Lund> v. Olson























Filed 2/22/13 Lund v. Olson CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.











IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

BRADFORD D. LUND, Plaintiff and Appellant, v. TIMOTHY OLSON et al., Defendants and Respondents.

G046537 (Super. Ct. No. 30-2011-00506045) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, David T. McEachen, Judge. Affirmed in part and reversed in part and
remanded.

Bohm, Matsen, Kegel
& Aguilera and James G. Bohm for Plaintiff and Appellant.

Sheppard, Mullin,
Richter & Hampton, Brian M. Daucher and Adrienne W. Lee for Defendants and
Respondents

*
* *

Plaintiff
Bradford D. Lund appeals from the order dismissing his lawsuit against his
half-sisters and their husbands, defendants Kristen Lund Olson, Timothy Olson,
Karen Lund Page, and James Page (non-attorney defendants), based on the forum
non conveniens doctrine, contending the court erred in granting the motion and
dismissing, rather than staying, the action.
We affirm the court’s finding of forum non conveniens but reverse the
order to dismiss and remand with directions to either (1) deny non-attorney
defendants’ motion to dismiss or stay the action, or (2) grant the motion to
stay the action subject to non-attorney defendants’ agreement to toll
applicable Arizona statute limitations from the filing of the California action
until 90 days after the remittitur in this case issues.

Although the href="http://www.fearnotlaw.com/">opening brief also refers to Burch &
Cracchiolo, Daniel Cracchiolo and Bryan F. Murphy (attorney defendants),
plaintiff did not separately appeal from the subsequent order dismissing them
for the same reason and we dismissed them from the appeal. We thus do not consider any argument on
appeal with respect to attorney defendants.




FACTS AND PROCEDURAL BACKGROUND



Plaintiff’s mother, the
daughter of Walt Disney, established trusts for plaintiff and his two sisters
upon her death. His sister Victoria died
without children in 2002. Plaintiff
believed her trust assets were distributed evenly between him and his remaining
sister, Michelle, who subsequently suffered a brain aneurysm in 2009. Michelle survived but while she was
undergoing treatment, plaintiff’s aunt, Diane Disney Miller, and his
half-sisters, non-attorney defendants Kristen Olsen and Karen Page, petitioned
the court in Arizona to have a
guardian and conservator appointed for plaintiff.

In September 2011,
plaintiff, who resides in Arizona,
filed a lawsuit in California alleging
breach of fiduciary duty, invasion of
privacy, plus conspiracy and aiding and abetting to induce these torts. According to plaintiff, all defendants
conspired with the trustees of his trust to bring the conservatorship action in
order to gain control over his trust assets because they believed he would
inherit his sister’s wealth if she were to die from the brain aneurysm. The complaint further pleads Orange County is
an appropriate venue because that is where the acts constituting the alleged
torts occurred, e.g. where non-attorney defendants met with co-trustees and the
attorney defendants met with his sister Michelle “while she was under a
conservatorship to unduly influence her and enlist her financial support and
aid in causing the [c]o-[t]rustees to breach their fiduciary duties to
[plaintiff] and invade his privacy.”

Non-attorney defendants
moved to dismiss the complaint on the grounds of inconvenient forum because
none of the parties to the action reside in California. They attached declarations showing Kristen
Olson and her husband, Tim, live in Arizona,
while Karen Page and her husband, Jim, live in Utah
but would consent to the jurisdiction of the Arizona
courts. All four also agreed to toll the
statute of limitations from the date the action was filed in California
to the time it was filed in Arizona,
“so long as such filing occurs in Arizona
within 90 days of an order . . . staying or dismissing this
case for inconvenient forum.” They further
sought judicial notice of related litigation pending between the parties in Arizona.


At the hearing in
December 2011, the court issued a tentative ruling granting non-attorney
defendants’ motion to dismiss and allowed plaintiff to argue the matter. It took the matter under submission and two
days later issued a minute order granting the motion, finding plaintiff’s
“choice of forum . . . not a significant factor” because he
is a resident of Arizona, and
“the other private and public factors favor Arizona.” It granted non-attorney defendants’ request
for judicial notice of the existence of the various lawsuits in Arizona
and dismissed, rather than stayed the action because “no California
residents are involved.”



