*1 No. 15731. Third Dist. June [Civ. 23. 1976.] Petitioners, al., MARINE
OUTBOARD CORPORATION et THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; al.,
CORINNE E. et Real Parties Interest. BOYD *2 Counsel
Johnson, Greve, Clifford & Claire H. Greve and Lawrence Diepenbrock, A. for Petitioners. Wengel
No for appearance Respondent. Armenis, & Rusten David C. Rust and David I. Brown for Real Parties in Interest.
Opinion Petitioners,
EVANS, J. and (OMC) Outboard Marine Corporation France, William L. writ of seek a mandate directing peremptory an action Sacramento Court to dismiss County respondent Superior The court heretofore conveniens. ground superior denied a similar motion. The record reveals the facts: following pertinent OMC is a Delaware with its of business in corporation principal place Illinois. OMC also does business in all 50 and states has a Waukegan, resident for service of in both California and agent process Wyoming; Motors, Cushman named ain death in wrongful proceeding brought interest, OMC, Sacramento the real in is a division County by parties involved, not a of machine here separate legal entity. type Trackster, Lincoln, Nebraska, Cushman manufactured was in from 1970 1973, Manawa, thereafter, France, to Wisconsin. L. William and California, resident of Sonoma one of the named County. individually defendants in the death is one of seven sales wrongful proceeding, OMC. for His with OMC and at managers employment began death, the time of the accident his sales area Boyd’s resulting Arizona, Nevada, encompassed Washington, Oregon, Alaska, Hawaii, Columbia, and the Canadian of British provinces Alberta, the Northwest and Yukon territories. Saskatchewan and Wyo- France of his sales was is not and has not been territory. ming part business; involved with sales decedent’s he did not have any the accident the facts and circumstances knowledge surrounding research, was not involved in with the any way development, design, manufacture of the trackster. France was named as a nominal obviously defendant because of his California residence. His in the appearance of the does not affect death disposition wrongful proceeding forum. challenge
The factual residence in situation to France’s relating factual Clorox from the circumstances Brown easily distinguished Brown, (1976) Co. In Cal.Rptr. that the manufacture toxic material possibility may packaging addition, have been in California raised. In was defendant corpora- tions had their in California. Such factors business principal place to France are not involved. here applied deceased, Newcastle,
Neal Otis had been a dealer in Cushman Boyd, Newcastle, while a trackster Wyoming. Boyd operating *4 suffered fatal widow and heirs are all residents of His injuries. surviving the law firm of Rust & Armenis to Sacramento they Wyoming; employed a commence death action OMC. The law firm secured wrongful against Hewlett, the of its Esma a resident of appointment employee, as administratrix of the of estate in California and thereafter her Boyd behalf the filed which action from these mandate arise. proceedings OMC, for the asserted cause of action estate Except against Boyd’s (hereafter does not have assets in California. plaintiff)
In this
we are not
with
venue
concerned
proceeding,
questions
jurisdiction.
non conveniens is different and
concept
forum “
distinct
from
‘The
non
jurisdiction.
concept
principle
forum
conveniens is
a
that
court
resist
its
simply
may
imposition upon
even when
is authorized
the letter
a
jurisdiction
jurisdiction
general
”
Ry.
Atchison,
venue
577,
(Price
statute.’
v.
42
T. & S. F.
Co.
