Westinghouse Electric Corp. v. Superior Court (1976) 17 Cal. 3d 259, 276 [in
context of defense motion to change venue within California where plaintiff is a multi-
county public agency, holds unincorporated moving party resides in county where it does
substantial business]; Metropolitan Transit System v. Superior Court (2007) 153
Cal. App. 4th 293, 305 [dealing with cross-defendant‟s right to change venue within
California when cross-complainant is local public agency; dictum indicates an
unincorporated entity resides where its members reside for purposes of such motions];
Mosby v. Superior Court (1974) 43 Cal. App. 3d 219, 229 [dealing with proper county
within California for suit against individuals and their wholly owned unincorporated
business].) Given that approach, argues NFL, it would be a California resident entitled to
the preference afforded a resident plaintiff‟s choice to file in its home state. (Stangvik,
supra, 54 Cal.3d at pp. 754-755.)
We view the cited cases as having little bearing on residency in the present
context. Venue and jurisdiction involve the power of the court to hear and determine a
cause of action. The forum non conveniens doctrine assumes such power and focuses
instead on equitable reasons for a court to decline to exercise it. (See Stangvik, supra, 54
Cal.3d at p. 751; accord Gulf Oil Corp. v. Gilbert (1947) 330 U.S. 501, 507 (Gilbert)
[“The principle of forum non conveniens is simply that a court may resist imposition
upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue
statute. . . . A plaintiff sometimes is under temptation to resort to a strategy of forcing the
trial at a most inconvenient place for an adversary, even at some inconvenience to
himself.”].)
No California case has decided the issue of residency of an unincorporated
association in the inconvenient forum context. We hold that a multi-state unincorporated
20
association is not necessarily entitled to a strong presumption of the convenience of a
California forum simply because some of its members reside here. Rather, in its forum
non conveniens analysis, a trial court must evaluate the nature of the plaintiff‟s
organization and activities, including any principal place of business aside from those of
its members, as part of the overall duty of determining the relationship of the case and
parties to the forum.
Thus, a business primarily based outside of California, whether or not
incorporated, may or may not be entitled to some preference based on its extensive
contacts in this state. (Compare Ford Motor Co. v. Insurance Co. of North America
(1995) 35 Cal. App. 4th 604, 612 (Ford) [Ford Motor Company entitled to deference in
favor of California forum where it was a California “taxpayer, employer and property
owner”] with Appalachian Ins. Company v. Superior Court (1984) 162 Cal. App. 3d 427,
436 [forum non conveniens dismissal upheld despite the fact that both the out-of-state
corporate plaintiff and the out-of-state corporate defendant maintained substantial
business operations in California].) Further, a business domiciled in multiple states is not
entitled to the same preference as a plaintiff that resides only in California. (Gould, Inc.
v. Health Sciences, Inc. (1976) 54 Cal. App. 3d 687, 693 (Gould) [large corporation with
principal place of business in Illinois and operations in many states is not entitled to same
preference as a plaintiff who is solely located in California].) As the cases summarized in
this opinion illustrate, inconvenient forum issues arise in a wide variety of factual
situations. A case-by-case examination of the parties, their dispute and the relationship
of each to the state of California is the heart of the required analysis. (Stangvik, supra, 54
Cal.3d at p. 754; Gould, supra, at p. 692.)8
8
We choose not to join the parties‟ debate about whether an unincorporated
association is a “jural entity.” The concept may have relevance in other contexts but we
do not find it helpful or persuasive here, where the unincorporated NFL plaintiff has
taken advantage of the California statutory power to sue (Code Civ. Proc. § 369.5), then
seeks shelter in an argument that it is not a legal entity for forum non conveniens
21
Here the trial court, well aware of the primary place of business of the 49ers,
Raiders and Chargers, properly exercised its discretion in assessing the nature of the NFL
plaintiffs‟ businesses as they relate to California as a forum. The court‟s broad statement
that NFL is not a California resident must be considered in light of its conclusion that
technicalities regarding the form of plaintiffs‟ association are outweighed by the
undisputed fact of plaintiffs‟ decades-long existence as New York entities9 separate and
apart from the member teams. (See American Needle v. NFL, supra, 130 S.Ct. at pp.
2212-2213.) The record also shows that both NFL plaintiffs have their headquarters in
New York, run their operations from there, brokered the majority of their insurance
policies from there, have their important documents and key executives there and have
personnel involved in this coverage litigation employed there. Further, the trial court
would have been aware that the players making claims against the NFL entities allege in
the federal MDL proceeding in Pennsylvania that “all NFL policies and decisions
relevant to the conduct alleged herein occurred primarily in the NFL corporate offices in
New York.”
The trial court properly recognized that NFL operates in New York independently
of its teams, and properly considered the effect of that practical reality in its balancing of
the private and public interest factors. Those factors focus on practical concerns such as
access to witnesses and evidence, the costs of litigation, and the interests of California
and its citizens in deciding the dispute. When weighing such concerns, the trial court was
legally correct and well within the bounds of reason in denying NFL the status of a full-
fledged California resident.
purposes. (Compare People ex rel. Totten v. Colonia Chiques (2007) 156 Cal. App. 4th
31, 40 [a street gang is a jural entity for purposes of an injunction].)
9
Plaintiff NFL Properties is a Delaware corporation headquartered in New York
City. It was not registered to do business in California at the time this lawsuit was filed.
22
C. Neither the “strong presumption” nor “seriously inconvenient” standard
was applicable in the present case
NFL asserts error by the trial court in failing to recognize that all plaintiffs are
entitled to a strong presumption in favor of their choice of forum and in failing to require
defendant insurers to demonstrate that California is a seriously inconvenient forum. The
trial court rejected these arguments, noting that such standards are not imposed in the
Stangvik opinion. The court also noted that these higher burdens would be
counterproductive to the concern raised in Stangvik regarding the potential effect on the
California court system from “an unchecked and unregulated importation of transitory
causes.” The trial court also relied heavily on Century, supra, 58 Cal.App.4th at page
412, which rejected both the strong presumption and serious inconvenience standards
where the trial court stays rather than dismisses a California action filed by a nonresident.
