Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC365634, David L. Minning, Judge. Reversed and remanded with directions.
Simon, Eddins & Greenstone LLP and Brian P. Barrow for Plaintiff and Appellant.
Carroll, Burdick & McDonough LLP, Laurie J. Hepler, Gonzalo C. Martinez and James P. Cunningham for Defendant and Respondent Warren Pumps LLC.
Morris Polich & Purdy LLP, Richard H. Nakamura Jr., Douglas C. Purdy and Joni Lynn Loomis for Defendant and Respondent Crown Cork & Seal Company, Inc.
McKenna Long & Aldrige LLP, William J. Sayers, Farah S. Nicol and Margaret I. Johnson for Defendant and Respondent Union Carbide Corporation.
Filice Brown Eassa & McLeod LLP, Eugene Brown, Jr., Amee A. Mikacich and Liza C. Milanes for Defendant and Respondent Oakfabco, Inc.
Pond North LLP, Frank D. Pond and Previn A. Wick for Defendant and Respondent FMC Corporation and Sterling Fluid Systems (USA), LLC.
Booth, Mitchel & Strange LLP and Christopher C. Lewi for Defendant and Respondent Peerless Industries, Inc.
Prindle, Decker & Amaro LLP, Kenneth B. Prindle and Grace C. Mori for Defendant and Respondent ITT Corporation.
Gordon & Rees LLP, Michael Pietrykowski and Don Willenburg for Defendants and Respondents Goulds Pumps, Inc. and Leslie Controls, Inc.
Jackson & Wallace LLP, John R. Wallace, Todd M. Thacker and Christine A. Huntoon for Defendant and Respondent Buffalo Pumps, Inc.
Haight Brown & Bonesteel LLP, William O. Martin, Jules S. Zeman and Sarah J. Seo for Defendant and Respondent Flowserve U.S. Inc.
Poole & Shaffery, LLP, John H. Shaffery, Charles W. Jenkins and David M. Uchida for Defendant and Respondent Gardner Denver, Inc.
MANELLA, J.
Appellant Forbes M. Campbell initiated an action for personal injury against respondents in Los Angeles County in January 2007. The trial court granted a forum non conveniens motion in favor of an action in Canada and stayed Campbell’s California action. In June 2008, approximately 17 months after Campbell filed the California action, the trial court dismissed the action under Code of Civil Procedure section 583.410 for failure to diligently prosecute it. Because the dismissal of an action pending for less than two years is improper under section 583.410, we reverse.
All further statutory citations are to the Code of Civil Procedure, unless otherwise indicated.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Campbell has lived and worked in Canada and the United States. In October 2006, Campbell was diagnosed in Canada as suffering from malignant pleural mesothelioma. In late 2006 or early 2007, he moved to California.
On January 31, 2007, Campbell initiated the underlying action against respondents and other defendants in Los Angeles Superior Court. His complaint names 50 defendants, and asserts claims for negligence, strict liability, and conspiracy. It alleges the following facts: the defendants (and numerous “alternate entities” for which defendants were responsible) manufactured, sold, distributed, or marketed products containing asbestos, but failed to warn the public regarding the dangers of asbestos. Campbell was exposed to the asbestos in these products in the course of his employment, and as a result, developed malignant pleural mesothelioma.
Respondents are Warren Pumps, LLC, Crown Cork & Seal USA, Inc., Union Carbide Corporation, Oakfabco, Inc., FMC Corporation, Sterling Fluid Systems (USA), Inc., Peerless Industries Inc., ITT Industries, Inc., Goulds Pumps, Inc., Leslie Controls, Inc., Buffalo Pumps, Inc., Flowserve US, Inc., and Gardner Denver, Inc. Only respondent Warren Pumps has submitted a brief; the remaining respondents have joined in this brief.