Cal.2d
(1954)
457,
580-581
P.2d
811, court, 544 P.2d 947], limitations although placing 859; residents, of the doctrine to California at stated application page case which dismissal of suit under the exceptional justifies “[T]he doctrine of non one in conveniens is which California cannot an forum or has no interest so. provide adequate doing Examples would include cases in which no is a v. (Price resident party California Atchison, Co., T. S. 577) & F. 42 Cal.2d or in which the nominal Ry. supra, resident sues on or creditors.” foreign behalf beneficiaries (Fns. omitted.) (Italics added.) Court, The court in Great Co. v. Northern Ry. supra, Superior 105 further the substance of the doctrine at explicates page 109 as follows: “The doctrine has been defined. Leet Union variously Co., 25 Pac. R.R. Cal.2d P.2d 158 A.L.R. states: ‘The rule of an *5 conveniens is one equitable embracing forum a decline to the it of court to exercise has discretionary power jurisdiction over a cause of it action when believes that the action before it transitory be more and tried elsewhere.’ Canada may appropriately justly 413, Co., 837, 842, Co. v. Paterson 285 423 U.S. L.Ed. 52 Malting [76 wrote, S.Ct. Mr. Justice Brandéis ‘Courts and lawof equity decline, in the interest of to exercise occasionally justice, jurisdiction, where the suit is between aliens nonresidents or where for kindred reasons the can more be a conducted in litigation appropriately foreign tribunal.’ Fifteen later the same court wrote Oil v. years (Gulf Corp. Gilbert, 501, 1055, 330 U.S. 507 L.Ed. ‘The supra, 1062]): [91 principle non conveniens is that a court resist its simply may imposition upon forum even when jurisdiction is authorized a letter of jurisdiction general venue statute. These statutes are drawn with a necessary generality courts, a a choice usually so that he be give sure of plaintiAT may quite some in which to his But place door admit pursue remedy. open may those who seek not but blended with some simply justice justice perhaps harassment. A sometimes under to to resort plaintiff temptation the trial at a most for inconvenient an strategy forcing place adversary, even at some inconvenience to himself.’ the Judicial Council of Recently, ‘1969 its Annual to the Governor and the Report of the doctrine in this manner: ‘The various bases of Legislature’ spoke the Fifth clauses of under the due jurisdiction recognized process judicial Constitution establish to the United States Fourteenth Amendments not exercise its which a state court the outermost limits may beyond limits, cause Within those the owner of transitory judicial jurisdiction. wide choice in which to his of action will often have a of forums bring action. Some of have little relation either to the these forums may parties action, or to the cause of and suit in increase them may greatly burden to the defendant of a defense. Under the doctrine of making forum, court, inconvenient even it has will not though jurisdiction, entertain the suit if it believes that the forum of ais filing seriously inconvenient forum for the trial of the But action. in such instances a ” more forum must be available to the appropriate plaintiff.’ “Whether or not shall be conveniens rests applied the sound discretion of the trial court. the balance Unless weighs strongly defendant, in favor of the choice of a forum will be plaintiff’s rarely 501, (See Gilbert, disturbed. Oil 330 U.S. Corp. supra, [91 Gulf 1055, Atchison, L.Ed. Co., Price v. 1062]; & S. F. Ry. Topeka supra, Nevertheless, Cal.2d 584-585.) the exercise of such discretion not be it must be exercised in with the may arbitrary; conformity spirit the law and in a manner to subserve and not ends impede Shemanski, substantial (See Silver v. justice. P.2d 418].) Where the balance does in a it weigh heavily defendant’s favor
becomes the court’s the doctrine.” at (Id., 110.) (Italics duty apply p. added.)
Plaintiff based contends the trial court’s decision was reasonably considerations of convenience of and lack of ease of access witnesses caused tests court. She that her counsel Wyoming suggests previously *6 California; the tests were be conducted on a Cushman Trackster in connection with Sacramento accomplished County proceeding accident had occurred in California. trackster which predicated upon witness, Counsel for asserts that his local plaintiff developed expert that will be inconvenienced through private testing, by Wyoming forum. It is also cost of contended that there is little or no difference in travel for OMC and its or their offices in between employees agents Newcastle, Nebraska and further Sacramento or Plaintiff Wyoming. that weather in and around Newcastle are severe conditions argues to make it an inconvenient forum for all enough parties. of the doctrine
Such to the arguments opposition application non conveniens miss their mark. totally forum
440
The residence of the administratrix is of little relatively consequence. She is a nominal She enters the case as a means for her merely plaintiff. to institute the action in case this was employer jurisdiction; commenced in Sacramento for the convenience and employer’s convenience of his witness. From the record it over- expert appears that other factor and circumstance whelmingly every supports of the doctrine. The heirs and beneficiaries of the deceased application have not been shown to be threatened with if the lawsuit is any prejudice instituted and tried in the forum where the accident the state happened, of their residence.