The Century court specifically distinguished Ford, supra, 35 Cal. App. 4th 604, on which
NFL relies, as a case involving a dismissal rather than a stay.10
On appeal, the insurers rely heavily on the stay/dismissal distinction in defending
the trial court‟s burden of proof calculus. Defendants also argue that Ford is an aberrant
decision which the trial court properly ignored. NFL counters with the contention that
Century was wrongly decided as to the burden of proof issue. We hold that the trial court
committed no error.
1. Seminal forum non conveniens case law
The forum non conveniens doctrine developed as a dismissal remedy for cases
where some or all parties were nonresidents, and plaintiff‟s choice of an inconvenient
10
The Century court did acknowledge that, even where a stay rather than a dismissal
is involved, a California resident plaintiff is entitled to a “strong preference” as to its
choice to file in its home state. (Century, supra, 58 Cal.App.4th at p. 412.)
23
venue unfairly burdened a defendant or the court with the task of litigating out-of-state
events. (See Price v. Atchison, Topeka & Santa Fe Ry. Co. (1954) 42 Ca1.2d 577, 580
(Price) [New Mexico resident sued a Kansas corporation in Los Angeles Superior Court
against regarding injuries sustained in railroad accidents that occurred in New Mexico].)
Even in such cases it was held that California “has no policy . . . of discrimination
against . . . noncitizens of California . . . in determining when a nonresident of this state
will be given access to state courts to litigate a cause of action which arose elsewhere,”
(id. at p. 583) and that, “unless the balance is strongly in favor of the defendant, the
plaintiff‟s choice of forum should rarely be disturbed.” (Id. at p. 585.) California courts
were guided as to the proper burden of proof and analysis by earlier United States
Supreme Court decisions. (See e.g. Gilbert, supra, 330 U.S. 501, 508 [“unless the
balance is strongly in favor of the defendant, the plaintiff‟s choice of forum should rarely
be disturbed”]; Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 249, fn. 15 (Piper)
[doctrine applies when plaintiff chooses forum “not because it is convenient, but solely in
order to harass the defendant or take advantage of favorable law”].)
A corollary to the early rule banned dismissals, except under extraordinary
circumstances, in actions filed by California residents, because such plaintiffs are entitled
as a matter of overriding state policy to redress their grievances in their own court
system. (Thomson v. Continental Ins. Co. (1967) 66 Ca1.2d 738, 742; Archibald, supra,
15 Cal. 3d at pp. 858-859; accord Goodwine v. Superior Court (1965) 63 Ca1.2d 481,
485-486 [“[a] determination that a plaintiff is domiciled [in California] would ordinarily
preclude granting the defendant‟ s motion for dismissal on the grounds of forum non
conveniens”].)
2. Codification in California
When the inconvenient forum doctrine was codified in 1969, the California
Legislature recognized that imposing a stay is a viable alternative to dismissal in
24
appropriate cases, even in cases filed by California residents. Code of Civil Procedure
section 410.30, subdivision (a) provides: “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 its comment to the newly enacted statute, the
California Judicial Council explained as follows: “Section 410.30 gives statutory
recognition to the doctrine of forum non conveniens, which authorizes a court to decline
to exercise its jurisdiction in appropriate instances on the ground that the plaintiff has
unfairly or unreasonably invoked the jurisdiction of an inconvenient forum.” (West‟s
Ann. Code Civ. Proc. (2004 ed.) vol. 14A, §410.30, p. 486.) The comment further states,
“Under the doctrine of inconvenient forum, a court, even though it has jurisdiction, will
not entertain the suit if it believes that the forum of filing is a seriously inconvenient
forum for the trial of the action.” (Ibid.) The comment goes on to cite the Restatement
(Second), Conflict of Laws (1971), for the proposition that the “two most important”
factors a court should consider are: “(l) that since it is for the plaintiff to choose the place
of suit, his choice of a forum should not be disturbed except for weighty reasons, and (2)
that the action will not be dismissed unless a suitable alternative forum is available to the
plaintiff.” (Id. at p. 488; other citations omitted.)11
It cannot be ignored that the California inconvenient forum doctrine is now
embedded in statute. (Taschen, supra, 134 Cal.App.4th at p. 687.) One of the purposes
of the enactment of section 410.30 was to give “less weight to the plaintiff‟s domicile or
residence.” (Delfosse v. C.A.C.I., Inc.-Federal (1990) 218 Ca1.App.3d 683, 688, fn 4
(Delfosse).) Yet, our appellate courts have given significant weight to the Judicial
Council comment and the Restatement in applying the doctrine. (See Stangvik, supra, 54
Cal. 3d at pp. 752-753; Hahn v. Diaz-Barba, supra, 194 Ca1.App.4th at p. 1186, fn. 5;
11
The Restatement Second at section 84, sets forth the forum non conveniens
doctrine as follows: “A state will not exercise jurisdiction if it is a seriously inconvenient
forum for the trial of the action provided that a more appropriate forum is available to the
plaintiff.” (Rest.2d Conf. of Laws, §84).
25
Delfosse, supra, 218 Ca1.App.3d at p. 689.) It follows that NFL correctly points out that
the strong presumption in favor of plaintiff‟s choice of forum and the seriously
inconvenient burden of proof are longstanding principles within the forum conveniens
doctrine. We turn to post-codification cases to determine whether those standards were
properly distinguished by the trial court in the present case.
3. California does not recognize a strong presumption in favor of a nonresident
plaintiff‟s choice of forum
The leading California Supreme Court case in the era subsequent to the enactment
of section 410.30 is Stangvik, supra, 54 Cal.3d at page 744. Prior to Stangvik, a number
of court of appeal cases involving California resident plaintiffs took note of the strong
presumption in favor of the correctness of plaintiff‟s choice of forum. (See Bechtel Corp.
v. Industrial Indem. Co., supra, 86 Cal.App.3d at pp. 50-51 [stay order reversed in a case
where a California engineering firm sued the carrier of its employee fidelity bonds to
recover for damages the firm would be paying for its employees‟ misconduct in the
course of a Maryland project; the court of appeal cited Gilbert, Price and other cases for
the proposition that “„unless the balance is strongly in favor of the defendant, the
plaintiff‟s choice of forum should rarely be disturbed‟”]; Dendy v. MGM Grand Hotels,
Inc. (1982) 137 Cal. App. 3d 457, 460 [stay upheld where individual California residents
sued over injuries sustained in a major Las Vegas hotel fire; despite ruling that California
was an inconvenient forum, the court of appeal noted, “[T]his doctrine should be applied
sparingly as it is recognized that a plaintiff‟s choice of forum should be respected unless
equity weighs strongly in favor of the defendant. [Citations.]”.]) At least one pre-
Stangvik case involving a nonresident plaintiff also made reference to something akin to a
strong presumption. (See Brown v. Clorox Co. (1976) 56 Cal. App. 3d 306, 311 [in the
process of reversing a stay order in a case involving an out-of-state plaintiff suing a
California corporation for not protecting children in its product manufacturing process,
26
the court of appeal stated, “It is recognized that a plaintiff‟s choice of forum should not
be disturbed except for weighty reasons . . . .”].)