On June 28, 2007, respondent Warren Pumps, LLC, filed a forum non conveniens motion, contending that the action should be dismissed or stayed in favor of an action in Canada. The motion contended that Campbell had lived less than six months in California, after residing in Canada for at least ten years; that Campbell had been employed as a welder and ironworker in Canada, Colorado, Minnesota, and Ohio, but had never been exposed to asbestos through employment in California; that nearly all the witnesses and documentary evidence pertinent to his claims were located in Canada; and that Canada offered a suitable alternative forum for his action. Campbell opposed the motion, arguing that respondent had made an inadequate showing regarding several relevant factors, including whether all the defendants could be subjected to the jurisdiction of a Canadian court.
On July 26, 2007, the trial court granted the motion, stayed Campbell’s action, and directed him to file an action in Canada “forthwith.” On September 12, 2007, Campbell filed an ex parte application for an order lifting the stay, or in the alternative, an order shorting time for notice and a hearing on a motion to lift the stay. The application asserted that Campbell’s counsel had been unable to locate representation for him in Canada. In addition, the application stated: “[P]laintiff’s counsel are informed [that] no defendant can be sued in a [p]rovince in which it employs any person. Stated differently, the key factor that tends to establish personal jurisdiction over a defendant in a United States forum actually operates to destroy personal jurisdiction over a defendant in a Canadian province. The result is that the plaintiff may be able to sue a defendant in one province, but not in another, or not at all....” The application was unsupported by any declaration or evidence supporting these contentions.
In staying the action, the trial court permitted respondents to complete Campbell’s deposition.
The trial court declined to lift the stay, but granted the request for an order shortening time and deemed Campbell’s application to be a motion. In opposing the motion, respondents submitted a declaration from Canadian attorney Edward Babin, who opined that causes of action similar to those asserted in Campbell’s complaint “exist in Canada and, with the exception of strict liability, are available to [Campbell] in the proper circumstances.” Babin stated: “Specifically, in the proper circumstances, in each of the provinces in which [Campbell] lived and worked, he may claim against a defendant in negligence.... He may also claim in conspiracy.... Finally, [Campbell] may claim pecuniary, non-pecuniary, and punitive damages for the commission of these torts.” Babin also rejected Campbell’s contention that “his lawsuit cannot be maintained in Canada because no court in any province would be able to assert personal jurisdiction over all the defendants.... This assertion rests on the completely false advice that no defendant can be sued in a province in which it employs any person. The reverse is actually true....”
In reply, Campbell supported his motion with a declaration from his counsel, who stated: “After this court imposed a stay on Campbell’s action, my office attempted contact with more than twenty personal injury attorneys in Canada. Only two of the attorneys that were contacted ever returned the calls, one of which was a specialist in auto accident cases. The only attorney with asbestos experience explained that while Campbell could theoretically file an action in Canada, it would almost certainly fail because of an inability to obtain jurisdiction over all the defendants named in this action.”
On October 3, 2007, the trial court denied Campbell’s motion. Four months later, on January 25, 2008, Campbell filed a second ex parte application for an order lifting the stay. The application was supported by a declaration from Canadian attorney Gordon McKinnon, who opined that under Canadian law, the most appropriate forums for Campbell’s claims were Manitoba and Ontario, as it appeared that his exposure to asbestos occurred primarily while he worked in those provinces.
McKinnon further opined that the workers’ compensation laws of Manitoba and Ontario would bar Campbell from suing several defendants in the courts of those provinces. According to McKinnon, Manitoba’s laws prohibit workers from suing employers registered with the Workers Compensation Board of Manitoba (WCB). He further stated: “The determination of whether a defendant in a civil action is immune from suit is within the exclusive jurisdiction of the WCB and is decided by the WCB on the request of any party. When the WCB determines that a right of action is removed.... The action must be forever stayed. The court is statutorily bound by the determination of the WCB and the court would be without jurisdiction to preside in an action over any of the covered defendants.”
McKinnon also asserted that the worker’s compensation laws of Ontario and other provinces contain a similar prohibition.