The fact that OMC conducts in this little business state is also of endow state with As the court in consequence except jurisdiction. Ry. Court, Great Northern v.Co. at Superior supra, page stated, based, “It is that fact alone on which California venue was and without a valid venue there can no be call for the application Gilbert, non . . conveniens. . And as said in Oil Corp. supra, forum Gulf U.S. L.Ed. ‘Indeed the doctrine can conveniens never if is there absence apply jurisdiction mistake of venue.’
“To allow the of a cause action to obtain and retain beneficiary a number of states in across foreign jurisdiction simply by reaching enfeeble, ‘the of her choice’ would if not selecting attorney destroy, of the doctrine under Such here consideration. legitimate purpose would the law.” be unreasonable. It permissiveness obviously (Italics in original.)
In Sacramento court case reaches County, ordinarily superior jury trial in 15 to from after months it is at issue. such a trial Wyoming, is undertaken within six months from the time it is at issue. The statute of limitations for the two as to the cause action is jurisdictions applied not a factor. If the action were tried in Code of Civil n Procedure section 361 determines which law to It apply. provides: State, “When a cause of action has *7 arisen in another or in foreign the laws an thereof action thereon there be cannot country, time, maintained reason of the an action against person by lapse State, thereon shall not be maintained him in this favor against except State, of one who has been a citizen of and who held the cause of this has action from the time it accrued.” bar in must also be a bar to the
Clearly, any statutory Wyoming tried, law, California wherever the cause is proceeding. Wyoming will apply. have, OMC,
We determined that considering petition factors of the doctrine of inconvenient following compel application forum and dismissal.
1. OMC is amenable to personal jurisdiction process Wyoming as the alternative forum.
2. The convenience of the and witnesses to the accident is best parties served in the locale of their residence. The accident occurred in and the site is available for trier of fact. Wyoming viewing by Wyoming 3. No involved would be party or inconvenienced prejudiced by any conflict of law rules. As between California and were the Wyoming; action tried in this of Code of Civil jurisdiction, Procedure provisions section 361 make law. applicable Wyoming
4. The of business of OMC is in Nebraska. It principal place carries on business in each of the 50 A states. forum in operations rather than would a serious inconvenience Wyoming impose defendant. The relative to OMC of the action in this expense defending state would exceed $10,000. the cost of a proceeding Wyoming by
5. None of the events rise to the cause of action occurred in the giving California; State of or the cause be product instrumentality alleged manufactured, of the accident was not or sold in this state. designed 6. No to the action will be party substantially disadvantaged by the action in the forum. pursuing Wyoming
7. The factual in the death of accident resulting description decedent indicates that a view of the accident site in would Wyoming be but only helpful, probably necessaiy.
8. entered will in the action be enforceable Any judgment by process issued or other enforcement in either this state undertaken proceedings state, other any including Wyoming.
9. fact or factors Nothing benefit the suggests any to indicating of this state if the trial were here. people On the the pursued contrary, cost to the for a trial in which the forum has no is interest taxpayers unwarranted and excessive.
10. California attendance of may process compel Wyoming witnesses. Plaintiff’s witness is available at expert presumably plaintiff’s n call, counsel’s and will to a to respond appear request Wyoming without subpoena.