Defendants contend a separate branch of the inconvenient forum doctrine traces to
the post-codification California Supreme Court decision in Archibald, supra, 15 Cal. 3d
853. There the court focused on a trial court‟s power to stay, rather than dismiss,
California proceedings filed by California residents. (Archibald, supra, at pp. 857-860.)
In evaluating a stay request, the court in Archibald said, “[t]he plaintiff‟s residence is but
one of many factors which the court may consider. The court can also take into account
the amenability of the defendants to personal jurisdiction, the convenience of witnesses,
the expense of trial, the choice of law, and indeed any consideration which legitimately
bears upon the relative suitability or convenience of the alternative forums. [Citing
Gilbert, Thomson, Goodwine, and Great Northern Ry. Co. v. Superior Court, supra, 12
Cal.App.3d [at p.] 105]. In short, the trial court retains a flexible power to consider and
weigh all factors relevant to determining which forum is the more convenient, and to stay
actions by true California residents when it finds that the foreign forum is preferable.”
(Id. at p. 860.)
In pre-Stangvik cases courts of appeal cited Archibald for the proposition that less
deference is to be afforded nonresident plaintiffs. In Corrigan v. Bjork Shiley Corp.
(1986) 182 Cal. App. 3d 166, 171 (Corrigan), the court of appeal reversed the stay of a
heart-valve product liability case filed against a California corporation by residents of
Australia. The court stated, “Although the rule of substantial deference is not eliminated
when plaintiff is foreign (either noncitizen or nonresident), the deference accorded his
choice is less than that accorded the choice of a California resident. [Quoting and citing
Archibald.]” (Id. at p. 176.) The court summed up by stating, Therefore, . . . although
the Australian plaintiffs‟ choice of a California forum is entitled to some deference, this
consideration cannot dominate our decision.” (Ibid.)
Corrigan was followed in a case involving an American corporation, Celotex
Corp. v. American Ins. Co. (1987) 199 Cal. App. 3d 678. There the court of appeal
27
affirmed a stay in an asbestos coverage dispute between plaintiff, a Delaware corporation
with its principal place of business in Florida, and two insurance carriers who principally
did business in California. Related actions were pending in federal district courts in Ohio
and Florida. (Id. at pp. 680-681.) After noting the importance ascribed to plaintiff‟s
choice of forum in the above-mentioned Judicial Council comment to section 410.30,
which the court characterized as “substantial deference,” the court concluded “the
deference accorded a nonresident plaintiff is less than that accorded a California
resident,” citing Corrigan, supra, 182 Cal.App.3d at page 683.
These dueling lines of cases set the stage for the California Supreme Court‟s 1991
decision in Stangvik, supra, 54 Cal. 3d 744. We look to it for guidance even though it
involved noncitizen plaintiffs, as distinct from the nonresident American plaintiffs in the
instant case.
We have quoted above the Stangvik court‟s holding regarding the essential
balancing process, which the court derived from the United States Supreme Court
decisions in Gilbert and Piper. (See Stangvik, supra, 54 Ca.3d at p. 751.) For purposes
of the present discussion, it is noteworthy that the court in Stangvik was reviewing a trial
court stay order in a wrongful death case involving Swedish and Norwegian plaintiffs
suing the California designer and manufacturer (Shiley) of allegedly defective heart
valves which had been purchased and implanted in Sweden and Norway with fatal
results. (Id. at pp. 749-750.) The court noted that at the time of the trial court‟s ruling
108 similar cases against Shiley had been filed in California by foreign plaintiffs, and that
the number had increased substantially by the time Supreme Court briefs were filed.
(Id.at p. 758.) The court affirmed the stay after a detailed review of the public and
private interests involved. (Id. at pp. 761-764.)
Citing its earlier opinion in Price, the court in Stangvik noted the basis of the
inconvenient forum doctrine is the need to give preference to California residents and
guard against the “„“unchecked and unregulated importation of transitory causes of action
for trial in this state.”‟” (Stangvik, supra, 54 Ca.3d at p. 751.) The court affirmed that
28
the moving party defendant bears the burden on the motion and that the trial court‟s
discretionary ruling is accorded “substantial deference” on appeal. (Ibid.) Again citing
Gilbert and Piper, the court in Stangvik emphasized that no single factor controls the
analysis; it added that although there is ordinarily a “strong presumption” in favor of a
plaintiff‟s choice of forum, “less deference” is given to foreign plaintiffs. (Id. at p. 753.)
The court reiterated that in the case before it the Scandinavian plaintiffs‟ choice to sue in
California “is not a substantial factor in favor of retaining jurisdiction here.” (Id. at p.
755, fn. omitted.) The court also stated a defendant’s residence is a factor to be
considered in the convenience balance, and that a corporate defendant‟s place of
incorporation and principal place of business is “presumptively a convenient forum,”
though not conclusively so. (Id. at p. 755.) In this regard the court added that a
defendant‟s “cumulative connection with California is an appropriate matter for
consideration in deciding a forum non conveniens motion,” along with other matters
bearing on the issue of undue burden on the California court system. (Id. at pp. 760-761.)
As noted the Stangvik opinion states quite clearly that a plaintiff from a foreign
country is not entitled to a strong presumption of the correctness of its choice of forum.
As the present parties point out, the opinion contains dictum to the effect that the strong
presumption should be limited to California residents, but expressly declines to reach the
issue. (Stangvik, supra, 54 Ca.3d at p. 755, fn. 7.) Thus, the issue of whether a plaintiff
who is a nonresident citizen of the United States is entitled to a “strong presumption” or
“substantial deference” remained open for the competing decisions relied on by the
parties in the present case.