DISCUSSION



>1.
Burden of Proof

“Forum non conveniens is
an equitable doctrine invoking the discretionary power of a court to decline to
exercise the jurisdiction it has over a transitory cause of action when it
believes that the action may be more appropriately and justly tried elsewhere. [Citation]”
(Stangvik v. Shiley Inc.
(1991) 54 Cal.3d 744, 751.) In ruling on
such a motion, the court engages in a two-step process. First, it decides “whether the alternative
forum is a ‘suitable’ place for trial.”
(Ibid.) If it makes that finding it next “consider[s]
the private interests of the litigants and the interests of the public in
retaining the action for trial in California.” (Ibid.) As the moving party, the defendant “bears the
burden of proof.” (Ibid.)

Plaintiff contends the
court prejudicially erred in placing the burden of proof on him to prove California
is not an inconvenient forum rather than on non-attorney defendants to prove
otherwise. According to plaintiff, at
the start of the hearing on the motion the “court immediately turned to [him]
to prove why this action should remain in California.” This misstates the record, which shows the
court had already issued a tentative order granting the motion but was giving
plaintiff a chance to argue. The court’s
order was supported by declarations of the four non-attorney defendants
confirming the Olsons lived in Arizona
and the Pages lived in Utah but
would consent to Arizona’s
jurisdiction and further agreeing to toll the statute of limitations for 90
days from the date of the court’s order.
Given that, and the evidence of multiple related lawsuits between the
parties in Arizona, we reject
plaintiff’s arguments the court failed to require non-attorney defendants to
present supporting evidence why California
was a seriously inconvenient forum or “that Arizona
could and would take the case.” (Bold
and underlying omitted.)



>2.
Suitable Alternative Forum

Plaintiff argues the
court also failed to find Arizona
was a suitable alternative forum before dismissing the action. We disagree.
The court implicitly so found when it granted the motion, noting
plaintiff “is a resident of Arizona”
and “the other private and public factors favor Arizona.” (Roman
v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, 682 [court’s
finding of suitability implicit in order granting forum non conveniens motion];
accord Investors Equity Life Holding >Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1529 (Schmidt).)

“The ruling on a forum
non conveniens motion is generally reviewed for abuse of discretion with
‘substantial deference . . . accorded [to the trial
court’s] determination in this regard.
[Citations.]’ [Citation.] But the ‘threshhold determination whether the
alternative forum is a suitable place for trial’ involves ‘a nondiscretionary
determination’ [citation] that is reviewed de novo [citation].” (Schmidt,
supra, 195 Cal.App.4th at p.
1528.) “‘An alternative forum is
suitable if it has jurisdiction and the action in that forum will not be barred
by the statute of limitations. [Citation.]’” (Id.
at p. 1529.) Here, non-attorney
defendants are all subject to Arizona jurisdiction whether by residence or
consent and had agreed to toll the statute of limitations for a reasonable
time.

Although plaintiff
acknowledges his ability to sue in Arizona, he asserts “the Arizona court may
very well on its own motion have determined that California should be the
proper forum.” But plaintiff’s
litigation would not be subject to a forum non conveniens dismissal if he
re-filed his claims in Arizona because non-attorney defendants have agreed to
submit to Arizona’s jurisdiction. And
“so long as there is jurisdiction and no statute of limitations bar, a forum is
suitable where an action ‘can be brought,’ although not necessarily won. There is no balancing of interests in this
decision, nor any discretion to be exercised.”
(Shiley, Inc. v. Superior Court (1992)
4 Cal.App.4th 126, 132.)

As to the statute of
limitations, plaintiff contends the court “never elicited” whether the
applicable limitations period in Arizona had expired, without which it could
not determine if “the proposed alternative forum is in fact suitable.” But plaintiff admits in his opening brief
that at the time the court dismissed the entire action in February 2012, “the
applicable Arizona statute of limitation had not yet expired, albeit by a few
days,” and was not set to expire until early March 2012. Reviewing the issue de novo, we thus deem any
failure by the court to determine if the statute of limitations had expired in
Arizona harmless.

Plaintiff also argues
that because the Arizona statute of limitations expired in March 2012, he did
not have sufficient time to bring his action there if this appeal fails because
he “cannot reasonably have been expected to litigate this action simultaneously
in two different forums.” But he does
not explain why he could not have filed the action in Arizona and then asked to
stay it pending the outcome of this appeal.


