Marriage of Malcolm
Filed 1/28/14 Marriage of Malcolm
CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re Marriage
of MICHAEL and DENISE MALCOLM.
H038379
(Santa
Clara County
Super. Ct. No. 6-12-FL007717)
MICHAEL
MALCOLM,
Appellant,
v.
DENISE
MALCOLM,
Respondent.
In this family law matter, Michael Malcolm
appeals from a trial court order staying
his legal separation action on forum non conveniens grounds pending
divorce proceedings filed by his wife, Denise Malcolm, in Colorado.
wrong standard in granting the motion and remand the cause for application of
the correct standard.
Prior to their marriage, both
parties had extensive ties to California.
Michael received a master’s degree and Ph.D. from Stanford University in 1973. He founded Network Appliance, Inc., (NetApp)
in Mountain
View in 1992. After leaving that
company in 1995, he founded CacheFlow in Redmond, Washington.
CacheFlow moved to Palo Alto in 1997. Michael remained with the company until it
went public in 1999.
Denise attended public school in Monterey, California.
She earned an undergraduate degree from Stanford University and a
She was admitted to the California Bar in 1987.
In
1999, the parties married in Carmel, California. During their marriage, the parties and their
three children resided primarily in Aspen, Colorado. Between 2002 and 2011, the parties paid state
income taxes only to Colorado,
possessed Colorado
driver’s licenses, and were registered to vote in Colorado. Their state income tax returns for this
period declared that they were full-year residents of Colorado.
Nevertheless, the
parties maintained ties to California. They own two homes in Los
Altos and 850 acres of land near Carmel. Michael, who has a pilot
license, maintains an airplane hangar and apartment at the Monterey Airport where
the parties’ four airplanes are housed.
In 2001, Michael and Denise founded Kaleidescape, Inc., in Sunnyvale, California. Denise was the company’s general counsel, but
worked primarily from Aspen. Michael typically worked out of the company’s
Sunnyvale office
during the week, staying at one of the Los
Altos properties, and flying himself to Aspen each
weekend.
The
parties separated in late 2011 or early 2012, and Michael moved out of the Aspen home
and into one of the Los Altos
homes. On a daily basis, Denise is
responsible for raising the children, who go to school and participate in
numerous extracurricular activities in Aspen. She represents that traveling to California to
litigate this action would be extremely inconvenient and disruptive to her and
the children.
Michael filed a petition for
Superior Court on February 2, 2012. He
served Denise on the same day in Aspen.
Michael could not file for dissolution of marriage because he had not
yet been domiciled in California for six months, as Family Code
section 2320 requires. His petition
stated his intention to amend for dissolution in six months pursuant to Family
Code section 2321.
Denise filed a
petition for dissolution of marriage in Colorado on February
6, 2012. On March 5,
2012,
Denise filed a motion in the California action to quash service of
summons for lack of personal jurisdiction or, in the alternative, stay the
action on the ground of inconvenient forum.
The trial court conducted a hearing on
Denise’s motion on April 17, 2012.
In a written order dated May 9, 2012, the trial court denied the
motion to quash but granted the motion to stay on forum non conveniens grounds.
III. Discussion
A. Forum Non Conveniens
“Exercise of
authority by California courts over events occurring and persons located
outside the state is controlled by two companion principles: first, the long-arm statutes for service of
process can, in appropriate cases, require a nonresident defendant served with
process outside the state to respond to suit in California--when the cause of
action relates to defendant’s activities in California, when California can
provide a convenient forum, and when the state has an interest in protecting
the welfare of its citizens in relation to the subject matter. [Citation.]
Second, the principle of inconvenient forum tempers the exercise of
long-arm jurisdiction by authorizing the dismissal or stay of an action filed
in California--when it possesses no substantial connection with defendant’s
activities in California, when California cannot provide an adequate forum, and
when California has no interest in fostering the litigation.†(Henderson v. Superior Court
(1978) 77 Cal.App.3d 583, 588.)
Forum non
conveniens is an equitable doctrine allowing a court to decline to exercise its
jurisdiction over a case when it determines that the case “ ‘may be more
appropriately and justly tried elsewhere.’ â€
(Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) The Legislature has sanctioned the
application of this doctrine in Code of Civil Procedure section 410.30,
subdivision (a), which states: “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.â€
The Supreme Court
in Stangvik set forth a two-step analysis for a trial court considering
a forum non conveniens motion. The trial
court “must first determine whether the alternate forum is a ‘suitable’ place
for trial. If it is, the next step is to
consider the private interests of the litigants and the interests of the public
in retaining the action for trial in California. The private interest factors are those that
make trial and the enforceability of the ensuing judgment expeditious and
relatively inexpensive, such as the ease of access to sources of proof, the
cost of obtaining attendance of witnesses, and the availability of compulsory
process for attendance of unwilling witnesses.