As mentioned, the NFL plaintiffs rely on the Ford case, decided by the court of
appeal four years after Stangvik. In 1992, Ford Motor Company (Ford) filed a coverage
action related to three polluted industrial sites in California. One site had been an
assembly plant operated by plaintiff Ford from 1955 to 1983. The other two sites had
been operated by a subsidiary, Ford Aerospace Corporation, until 1988 and 1990,
respectively. In 1990 Ford sold the subsidiary, but retained an interest in one of the
29
polluted properties. (Ford, supra, 35 Cal.App.4th at pp. 607-608.) The defendants were
various insurance carriers with whom Ford, through its Michigan headquarters, had
contracted for coverage for its properties and operations in California. (Id. at p. 608.)
None of the defendants was either incorporated or headquartered in California or the
potential alternate venue, Michigan. Ford‟s principal place of business was in Michigan,
but it was not incorporated there or in California. (Id. at p. 609.) The California trial
court dismissed Ford‟s action on forum non conveniens grounds. (Id. at pp. 609-610.)
The court of appeal reversed, in light of a “wealth of factors favoring California as a
forum” (id. at p. 618), including the fact that plaintiff Ford was a “California taxpayer,
employer and property owner” whose operations led to pollution at various sites in
California which this state had a significant interest in remediating. (Id. at p. 612.) As to
the applicable legal standard, the court of appeal remarked that “great weight” should be
afforded to even a nonresident plaintiff‟s choice of forum. (Id. at p. 610.) The court also
referred to the standard as a “strong presumption.” (Id. at p. 611.) For these
propositions, the Ford court cited to the aforementioned U.S. Supreme Court cases,
Gilbert and Piper, as well as the California Supreme court‟s Stangvik and Price
decisions. (Ibid.)12
Just two years after Ford, a different court of appeal district decided the case
relied on by the instant trial court and defendants, Century, supra, 58 Cal. App. 4th 408.
Century involved two insurer plaintiffs, one a California resident, the other incorporated
in Pennsylvania. A coverage dispute developed between plaintiffs and their insured, an
Oregon bank. (Century, supra, at pp. 410-412.) The policies at issue had been sold to
the bank in Hawaii, where the allegedly covered event took place. Thirteen days after the
12
As noted above, Ford also cites to Northrup Corp. v. American Motorists Ins. Co.
(1990) 220 Cal. App. 3d 1553 (Northrup) a pre-Stangvik court of appeal decision
involving a resident California corporation as plaintiff. Ford’s reliance on Northrup is
discussed further below, in connection with the issue of whether the moving party‟s
burden includes a showing that the California forum is “seriously inconvenient.” As to
the issue under discussion here, however, Northrup is not helpful to NFL because, unlike
the plaintiff in Northrup, NFL does not reside in California.
30
bank sued for declaratory relief in Hawaii, the carriers filed a similar action in California.
The bank‟s dismissal motion was denied by the California trial court; instead, the court
stayed the action and the carriers appealed. (Id. at pp. 410-411.) In setting the legal
ground rules, the court of appeal acknowledged that the resident insurer plaintiff was
entitled to a strong “preference” as to its choice of forum; as to the nonresident, “that
factor is of lesser significance.” (Id. at p. 412.) Beyond that, the court in Century took its
lead from California Supreme Court precedent, noting, for instance, that discretion to stay
is “considerably wider” than to dismiss, citing Thomson v. Continental Ins. Co.(1967) 66
Cal. 2d 738, 746, fn. 4. (Century, supra, at p. 411.) The Century decision also cites
Archibald, supra, 15 Cal.3d at page 860, for the proposition that “in considering a stay
the trial court can take into account any consideration which bears on the relative
suitability or convenience of the two forums.” (Century, supra, at p. 412.) For guidance
concerning the actual factors a court must consider, the court in Century cited and
followed Stangvik. (Id. at p. 412.)
Like NFL in the present case, the insurer plaintiffs in Century cited the “strong
presumption” and “seriously inconvenient” language in Ford, supra, as defining the
moving party‟s burden of proof. (Id. at p. 412.) The court in Century declined to follow
Ford because Ford involved a dismissal rather than a stay. (Ibid.) The court again
quoted the Supreme Court‟s Archibald decision, “„[i]n considering whether to stay an
action, in contrast to dismissing it, the plaintiff‟s residence is but one of many factors
which the court may consider. [Citation.]”‟ (Century, supra, 58 Cal.App. 4th at p. 413.)
The court then completed its analysis of the Stangvik factors and, finding no abuse of
discretion, upheld the trial court‟s stay order as to both the resident and nonresident
plaintiffs. (Id. at pp. 413-414.)
The results in Ford and Century are understandable given the facts of each case,
the procedural posture on appeal, and the applicable abuse of discretion standard. In
Ford, a trial court abused its discretion when it dismissed a coverage case filed in
California by a nonresident corporate insured that was a California landowner and
31
taxpayer, where the underlying event was pollution of California land by the plaintiff, the
plaintiff was the only party connected to the potential alternate forum (Michigan), and
none of the parties formally resided in California. In Century, a coverage action brought
by both resident and nonresident insurers against a nonresident corporate defendant, was
properly stayed in favor of a first-filed action in the venue where the allegedly covered
event took place (Hawaii). As to the legal semantics, however, the two cases cannot be
reconciled. Ford, involving a nonresident plaintiff, states that even nonresidents are
entitled to a “strong presumption of appropriateness” as to their choice of forum. (Ford,
supra, 35 Cal.App.4th at pp. 611.) Century expressly rejects the Ford standard where a
stay is involved, and holds that a nonresident plaintiff‟s choice of forum is of “lesser
significance.” (Century, supra, 58 Cal.App.4th at p. 412; accord Boaz v. Boyle & Co.
(1995) 40 Cal. App. 4th 700, 713 [in upholding an order dismissing a defective heart-
valve case filed in California by nonresident plaintiffs who asserted their choice of forum
was entitled to substantial weight, the court stated, “That factor derives most of its
meaning from cases in which the plaintiff is a resident of the forum state, and in a
position to claim its protection.”; Campbell v. Parker-Hannifin Corp. (1999) 69
Cal. App. 4th 1534, 1543 (Campbell) [statements in Ford and Hansen v. Owens-Corning
Fiberglas Corp. (1996) 51 Cal. App. 4th 753 (Hansen) that nonresident plaintiff‟s choice
of forum is entitled to great weight “are contrary to the express language of our Supreme
Court in Stangvik . . .”].) A further significant conflict between the two cases is that Ford
sets up its higher standards as part of the moving party‟s burden of proof. (Ford, supra,
at p. 611 [“Unless defendants met their burden, the trial court necessarily abused its
discretion.”].) As Century pointed out, such an overlay runs counter to the California
Supreme Court‟s instruction that, where only a stay is imposed, all factors including
residence are weighed and balanced by the trial court, subject only to abuse of discretion
review. (Century, supra, at p. 413.)