11. nature, In a of this a fair trial is more assured proceeding likely accident, the locale of the the residence of decedent’s heirs. surviving 12. Administrative difficulties and other inconveniences from crowded calendars and courts are more in this congested jurisdiction. probable it is to the Additionally, on inequitable obligation impose jury duty forum little or no interest in the having litigation. defendant, court, and
13. The to the the the inconvenience jurors enhanced the case is by presenta- hearing greatly probability tion of a substantial amount testimony by deposition. little,
14. if The local California has interest in this any, litigation. only connection with is the residence of counsel and this case plaintiff’s expert witness, will be defendant France. these and the nominal Only persons inconvenienced trial by Wyoming. the doctrine
We that failure of the trial court conclude apply There is an obvious was an abuse of discretion. non conveniens a trial in Sacramento. absence interest to be served by any legitimate courts, and fairness to ends of justice taxpayers require litigants, that the action be tried in Wyoming. that we vacate the reason of the
By foregoing, petitioners’ request Moreover, court’s order rendered moot. respondent discovery peti- tioners have failed to offer or citation argument authority support addition, that court order made by respondent request. to file reserved to their specifically objections petitioners right and have those the trial considered court. interrogatories objections Let the writ of mandate issue dismissal of the peremptory directing action. *9 J„
Paras, concurred. view, however, PUGLIA, P. J. I concurin the my judgment. as court does not sufficient on public, opinion place emphasis choice of from the of these distinguished private, impact plaintiffs’ forum. the balance of interests Certainly, private among litigants Even more for a of forum argues strongly Wyoming. change case, however, in is the broader the circumstances of this compelling interest finite resources from public protecting judicial exploitation and them for with a claim them. reserving litigants legitimate
A clearer more obvious case than this for vindication of the public concern with the choice of forum will seldom be found. The accident The her deceased husband and happened Wyoming. plaintiff-widow, his other heirs have at all relevant times been residents The Wyoming. estate has no in California other than the cause of action in the property research, action. Neither underlying or design, development, testing the trackster took nor production were place operating instructions or other to the in or writings pertaining product prepared disseminated to the deceased from California. defendant, France, contact, indirect,
The individual had no direct or with the deceased. He had no of the accident. He made no knowledge sales of tracksters to the deceased or else in anyone Wyoming played research, no role in its His design, testing, development production. three after the fatal accident as an months presence Wyoming observer at a demonstration of the trackster’s in snow maneuverability was conditions coincidental and unconnected with the events described in the Plaintiffs’ contention that France is liable as a member complaint. of a to conceal in the trackster from the defects actively conspiracy untenable, deceased and others is since agents employees cannot with the while in their corporation acting conspire corporation official on behalf of the (Zumbrun University capacities corporation. Southern (1972) Cal.Rptr. A.L.R.3d 991].) without
The trial court denied France’s motion for summary judgment
when
is at
issue and
its renewal
the case
discovery
prejudice
here,
cannot
While that
is not in issue
it
obscure
completed.
ruling
fact that France
and in all likelihood no
is at most a nominal defendant
California adds
more than mere witness.
his residence in
Accordingly,
to the
for
forum.
nothing
equation
determining
proper
interest factors
consideration in a
public
demanding
*10
conveniens
of
determination have been the
comment
our
by
subject
(1947)
courts. In
Oil
v.
More
our
Court
observed that “Califor-
pungently,
Supreme
recently
nia’s
for
must not
so
it
be
as to
appetite
litigation
gluttonous
compel
in the trial of
that
. .
causes
are . more
resolved
engage
conveniently
elsewhere,
853,
. . .” (Archibald v.
Cinerama Hotels
Cal.3d
(1976)
811,
bar,
There is another dimension to the that brief problem requires mention. Indiscriminate causes of California courts to availability no concern unfair to who overburdened locally manifestly taxpayers fund the well as as to citizens whose time is condemned judicial system for at financial sacrifice. jury duty personal For the reasons the doctrine non conveniens should foregoing offorum be causes applied of action into prevent importation transitory this state for trial. (See Price Atchison T. & (1954) S. F. Co. Ry. 577, 457, Cal.2d 583-584 P.2d 43 A.L.R.2d 756].)
A 14, for was denied and the petition rehearing July petition the real in interest for a Court was parties hearing Supreme denied 1976. September