Moreover, non-attorney
defendants agreed to toll the statute of limitations for 90 days to allow
plaintiff to file his action in Arizona.
Plaintiff asserts the agreement was illusory because in the cases cited
by non-attorney defendants, the defendants all agreed to toll the statute of
limitations whereas here attorney defendants did not so agree. (See Campbell
v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1540 [order staying
California action based on forum non conveniens stipulated all three defendants
submit to personal jurisdiction in Australia and agree to toll applicable
Australian statute of limitations]; Chong
v. Superior Court (1997) 58 Cal.App.4th 1032, 1038 [both the

defendants consented to tolling of any
applicable statutes of limitation in Hong Kong during pendency of California
action if stayed].) But whether attorney
defendants agreed or not is irrelevant to our de novo review because they are
no longer part of the case given plaintiff’s failure to timely appeal from the
separately appealable order dismissing them.
And contrary to plaintiff’s suggestion, the fact the trial court in the
cited cases stayed rather than dismiss the California actions has no bearing on
the issue of the suitability of the alternate forum.

Arizona constituted a
suitable alternative forum in this case because the appellate record shows
non-attorney defendants were subject to or stipulated to its jurisdiction and
agreed to toll the applicable limitations period. We consider now the public and private
interests in maintaining the action in California.



>3.
Public and Private Interests in
Maintaining Action in California

Plaintiff contends the
court abused its discretion weighing the private and public interest
factors. “[W]e accord ‘substantial
deference’ to the trial court’s exercise of its discretion in considering
[these] factors. [Citation.]” (Schmidt,
supra, 195 Cal.App.4th at p.
1534.) “A court has exercised its
discretion appropriately when ‘the act of the lower tribunal is within the
range of options available under governing legal criteria in light of the
evidence before the tribunal.’
[Citation.] In exercising its
discretion, however, the court must bear in mind that the moving party bears
the burden of proving that California is an inconvenient
forum. . . . [¶] . . . [¶] . . . [T]he
inquiry is not whether [the other state] provides a better forum than does California, but whether California is a> seriously inconvenient forum. [Citation.]
Unless defendants met their burden, the trial court necessarily abused
its discretion.” (Ford Motor Co. v. Insurance Co. of North America (1995) 35
Cal.App.4th 604, 610-611 (Ford Motor),
called into doubt on another ground in Campbell
v. Parker-Hannifin Corp., supra,
69 Cal.App.4th at p. 1543.) Here, based
on the evidence presented, the court did not abuse its discretion in balancing
the factors and implicitly finding “California is a seriously inconvenient
forum.” (Ford Motor Co., supra, 35 Cal.App.4th at p. 611, italics omitted.)



a. Private Interests

“‘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.’ [Citation.]”
(Schmidt, supra, 195 Cal.App.4th at p. 1534.)

Plaintiff admits that as
a non-resident of California his “choice of forum is entitled to less
deference.” (Ford Motor, supra, 35
Cal.App.4th at p. 611.) But he maintains
the “court was still required to give deference to [his] choice of forum.” According to plaintiff, “California is the
place of the wrong, the identified witnesses are located in California, the
underlying facts of this case are closely entwined with California, California
law will likely apply regardless of the forum, and California can provide a
more cost and time efficient forum to adjudicate this action.”

Plaintiff, however,
identifies only the trustees and his aunt, Diane Disney Miller, as potential
witnesses in California. By contrast,
none of the parties are California residents and all, including plaintiff, live
in Arizona or have stipulated to the jurisdiction of the Arizona courts. Several other witnesses also reside in
Arizona, including plaintiff’s father, who had been a co-trustee of the trusts
until he resigned in 2010, and the recently dismissed attorney defendants. Because these non-Californian residents
cannot be compelled to testify as witnesses or provide deposition testimony in
California (Prisch v. Superior Court (1959)
52 Cal.2d 889, 889; Toyota Motor Corp. v.
Superior Court (2011) 197 Cal.App.4th 1107, 1110, 1113, 1114, 1125), “the
availability of the compulsory process for witnesses” factor (>Ford Motor, supra, 35 Cal.App.4th at p. 616) favors Arizona. The court could also reasonably infer the
parties’ residency and submission to Arizona jurisdiction as well as the number
of witnesses in Arizona as compared to California made Arizona relatively more
convenient and advantageous to all parties, less expensive to procure
witnesses, and reduced the “inconvenience of presenting testimony by
deposition.” (Ibid.; see also Price v.
Atchison, T. & S.F. Ry. Co. (1954) 42 Cal.2d 577, 580 [defense costs of
bringing witnesses from New Mexico more expensive and trial testimony by
deposition less effective].) Plaintiff’s
arguments to the contrary seek to have this court reweigh the evidence, which
we may not do under an abuse of discretion standard of review where, as here,
the trial court’s ruling does not exceed the bounds of reason. (Ali v.
U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1351-1352.)



b. Public Interests

“‘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.
[Citations.]’ [Citation].” (Schmidt,
supra, 195 Cal.App.4th at pp.
1535-1536.)