We thus conclude from the teachings of Archibald and Stangvik, as interpreted by
the most well-reasoned decisions of our court of appeal colleagues, that a resident of one
32
of our sister states who files suit in California is entitled to due deference under the
circumstances presented, not a strong presumption, in favor of its choice of forum. That
deference is to be weighed and balanced by the trial court along with all the other
pertinent factors, including the defendant‟s residence or principal place of business, and
has no direct bearing on the moving defendant‟s burden of proof. We therefore disagree
with the contrary language in cases such as Ford, which assert that all U.S. citizen
plaintiffs‟ choices of forum are entitled to great weight. Consequently we reject NFL‟s
contention that the trial court erred in failing to strongly presume in favor of NFL‟s
choice of a California forum. Further, the trial court properly considered NFL‟s contacts
with California as one of the Stangvik factors, rather than an overarching presumption
affecting the burden of proof.
4. A party asserting forum non conveniens as grounds for a stay need not demonstrate
that California is a seriously inconvenient forum
NFL‟s contention that the moving party‟s burden of proof in a forum non
conveniens motion includes proving California is a “seriously inconvenient” forum also
relies heavily on the Ford case, which we have discussed above. To review, in Ford the
court of appeal overturned a trial court dismissal of a coverage action filed by a
nonresident corporate plaintiff where the underlying issue was liability for cleaning up
polluted California properties where plaintiff and its subsidiary had operated for lengthy
periods in the recent past. The defendants were various insurance carriers, also not
California residents. (Ford, supra, 35 Cal.App.4th at pp. 607-610.) The court of appeal
reversed, in light of a “wealth of factors favoring California as a forum” (id. at p. 618),
including the fact that plaintiff Ford was a California taxpayer, employer and property
owner, and the polluted properties were in California. (Id. at pp. 612-613.) In imposing
the questionable “strong presumption” standard discussed above, the court summarized
the moving party‟s burden of proof in the following language: “The analysis . . . must
33
start from the premise that defendants bore the burden of producing sufficient evidence to
overcome the strong presumption of appropriateness attending plaintiff‟s choice of
forum. . . . [T]he inquiry is not whether Michigan provides a better forum than does
California, but whether California is a seriously inconvenient forum. (Northrup Corp. v.
American Motorists Ins. Co., supra, 220 Cal.App.3d at p. 1561.)” (Ford, supra, at p.
611.)
As the passage just quoted reveals, the Ford court cited only page 1561 of the
Northrup opinion for the proposition that the “seriously inconvenient” burden arises out
of the “strong presumption of appropriateness attending plaintiff‟s choice of forum.”
Northrup, decided a year before Stangvik, involved a major California corporation
seeking declaratory relief as to its primary liability carrier‟s duty to cover a hazardous
chemical spill which had taken place in Massachusetts. (Northrup, supra, 220
Cal.App.3d at p. 1557.) Not surprisingly, the court of appeal reversed the trial court‟s
order dismissing the California plaintiff‟s California action. (Ibid.) However, one
searches the Northrup opinion in vain for the words “seriously inconvenient.” The court
does engage in a lengthy discussion of whether the enactment of section 410.30, and a
later amendment, changed the principle that a California resident‟s choice of a California
forum is entitled to a strong presumption of correctness. (Id. at pp. 1559-1562.) But
nowhere does the Northrup court make the leap from that maxim to the conclusion that a
moving party must show the “serious inconvenience” of litigating in California.
In any event, defendants correctly assert that Ford and Northrup can be
distinguished from the present case as to the remedy imposed by the trial court. Here the
court imposed a stay, retaining jurisdiction over the case should the New York
proceeding fail to dispose of the controversy. In Ford, Northrup and a number of other
cases imposing the “serious inconvenience” or a similar burden of proof, the trial court
dismissed the in-state action. (See, e.g., Gilbert, supra, 330 U.S. at p. 502; Price, supra,
42 Cal.2d at p. 579.)
34
However, NFL points out that at least two recent cases involving trial court stay
orders have cited to Ford in support of a “seriously inconvenient” burden. Taschen,
supra, 134 Cal. App. 4th 681, was a German couple‟s marital dissolution action where the
value of a large European corporation was at issue. The litigants lived part-time in
California and part-time in Germany. The court of appeal cited only Ford for the
proposition that the “moving party bears the burden of proving that „California is a
seriously inconvenient forum.‟” (Id. at p. 691.) The court concluded that standard had
been met, and upheld the stay order. (Ibid.)
Most recently, the court of appeal upheld a trial court‟s stay order in a case filed
in California by Texas residents, alleging injury by exposure to toxic chemicals in the
workplace for six years in California, followed by nearly 20 years of exposure in Texas.
Twenty-one corporate defendants were sued, only two being California corporations.
Citing only Ford, the court stated, “The ultimate question is whether the balancing of the
Stangvik factors shows that California is a seriously inconvenient forum. [Citation.] The
defendant, as moving party, bears the burden of proof.” (Morris v. AGFA Corp. (2006)
144 Cal. App. 4th 1452, 1464 (Morris).) When discussing the balancing of factors, the
court noted that even nonresident plaintiffs‟ forum choices are entitled to “great weight,”
although “a plaintiff‟s choice of forum can be disturbed if the balance is strongly in favor
of the defendant.” (Id. at p. 1465.) For the latter principles, the Morris court cited Ford,
supra, 35 Cal. App. 4th and Hansen, supra, 51 Cal.App.4th at p.760.13
13
The parties quarrel over whether the Hansen court‟s reference to the “seriously
inconvenient” burden was an endorsement, or a mere recitation of the appellant‟s
argument. We feel the pain of any litigant or trial court tasked with distilling and
precisely articulating the burden of proof issue under discussion here. In any event, we
note that Hansen was an asbestos class action lawsuit filed against 200 entities in
California by a Montana decedent‟s family members, only one of whom was a California
resident. The alleged injuries and interactions between the parties occurred in Montana
and other states, not California. The trial court order staying the California action was
affirmed on appeal. The court concluded the “strong presumption” (citing Ford, supra)
in favor of plaintiffs‟ choice of forum had been overcome because the balance of interests
strongly favored a Montana venue. (Hansen, supra, 51 Cal.App.4th at p. 760.)