Following an inquiry to the WCB, McKinnon had obtained a list of entities registered as Manitoba employers while Campbell worked within the province. On the basis of this list, McKinnon opined that six of the defendants named in Campbell’s complaint, together with their subsidiaries and related corporations, would be immune from suit in Manitoba. Although McKinnon had not made a similar inquiry in Ontario, he was “satisfied that a significant number of the defendants named in Campbell’s case would be immune from suit there also.” He also believed that this conclusion applied to the other provinces.
The list identified the following entities: Canadian General Electric Company Limited, Dunlop Tire and Rubber Goods Co. Limited, Goodyear Canada Inc., The Crown Cork and Seal Co. Ltd. (registered as “Crown Metal Packaging Canada LP”), Union Carbide Canada Limited (registered as “Praxair Canada Inc”), Foster Wheeler Limited, American-Standard Products (Canada) Inc. (also known as “Wabco Standard Inc.”), Tung Sol International Limited (registered as “Cooper Industries (Canada) Inc., International Harvester Credit Corporation of Canada Ltd. (also known as “GE Capital Canada Leasing Services Inc.”), and Harcros Chemicals Canada Inc.
McKinnon referred to the following defendants: American Standard Inc., respondent Crown Cork & Seal USA, Inc. (which he identified as “Crown Cork & Seal Inc. USA Inc.”), Elementis Chemicals, Foster Wheeler Energy Corporation Limited, General Electric Company, and respondent Union Carbide Corporation.
At a hearing on January 25, 2008, the trial court denied the ex parte application. The court informed Campbell’s counsel: “The stay remains in effect and any subsequent briefing you can do by noticed motion.” After the trial court announced its ruling, defense counsel asked the trial court to set a status conference to consider dismissing Campbell’s action.
Campbell made no further request for relief from the stay. At a status conference on June 26, 2008, Campbell’s counsel stated: “Nothing has happened in Canada. The facts since we were here in January have not changed.” Respondents asked the trial court to dismiss the action under sections 583.130 and 583.410. The trial court granted the oral request, and dismissed the action. Campbell filed his notice of appeal on August 6, 2008.
DISCUSSION
Campbell contends that the trial court erred in dismissing his action. For reasons not addressed by any party in the original briefing, we agree.
Because no party addressed the appealability of the July 26, 2007 stay order or the effect of section 583.420 on the trial court’s dismissal of the action, we requested and received supplemental briefing.
A. Appealability
At the threshold, we must determine the extent to which we have jurisdiction to hear Campbell’s appeal. He challenges the July 26, 2007 order staying his action on the ground of forum non conveniens, the denials of his requests from relief from the stay, and the June 26, 2008 order dismissing his action. The July 26, 2007 stay order was appealable (§ 904.1, subd. (a)(3); Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 410), yet appellant filed no notice of appeal until August 6, 2008.
“‘If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.’ [Citations.]” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46, italics deleted.) As Campbell’s notice of appeal was filed more than 180 days after the July 26, 2007 order (Cal. Rules of Court, rule 8.104(a)), the notice was untimely with respect to the order. We therefore dismiss Campbell’s appeal insofar as it challenges the July 26, 2007 order, and limit our inquiry to his contentions regarding the remaining rulings.
B. Denial of Requests for Relief From Stay
Campbell challenges the denials of his requests for relief from the stay on two grounds. As explained below, we find neither persuasive.
“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 determining whether the alternative forum is a suitable place for the action, the court must consider a variety of factors, including whether the defendants are amenable to personal jurisdiction in the alternative forum. (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 610-612; § 410.30; Comment-Judicial Council of Cal., 14A West’s Ann. Code Civ. Proc. (2004 ed.) foll. § 410.30, pp. 486-490.) The moving party invoking the doctrine has the burden of proof on these matters. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.)
The statutory basis for the doctrine is subdivision (a) of section 410.30, which provides: “When a court upon motion of a party... 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.” As Witkin explains, “the preference is for stay rather than dismissal.” (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 380, p. 1018.) The plaintiff may obtain relief from the stay when the alternative forum “proves unsuitable” (Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 862) or deprives the plaintiff “of a fair adjudicatory process” (Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 356).