Plaintiff contends
“California has a fundamental interest in ensuring that its trusts are being
properly administered pursuant to its laws.”
But neither the administration of the California trust, nor the conduct
of the trustees, is the crux of plaintiff’s current lawsuit, which instead
involves claims defendants induced a breach of fiduciary duty and invasion of
privacy. In other words, it was a
dispute between Arizona and Utah residents, notwithstanding plaintiff’s
contention otherwise.

Plaintiff represents
this is a simple case that would not overburden California courts any more than
Arizona courts. That may be but the
court could have reasonably concluded California had minimal interest in burdening
its courts, jurors, and legal system with a quarrel between residents of two
foreign states. (See >Price v. Atchison, T. & S.F. Ry. Co.,
supra, 42 Cal.2d at pp.
583-584.)

Although plaintiff also
argues California has a significant interest in deciding this case because that
is where the alleged tortious conduct occurred, the place of the wrong is a
factor for the court to consider, but not a controlling one (>Hernandez v. Burger (1980) 102
Cal.App.3d 795, 801-802), particularly where, as here, the majority of the
witnesses and evidence are located in a different forum (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1466). Additionally, his lawsuit against
non-attorney defendants alleges he sustained damages in Arizona, “including
having to spend over $1.5 million in defense of the frivolous actions in
Arizona” and the invasion of his privacy rights “resulting in stories being run
in an Arizona newspaper.” Thus, even if
wrongful conduct occurred in California, evidence of plaintiff’s damages would
be found in Arizona and courts have held California to be an inconvenient forum
under those circumstances. (See >Stangvik v. Shiley Inc., >supra, 54 Cal.3d at p. 762 [foreign
plaintiffs not entitled to California forum where “much, but not all, of the
evidence concerning liability exists in California, but virtually all the
evidence relating to damages is in Scandinavia”].)

Plaintiff maintains
California has an interest in retaining the case because Arizona will likely
apply California law. While he is
correct “California has an interest in the proper application of its laws to a
dispute,” he provides no explanation as to why Arizona courts would not be able
to properly apply California law. Nor
has he cited any authority allowing a California court to determine whether
another state’s court system affords sufficient due process.

4. Dismissal Rather than Staying of the Action

Nevertheless, we
conclude the court erred in dismissing the case rather than staying it to
ensure non-attorney defendants are actually subjected to jurisdiction in
Arizona and no Arizona statutes of limitations apply to bar plaintiff’s
claims. The only means to provide those
assurances is for the court to stay, rather than dismiss, the instant
California case.

Non-attorney defendants
maintain the trial court correctly dismissed the action rather than staying it
“[b]ecause no party is a California resident.”
But none of the cases on which they rely involves an agreement to toll
the applicable statute of limitations.
(See Price v. Atchison, T. &
S.F. Ry. Co., supra, 42 Cal.2d at
p. 579; Henderson v. Superior Court (1978)
77 Cal.App.3d 583; Archibald v. Cinerama
Hotels (1976) 15 Cal.3d 853, 858-859, superseded in part by statute as
stated in Stangvik v. Shiley, >supra, 54 Cal.3d at p. 755.) Rather, in the cases they cite to support
their claim agreements to toll the limitations period suffice to establish the
suitability of an alternative forum, the trial court stayed rather than
dismissed the California actions. (See >Campbell v. Parker-Hannifin Corp., >supra, 69 Cal.App.4th at p. 1538; >Chong v. Superior Court, >supra, 58 Cal.App.4th at p. 1035.) Under these cases, we conclude the
appropriate resolution of non-attorney defendants’ motion is to stay the
California proceeding rather than dismissing it outright.



DISPOSITION



The trial court did not
abuse its discretion in finding the balance of private and public interests
weighed in favor of litigating this action in Arizona. But it erred in dismissing, rather than
staying, the action. Therefore, on
remand, the trial court may either (1) deny non-attorney defendants’ motion to
dismiss or stay the action, or (2) grant the motion to stay the action. Because the statute of limitations has run in
Arizona, any stay granted on remand must be subject to non-attorney defendants’
agreement to toll the Arizona statute of limitations from the filing of the
California action until 90 days after the remittitur in this case issues. In the interest of justice, the parties shall
bear their own costs on appeal.







RYLAARSDAM,
ACTING P. J.



WE CONCUR:







BEDSWORTH, J.







FYBEL, J.