35
We note the conspicuous absence of a line of California cases culminating in the
“serious inconvenience” standard pronounced by the court in Ford. Although the
verbiage appears in the comment generated by the Judicial Council when section 410.30
was enacted, it has not appeared in a California Supreme Court opinion. Both Ford and
Northrop reversed trial court dismissal orders which were adverse to long-time California
corporate plaintiffs seeking insurance coverage determinations. By contrast, Taschen,
Morris and Hansen, the three “Ford progeny” cases summarized above, involved stay
orders rather than dismissals. However, all three of those cases involved plaintiffs with
tenuous connections to California and in each case the court of appeal had no trouble
upholding the trial court‟s stay order without needing to closely examine the genesis or
validity of Ford’s articulation of the burden of proof.
We conclude 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. Ford was not such a case, although the court there
understandably gave weight to the plaintiff‟s past and present contacts with California,
and the fact the underlying dispute revolved around the need to clean up polluted
California land, one parcel of which was still owned by plaintiff Ford Motor Company.
As we have noted, the present case does not involve a California-resident plaintiff, and
there is no California land involved in the underlying dispute.14 Here the trial court
issued only a stay order, and plaintiffs are not California residents. Accordingly, the trial
14
In the absence of authority from our Supreme Court we question whether the
“serious inconvenience” terminology properly describes a moving party‟s burden of
proof, even for dismissal motions against resident plaintiffs. The tenor of the Archibald
and Stangvik opinions and cases closely following them suggest to us that all relevant
circumstances bearing on the forum non conveniens calculus, including residence of the
parties, should simply be considered by the trial court as part of the weighing and
balancing process. (See, e.g., Hansen, supra, 51 Cal.App. 4th at p. 760, citing Archibald
for the proposition that, “a plaintiff‟s residence is but one of many factors the court may
consider.”)
36
court properly ruled that Ford and its progeny were not controlling, and properly turned
for guidance to more closely analogous cases, such as Century, supra, 58 Cal. App. 4th
408, discussed on a related point earlier in this opinion.
Century involved a coverage dispute between a bank located principally in Oregon
and its two carriers; one insurer was a California resident, the other was incorporated in
Pennsylvania. The policies at issue had been sold to the bank in Hawaii, where the
allegedly covered event took place. Thirteen days after the bank sued for declaratory
relief in Hawaii, the carrier filed a similar action in California. The bank‟s dismissal
motion was denied by the California trial court; instead, the court stayed the action and
the carriers appealed. (Century, supra, 58 Cal.App.4th at pp. 410-411.) In setting the
legal ground rules, the court in Century took its lead from California Supreme Court
precedent, noting, for instance, that the high court had indicated discretion to stay is
“considerably wider” than to dismiss, citing Thomson v. Continental Ins. Co.(1967) 66
Cal. 2d 738, 746, footnote 4. (Century, supra, at p. 411; accord Investors Equity, supra,
195 Cal.App.4th at p. 1534 [citing Century for the proposition that discretion to stay is
wider than to dismiss].) The court in Century also cited Archibald, supra, 15 Cal.3d at p.
860, for the proposition that “in considering a stay the trial court can take into account
any consideration which bears on the relative suitability or convenience of the two
forums.” (Century, supra, at p. 412.) For guidance concerning the actual factors a court
must consider, the court in Century cited and followed Stangvik. (Id. at p. 412.)
Like NFL in the present case, the insurer plaintiffs in Century cited the “strong
presumption” and “seriously inconvenient” language in Ford, supra, as defining the
moving party‟s burden of proof. (Century, supra, 58 Cal.App.4th at p. 412.) The court
in Century declined to follow Ford because Ford involved a dismissal rather than a stay.
(Ibid.) The court again quoted the Supreme Court‟s Archibald decision: “„[i]n
considering whether to stay an action, in contrast to dismissing it, the plaintiff‟s residence
is but one of many factors which the court may consider.‟ [Citation.]” (Century, supra,
37
at p. 413.) The court then completed its analysis of the Stangvik factors and, finding no
abuse of discretion, upheld the trial court‟s stay order. (Id. at pp. 413-414.)
In sum, we find the Ford decision questionable and in any event inapposite. The
present case, unlike Ford, does not involve a dismissal order adverse to a California
resident. We respectfully disagree with Taschen, Morris and Hansen to the extent that
they impose the “seriously inconvenient” burden on parties moving for a mere stay based
on forum non conveniens. Century, on the other hand, we find to be well-reasoned and
well-grounded in the teachings of our Supreme Court. We hold that the trial court
properly declined to require defendant insurers to prove California is a seriously
inconvenient forum in the present case. 15
5. The trial court did not give dispositive deference to the New York action
The trial court‟s statement of decision included the following: “California is not a
convenient home for this case, given that this case duplicates an older litigation in the
NFL‟s home state of New York.” It also referred to the California action as “a new and
redundant case about the same insurance coverage dispute already being litigated in New
York.” Seizing on these findings, NFL contends the trial court “apparently” found the
fact the New York case was “first-filed” to be a “dispositive” factor in the analysis. Such
15
The California Supreme Court has never elaborated on its statement in Stangvik
that “defendant, as the moving party, bears the burden of proof.” (Stangvik, supra, 54
Cal.3d at p. 751.) Courts of appeal have concluded from the “analytical framework set
forth in Stangvik” that no substantial evidentiary showing, beyond the existence of an
alternate forum, is required. (Campbell, supra, 69 Cal.App.4th at p. 1542; [“Stangvik did
not require an extensive evidentiary showing.”]; see Morris, supra, 144 Cal.App.4th at p.
1462 [no particularized affidavits required].) We agree. The moving party burden on a
forum non conveniens motion appears to consist of establishing a suitable alternate forum
and providing the trial court with sufficient facts to carry out its weighing and balancing
analysis. Any additional requirements would appear to conflict with the clear mandate
that the analysis is entrusted to the trial court‟s discretion.