Campbell contends that the trial court improperly placed the burden of proof upon him to make this showing in connection with his requests for relief from the stay. He argues that because respondents were required to show that Canada provided a suitable forum in seeking a stay, they continued to shoulder this burden after the stay was imposed. We disagree.
Campbell also contends that respondents did not carry this burden in connection with their forum non conveniens motion. As explained above (see pt. A., ante), whether respondents initially carried this burden is outside the scope of our review, as the July 26, 2007 stay order is now final.
“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.) A pertinent factor in determining the allocation of the burden of proof is whether the party shouldering the burden has primary control over the relevant evidence. (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, § 10, p. 163; Cal. Law Revision Com. com., 29B pt. 1 West’s Ann. Evid. Code (1995 ed.) foll. § 500, p. 554.) Thus, the burden of proof is properly imposed on a party that has sole or primary control over dispositive evidence. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 35-36.)
As Campbell affirmatively requested relief from the stay, he was properly assigned the burden of showing that he was entitled to it. (Scott v. Renz (1945) 67 Cal.App.2d 428, 431 [ordinarily, with respect to motions, “the burden is on the moving party in the trial court....”]; People v. Lopez (1997) 52 Cal.App.4th 233, 251 [same].) Moreover, unlike respondents, Campbell had direct access to evidence regarding his attempt to file an action in Canada.
Campbell also suggests that his second ex parte application made a showing sufficient for relief from the stay. The crux of his argument is that (1) Canada cannot provide a suitable forum for his action unless all the defendants in his action are amenable to jurisdiction there, and that (2) McKinnon’s declaration adequately demonstrates that some defendants cannot be sued in Canada.
This contention fails, as Campbell’s showing in connection with the ex parte application was inadequate to obtain the requested relief. An ex parte application must be supported by a declaration establishing “irreparable harm, immediate danger, or [] other statutory basis for granting relief ex parte.” (Cal. Rules of Court, rules 3.1201, 3.1202.) As the trial court noted, Campbell submitted no such declaration with the application.
Moreover, McKinnon’s declaration does not establish that the defendants in question are not amenable to jurisdiction in Canada, for purposes of the forum non conveniens doctrine. Generally “[a]n alternative forum is suitable if it has jurisdiction and the action in that forum will not be barred by the statute of limitations. [Citation.] It bears emphasis that “[i]t is sufficient that the action can be brought, although not necessarily won, in the suitable alternative forum.” [Citation.] That the law is less favorable to the plaintiffs in the alternative forum, or that recovery would be more difficult if not impossible, is irrelevant to the determination whether the forum is suitable unless ‘the alternative forum provides no remedy at all.’ [Citations.]” (Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696.)
Although the trial court directed Campbell to file an action in Canada, he has never done so, and thus there has been no determination regarding the defendants’ amenability to jurisdiction there. As the trial court noted, McKinnon’s declaration addresses the defendants’ potential immunity from suit under Canadian workers’ compensation laws, not their amenability to jurisdiction. The declaration establishes only that the defendants, if sued in court, may seek a determination from the pertinent workers’ compensation board that they are immune from suit. As Campbell’s counsel acknowledged at the hearing on the ex parte application, the declaration did not show that Campbell had no remedy in Canada, and could not recover damages. As Campbell’s second ex parte application failed to show that the defendants were not subject to jurisdiction in Canada, the trial court did not err in denying Campbell relief from the stay.
In view of this conclusion, it is unnecessary to resolve the parties’ dispute regarding the first premise of Campbell’s argument, namely, that Canada can provide an adequate forum only if all the defendants are subject to jurisdiction there.
C. Dismissal
Campbell contends that the trial court erred in dismissing his action. We agree. Sections 583.130 and 583.410 accord trial courts the discretion to dismiss actions for failure to prosecute. In Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 130 (Van Keulen), the court determined that sections 583.130 and 583.410 permit a trial court to dismiss an action stayed on forum non convenience grounds. In requesting dismissal, respondents relied on these provisions and Van Keulen. As explained below, the trial court erred in granting their request.