The public interest factors include avoidance of overburdening local
courts with congested calendars, protecting the interests of potential jurors so
that they are not called upon 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.â€
(Stangvik, supra, 54 Cal.3d at p. 751.) The balancing of the private and public
interest factors “must be applied flexibly, without giving undue emphasis to
any one element.†(Id. at p. 753
& fn. 4.) The burden of proof is on the defendant, as
the party asserting forum non conveniens.
(Id. at p. 751.)
As the Supreme Court explained in Ferreira
v. Ferreira (1973) 9
Cal.3d 824, a distinction exists “between the dismissal of an action on grounds
of forum non conveniens, and the stay of an action on that ground†(
jurisdiction over the parties and the cause†(id. at p. 841), and consequently “can protect . . . the interests
of the California resident pending the final decision of the foreign court.†(Ibid.)
Therefore, “[t]he trial court . . . has
considerably wider discretion to grant stays†than order dismissals. (Century Indemnity Co. v. Bank of America
(1997) 58 Cal.App.4th 408, 411.)
B. Standard of Review
We review an order granting a motion to stay
on forum non conveniens grounds for abuse of discretion. (Stangvik,
supra, 54 Cal.3d at p. 751.)
“A court has exercised discretion appropriately when it acts within the
range of options available under governing legal criteria in light of the
evidence before it.†(Hansen v. Owens-Corning Fiberglas Corp.
(1996) 51 Cal.App.4th 753, 758.) Put
differently, “[i]n exercising discretion, the trial court is required to make a
reasoned judgment which complies with applicable legal principles and
policies.†(In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561.)
C.
The Trial Court Failed to Apply the
Correct Standard
The record before this court indicates that
the trial court did not evaluate the motion under all of the appropriate forum
non conveniens factors. In particular,
it is unclear from the record whether the court accorded Michael’s choice of
forum adequate weight. In addition, the
court failed to assign any weight to two factors that weigh against granting a
stay--(1) the fact that the California action was filed first and (2) the
likelihood that marital status would be determined more quickly in California.
1.
Michael’
Substantial Weight
Where the “[p]laintiff is a resident of California, . . . substantial weight must be
given to his choice of forum in this state.â€
(Roman v. Liberty
University, Inc. (2008) 162 Cal.App.4th 670, 684; see also Animal
Film, LLC v. D.E.J.
Productions, Inc. (2011) 193 Cal.App.4th 466, 473 [“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.’ â€].) While the court appears to have recognized
that Michael was a California resident when he filed suit, it
is not clear from its decision whether it accordingly gave Michael’s choice of
a California forum “substantial weight.†We remand to give the court the opportunity
to do so.
2. That Michael Filed Suit
First Weighs Against a Stay
The California action was filed and served
before the Colorado action.
The trial court concluded this fact did not weigh against a stay; that
was error.
Where suits between the same parties
involving the same subject matter are pending in courts of different states,
the court in which the later-filed action is pending “ ‘should ordinarily decline to entertain jurisdiction of the issue
under the doctrine of comity.’ †(Simmons
v. Superior Court (1950)
96 Cal.App.2d 119, 124.) For reasons that are not apparent
from the record, the usual course--deferral by the Colorado court to the pending California action--was not followed
here. While it is true that “whether to
stay the later-filed action is discretionary, not mandatory,†we believe the
court below should have acknowledged that Michael won the race to the
courthouse by weighing that win against the stay. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.)
Quickly In California
California and Colorado laws conflict concerning the bifurcation of marital status from other issues related to
property, support, attorney fees, and child custody. California favors bifurcation and early
dissolution of marital status. (Gionis
v. Superior Court
(1988) 202 Cal.App.3d 786, 789.) By
contrast, Colorado allows bifurcation in only “exceptional
cases.†(Estate of Burford v. Burford (Colo. 1997) 935
P.2d 943, 951.)
The trial court found Michael’s argument that
marital status would be determined more quickly in California to be “speculative.†However, based on the case law cited above,
it seems reasonable to conclude that bifurcation--and thus a speedy dissolution
of marital status--is more likely in California.
Therefore, the court should have considered the availability of
bifurcation as a factor weighing against the stay.
In sum, the record indicates that the trial
court did not consider all of the appropriate forum non conveniens factors in
evaluating the motion--namely, it appears not to have adequately weighed
Michael’s choice of forum, the fact that the California action was filed first,
and the likelihood that marital status would be determined more quickly in
California. We remand the cause so the
trial court can exercise its discretion in light of all of the appropriate forum non conveniens factors. We express no opinion as to whether the
balance of the private and public interests at issue justify a stay, as
weighing those interests is entrusted to the trial court’s sound discretion.
IV. Disposition
The
order staying this action is reversed and the cause
is remanded for further proceedings consistent with the views expressed in this
opinion. Appellant is awarded
costs on appeal.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
We will refer to the parties by their given names for purposes of clarity and
not out of disrespect. (
(2012) 203 Cal.App.4th 492, 495, fn. 1.)