38
a finding, argues NFL, erroneously shifted the burden of proof to plaintiff and is
otherwise flawed.
We need not explore the disputes about whether a “first-filed” rule exists or the
likely fate of the New York action, because we disagree with the premise that the court
gave any improper weight to the existence or filing date of the New York case. The
language quoted by NFL appears in the introductory section of the statement of decision,
shortly before the trial court briefly addressed the threshold issue of whether New York is
an adequate forum. We read the trial court‟s decision to have considered the existence of
the New York case primarily as a strong indicator that such an alternative forum exists.
The court thereafter proceeded to address the required balancing of private and public
interests, as well as NFL‟s various arguments. We reject the notion that the trial court
gave dispositive deference to the New York litigation as unsupported by the record.
6. The trial court did not shift the burden of proof on the defense motion to plaintiff NFL
Notwithstanding the trial court‟s express finding that the “moving parties have met
their burden” of proof, NFL contends the trial court erred in “functionally” requiring NFL
to prove the inconvenience of the New York forum. NFL argues this issue
circumstantially, citing no direct evidence in the record. We reject NFL‟s claim of an
improper burden shift.
NFL‟s argument relies heavily on its contentions that defendants‟ burden of proof
was to show the serious inconvenience of the California forum and overcome a strong
presumption in favor of plaintiff‟s choice of forum. We have already concluded that
these arguments are flawed.
NFL notes the trial court‟s description of their California filing as “„selective and
tactical.‟” In argument before the trial court, NFL conceded this point, correctly
contending “there is nothing wrong with lawyers and their clients proceeding tactically.”
We think the trial court elegantly summed up its view of this issue within the balancing
39
process when it stated at the hearing that a tactical filing decision is “not to be
condemned, but neither is it to be cherished.” The trial court properly considered filing
tactics as a neutral factor in its analysis. (Stangvik, supra, 54 Cal.3d at pp. 763-764
[disapproving earlier cases which considered advantages to plaintiff of California law as
a factor favoring denial of forum non conveniens motion].)
NFL contends the trial court‟s tentative ruling, comments during argument and
final order “are replete with what the court felt the NFL had failed to show, while saying
almost nothing about any showing made (or not made) by the insurers.” Similarly, NFL
alleges the statement of decision largely ignores facts on the “„California is seriously
inconvenient‟ side of the ledger.” These arguments are non-starters because the trial
court was under no obligation to recite every fact considered in its balancing process or to
follow any formula in explaining itself. The commonplace fact that a ruling focuses on
the factors supporting it is not an indication that contrary evidence was ignored.
Additionally, we note that once a presumption is rebutted or a burden met, the burden
shifts to the responding party to overcome the moving party‟s rebuttal evidence. We
believe that is exactly what occurred here, as illustrated by the trial court asking NFL
during the argument on the motion what “counter-showing” they had to the “volumes of
evidence that your colleagues have adduced . . . .”
Finally, we decline NFL‟s invitation to reweigh the individual facts contained in
the trial court‟s ruling, given the abuse of discretion standard on appeal. (Stangvik,
supra, 54 Cal.3d at p. 751.)
D. The trial court‟s stay order was not an abuse of discretion
NFL attacks the trial court‟s exercise of its discretion in four ways. First, it argues
the trial court “skewed” several factors by incorrectly concluding they weigh against the
Los Angeles venue, when in fact they favor it or are neutral. Second, NFL contends the
trial court ignored significant private and public factors that support retaining jurisdiction.
40
Third, the trial court allegedly gave undue emphasis to the burden on California‟s court
system and taxpayers. Finally, NFL urges that California has a substantial interest in the
coverage action. We will address each of these arguments while emphasizing that we
reject NFL‟s implicit invitation to engage in a de novo review.
1. The trial court did not “skew” certain factors
The factors allegedly “skewed” by the trial court include the past California
residency of the predecessor to plaintiff NFL Properties, the paucity of defendants who
principally do business in New York, the relative abilities of the New York and Los
Angeles courts to handle complex commercial matters, the absence of a California forum
selection clause in the subject policies, and the difficulties of bringing evidence and
witnesses to the ultimate forum. In each of these areas, NFL argues the trial court gave
undue weight to the pro-New York arguments while neglecting or miscontruing the
degree to which the issue favors a California forum. In other words, NFL asks us to
reweigh the evidence and substitute our judgment for that of the trial court. This we
cannot do. (Stangvik, supra, 54 Cal. 3d at p. 751.) Nor do we attach significance to the
trial court‟s failure to mention any particular part of the evidence. Where the record is
silent we draw all reasonable inferences in favor of the trial court‟s ruling, because that
court had no duty to fully express the reasons for its ruling. (Hahn v. Diaz-Barba, supra,
194 Cal.App.4th at pp. 1187-1188.) Given the thoroughness of the briefing, argument
and the court‟s written ruling, we have no doubt the court was mindful of all aspects of
the record.
41
2. The trial court did not ignore significant factors
The first factor favoring a California forum allegedly ignored by the trial court is
the fact that two defendants, Fireman‟s Fund and TIG, are California residents and they
issued approximately half of the primary policies involved in the present case.
Fireman‟s Fund, which allegedly refused to defend the underlying tort litigation
despite being a primary insurer, is a California corporation with its principal place of
business here. However, it remains only one of 32 defendant insurers whose interests
must be taken into account. Further, because of the inescapable fact that NFL does
business in New York, that is where any legal injury has occurred.
TIG, a California corporation, allegedly issued 10 primary policies, more than any
other defendant. Some were issued when TIG‟s principal place of business was in
California. NFL notes that either the state of incorporation or primary business location
of a corporate defendant is presumptively a convenient forum. (Stangvik, supra, 54 Cal.
3d at p. 755.) However, TIG‟s current principal place of business is in New Hampshire,
while its affiliates‟ headquarters are in New Jersey. Relevant witnesses and documents
are in those locations. California‟s interest in determining coverage for New York
entities simply because a carrier is incorporated here is minimal at best.