Section 583.130 provides: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.”
Subdivision (b) of section 583.410 requires the trial court to exercise its discretion in accordance with the criteria specified in the California Rules of Court. Rule 3.1340(a) provides that an action may be dismissed under sections 583.410 through 583.430 “for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.” Section 583.420 expressly provides that an action may not be dismissed pursuant to section 583.410 until the two-year period prescribed in rule 3.1340 has elapsed (§ 583.420, subd. (a)(2)(B).)
All citations to rules are to the California Rules of Court.
Discretionary dismissal of an action pending for less than two years is therefore improper under section 583.410. (Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1430-1431 [dismissal of case pending for 23 months is erroneous under section 583.410].) Here, Campbell filed his action in January 2007. Accordingly, when the trial court dismissed his action in June 2008, the action was less than two years old.
Respondents’ reliance on Van Keulen is misplaced. There, the plaintiffs filed an action in California in October 2001, although litigation involving the same issues, the same defendant, and similarly situated plaintiffs was ongoing in Hong Kong. (Van Keulen, supra, 162 Cal.App.4th at pp. 125-126.) In December 2001, at the defendant’s request, the trial court stayed the plaintiffs’ California action on the grounds of forum non conveniens. (Id. at p. 126.) The plaintiffs did not pursue their claims in Hong Kong until February 2006. (Id. at p. 127.) In December 2006, the trial court dismissed the California action for failure to prosecute. (Id. at p. 128-129.) The appellate court affirmed. As the California action in Van Keulen was more than two years old, it fell outside the scope of the prohibition described above. Here, Campbell’s action had been pending approximately 17 months. Accordingly, the trial court erred in dismissing it.
Respondents contend that the premature dismissal is not reversible error because the ruling may be affirmed on the basis of the forum non conveniens doctrine. We disagree. Ordinarily, “[a] trial court’s order is affirmed if correct on any theory, even if the trial court’s reasoning was not correct.” (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16; see Davey v. Southern Pacific Co. (1897) 116 Cal. 325.) However, as Witkin has explained, this rule is inapplicable when the trial court’s reasoning is critical to the propriety of the ruling. (9 Witkin, Cal. Procedure (5th ed. 2009) Appeal, § 349, pp. 401-402.)
In dismissing the action under section 583.410, the trial court was obliged to weigh ten factors specified in rule 3.1342(e). (Van Keulen, supra, 162 Cal.App.4th at pp. 130-131; § 583.410, subd. (b).) In contrast, dismissal of an action on the ground of forum non conveniens requires a materially different multi-factored analysis (see Ford Motor Co. v. Insurance Co. of North America, supra, 35 Cal.App.4th at pp. 611-619), and is usually reserved for “extraordinary cases” (Archibald v. Cinerama Hotels, supra, 15 Cal.3d at p. 858). As the trial court had already ruled that this analysis favored a stay of the action over a dismissal, and it did not revisit its analysis in dismissing the action under section 583.410, the dismissal cannot be affirmed on the ground of forum non conveniens. (Zak v. State Farm Etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [“Where the record reflects that the trier of fact has not considered a theory under which the evidence is conflicting, the reviewing court cannot rely on that theory to sustain the action of the lower court.”].) In sum, the trial court erred in dismissing Campbell’s action.
Respondents also suggest that the erroneous dismissal was not prejudicial to Campbell. In our view, Campbell’s loss of a seven-month period in which to initiate an action in Canada or lift the stay cannot be regarded as harmless, as the policy favoring resolution of an action on the merits is generally preferred over the policy requiring dismissal for failure to prosecute (§ 583.130).
DISPOSITION
The order dismissing Campbell’s action is reversed, and the matter is remanded for further proceedings in accordance with this opinion. Campbell is awarded his costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.
Section 583.410 provides: “(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. [¶] (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.”