The second factor NFL contends was erroneously ignored is the contacts, past and
present, between plaintiffs and the state of California. These include: the fact that NFLP,
the predecessor of NFL Properties, was a California corporation during its 38-year
existence, and principally did business and bought insurance in Los Angeles between
1963 and 1970; and the multiple teams that have made California home, resulting in
extensive community ties and, we are told, more NFL games having been played here
over the last 50 years than any other state. NFL argues these long-term contacts are
relevant in a case where the underlying torts and resulting coverage issues date back
nearly 50 years. The trial court did not ignore these issues. Rather, it correctly pointed
out that the issue at hand, convenience, depends on current circumstances, unlike a
42
“minimum contacts” jurisdictional issue. NFL Properties and its predecessor have done
business principally in New York for over 40 years. California‟s interest in a former
resident‟s entitlement to coverage for tort claims filed nationwide, mostly by non-
California residents, is minimal.
NFL‟s third allegedly ignored factor, policies that were issued or brokered in
California in the 1970‟s, along with possible 1960‟s California policies yet to be located,
is unpersuasive. Only a handful of the 187 known policies were brokered in California,
and those brokers have since merged with Chicago agencies. Most of the policies were
placed by New York brokers, who cannot easily be compelled to appear for trial in
California. Again, California‟s interest in litigating policies issued to a former resident
corporation decades ago pales in comparison to New York‟s interest in resolving a case
where the vast majority of policies were issued outside California through New York
brokers to current New York residents. Thus, the trial court understandably gave short
shrift to past contacts with California, as compared to the current state of affairs.
NFL next claims that because the first few of the underlying tort cases were filed
in California, the first alleged coverage breaches took place here. Those cases, involving
12 percent of the 3,700 players who have sued, could eventually be returned for trial in a
California federal court. The brain injury suits were predominantly filed outside of
California, which is where most defense resources will be needed. And, again, any
alleged breach of the duty to defend has injured NFL where it lives, in New York.
NFL‟s fifth contention is that it has interacted with California-based claims staff as
to 70 of the 180 policies at issue, including representatives of five insurers with primary
policy duties. NFL concludes that many of the alleged coverage breaches are occurring
here, and many prospective witnesses are located here, along with significant discovery
and trial evidence. This is a fair point, yet, using NFL‟s numbers, at least 117 policies
have no association with California claims personnel. And, many of the 70 policies
referenced above are being handled jointly by insurer employees in other states. All told,
the relevant claims are being handled predominantly east of the Mississippi River, mostly
43
in the New England and mid-Atlantic states. As the trial court stated, “The balance tips
against California.”
The sixth allegedly undervalued factor raised by NFL is Los Angeles Superior
Court‟s ruling “relating” the instant case to the Riddell coverage action, which was filed
four months before NFL‟s case and remains pending in Los Angeles. NFL points out the
two cases arise from the same underlying tort claims, and involve some of the same
insurer defendants, as well as issues relating to NFL being an additional insured on
policies issued to Riddell. This issue was not ignored by the trial court, which expressly
found that the, “Riddell case does not make California a convenient location for [this
case].” While it is arguable that certain efficiencies would occur should the two cases
remain in the same Los Angeles courtroom, the cases involve coverage for different types
of claims under different insurance policies, potentially governed by the laws of different
states. NFL‟s coverage for products liability under Riddell‟s policies is not the same issue
as its coverage under its own policies for other tort claims. Consequently, we disagree
with NFL‟s contention that separating the two cases might lead to inconsistent results.
In sum, the above-discussed factors were expressly or impliedly considered by the
trial court in its balancing process. They were not, as argued by NFL, undervalued or
ignored. We find no abuse of discretion in the trial court‟s conclusion that, considered
singly or in combination, they did not mandate a denial of the defense motions.
3. The trial court did not give undue emphasis to the burden on
California‟s court system and taxpayers
NFL notes cautionary language in Stangvik regarding avoiding undue emphasis on
any single factor in the balancing analysis (Stangvik, supra, 54 Cal.3d at p. 753), and not
using a forum non conveniens ruling to control one‟s docket (id. at p. 758). It argues the
trial court abused its discretion by “giving the concern for court congestion and taxpayer
burden . . . singular emphasis and great weight, without giving any counterweight to other
44
significant factors favoring retaining jurisdiction . . . .” This is a puzzling claim, given
that consideration of public interest factors is one of the mandated categories a trial court
must evaluate in response to an inconvenient forum motion. In Stangvik our Supreme
Court stated, “The public interest factors include avoidance of overburdening local courts
with congested calendars, protecting the interests of potential jurors so that they are not
called upon to decide cases in which the local community has little concern, and
weighing the competing interests of California and the alternate jurisdiction in the
litigation.” (Stangvik, supra, 54 Cal.3d at p. 751, citing Piper, supra, 454 U.S. at pp.
259-261.) Those are precisely the factors considered by the trial court in the present case.
We find NFL‟s speculative claim that the court gave undue weight to them unpersuasive,
and beyond the scope of our abuse of discretion review.
4. The trial court properly concluded California has
no substantial interest in retaining this coverage action
Seizing on the trial court‟s comment in its written ruling that “nothing
recommends California,” NFL argues the trial court abused its discretion by giving no
weight whatsoever to the factors discussed above in section D2 of this opinion. We have
already examined those factors and explained why we are unpersuaded by the NFL‟s
claims that they demonstrate an abuse of discretion. We review the trial court‟s action,
not its precise reasoning, and especially not a few of its words taken out of context. (Cal-
State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal. App. 4th 1666, 1676.)
There was no abuse of the trial court‟s wide discretion to assign appropriate weight to the
relevant factors.
45
V. CONCLUSION
The trial court applied the correct standards in conducting the proceedings below.
No strong presumption in favor of the NFL plaintiffs‟ choice of forum applied because
plaintiffs are not California residents for purposes of a forum non conveniens analysis.
The burden of proof on the defendant insurers, as the moving parties on the motion, did
not include establishing California is a seriously inconvenient forum because such proof
is not required to justify a stay of the California proceedings, as contrasted with a
dismissal. The trial court‟s decision to stay the proceedings after weighing and balancing
the relevant factors was well within its allowable discretion.
VI. DISPOSITION
The trial court orders staying the proceedings below pending the outcome of the
parallel New York actions are affirmed. Costs on appeal are awarded to defendants.
CERTIFIED FOR PUBLICATION
O‟NEILL, J.*
We concur:
TURNER, P.J.
KRIEGLER, J.
*
Judge of the Ventura County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
46