Opinion
H023657.
11-4-2003
BENJAMIN CAPLAN, et al., Plaintiffs and Appellants, v. BARRY BOYCE, d.b.a. GALAPAGOS TRAVEL, et al., Defendants and Respondents.
Appellant Benjamin Caplan was injured after he fell over a cliff while playing soccer on Santiago Island in Ecuador. Benjamin was participating in a tour of the Galapagos Islands aboard a vessel, which was owned by respondents Jacinto Hojas (Hojas) and Marchena Tour S.A. (Marchena). Respondent Barry Boyce doing business as Galapagos Travel (GT) was the tour operator. Together with his parents, Louis Caplan and Brenda Caplan, Benjamin brought an action for maritime negligence, negligence, and breach of contract of carriage. The trial court granted GTs motion for summary judgment and entered judgment in its favor. The trial court also granted Hojas and Marchenas motion to quash service of summons and dismissed the action. For the reasons stated below, we affirm.
I. Motion for Summary Judgment
A. Statement of Facts
GT is a sole proprietorship with its place of business in Aptos, California. GT is the tour operator that arranged the December 17 — 30, 1998 tour that the Caplans and their five sons took to the Galapagos Islands. The tour included a cruise on the 16-passenger yacht San Jacinto as well as the services of a naturalist guide and a tour leader. The Caplans, residents of Massachusetts, purchased the tour through a travel agent, All Gold Travel, in Illinois. The Caplans did not receive tickets. The only evidence of travel was the invoice from GT to All Gold Travel.
Hojas, a resident of Ecuador, is the manager of Marchena. Marchena operates two vessels, including the San Jacinto, for trips to the Galapagos Islands. Marchena, through Hojas, selected and paid the crew. Neither GT nor Boyce owned or had any financial interest in the San Jacinto. GT submitted a proposed itinerary for each trip to Hojas, who would then submit it to the Park Service for approval. Playing soccer was not included on the printed itinerary for the tour.
There is no merit to appellants claim that GT hired and fired crew members or mandated that repairs and improvements be made. The communications between GT and Hojas indicate that GT would relay complaints from tour leaders and participants about various aspects of the crews performance and the condition of the vessels. On some occasions, GT indicated that it would not continue to charter a vessel unless Hojas replaced incompetent personnel or made necessary repairs.
Robert Nawojchik was the tour leader on the December 17-30 tour. His duties included giving daily lectures about natural history, providing instruction about photography during nature walks, acting as a liaison between tour participants and the suppliers of services, such as Hojas, and assisting tour participants with trip logistics, such as airport procedures, flight transfers, and ground transportation. Nawojchik also regularly gave safety warnings to passengers. GT hired Nawojchik as an independent contractor, and paid him a flat fee for his services. No taxes or other deductions were taken from his check. Nawojchik determined the substance of his lectures.
Jorge Campoverde was the naturalist guide on the December 17-30 tour. The naturalist guides were licensed by the Ecuadorian Ministry of Agriculture and the Galapagos National Park, and were legally responsible for escorting visitors on the Galapagos Islands. Their duties included providing wildlife interpretation, determining where visitors could go on the island, and enforcing other National Park rules. GT paid the naturalist guides and was reimbursed by Hojas. Naturalist guides were under the sole control of the captain of the vessel.
On December 24, 1998, members of the crew of the San Jacinto invited passengers to participate in a soccer game the next day on Santiago Island. According to Jonathan Caplan, Campoverde included soccer on the list of activities for the following day. On December 25, 1998, Campoverde, most of the crew, the tour participants, and Nawojchik went ashore. The group walked up a short trail on the landward side of the flat area where the crew was planning to play soccer. The lava field was relatively flat with the ocean in the distance on one side and sloping hills on the other side. While the group was standing in the lava field, Campoverde gave a general orientation talk about the island. After he finished his talk, Benjamin, Jeremy, and Jonathan Caplan, another tour participant, and eight crew members remained on the field to participate in a soccer game. Campoverde led the remaining tour participants to the fur seal grotto. Nawojchik did not ascertain the safety of the soccer field.
The Caplans were not aware that there was a steep cliff at one edge of the soccer field. The field was very slippery. Shortly after the game began, Benjamin ran to retrieve the ball. As he approached the edge of the field, he was unable to stop. Benjamin fell 10 to 20 feet to the beach below and sustained various injuries.
According to Jeremy, "[b]efore we started to play soccer, we, the passengers, were briefed as to where the usual, unmarked boundaries were, such as tree here to there. There was no announcement made about the actual limits of the field. At no time was there a discussion or mention of the dangers of the field or the cliff, nor was the cliff ever visible from any vantage point."
B. Discussion
1. Standard of Review
"Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo." (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4th 826, 843.)
"Neither does summary judgment law in this state any longer require a defendant moving for summary judgment to conclusively negate an element of the plaintiffs cause of action [] ... All that the defendant need do is to show [] that one or more elements of the cause of action ... cannot be established by the plaintiff. In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action — for example, that the plaintiff cannot prove element X []. Although he remains free to do so, the defendant need not himself conclusively negate any such element — for example, himself prove not X []." (Aguilar, supra, 25 Cal.4th at pp. 853-854, citations and quotation marks omitted.)
The party moving for summary judgment bears "the burden of persuasion" that there are no triable issues of material fact and that the moving party is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850.) The moving party also "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.)
"There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof []." (Aguilar, supra, 25 Cal.4th at p. 850.) "[I]f a defendant moves for summary judgment against such a plaintiff, he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not — otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact []." (Id. at p. 851.)
2. Maritime Negligence
The first amended complaint states a cause of action for maritime negligence. It alleges that GT conducted itself in such a manner that it assumed the duties of a carrier. It further alleges that GT breached its duty by failing to warn Benjamin of the hazardous conditions of the field, by scheduling a soccer match at a hazardous location, and by failing to take reasonable precautions in the use of the field.
"[A] carrier owes its passengers the highest degree of care." (Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 86.) GT would be liable for maritime negligence as a carrier if it owned the San Jacinto or if its charter of the San Jacinto was a demise charter. Here Hojas, not GT, owned the yacht. We consider then whether GT was a demise charterer.
"To create a demise the owner of the vessel must completely and exclusively relinquish `possession, command, and navigation thereof to the demisee. [Citations.] It is therefore tantamount to, though just short of, an outright transfer of ownership. However, anything short of such a complete transfer is a time or voyage charter party or not a charter party at all." (Guzman v. Pichirilo (1962) 369 U.S. 698, 699-700.)
"A demise is to be distinguished from a time or voyage charter, in which the owner of the vessel `retains the possession, command, and navigation of the ship. [Citation.] ... `If the charter party let the entire vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he is considered as owner pro hac vice for the voyage or service stipulated, so that the charterer, not the owner, is responsible for the negligence of the crew." (Federal Barge Lines, Inc. v. SCNO Barge Lines (1982) 547 F.Supp. 457, 459.)
Here Hojas charged GT a flat fee for his yacht, the captain, the crew, and the naturalist guide. Hojas, through his captain, retained complete possession and control over the operation and navigation of the San Jacinto and its crew. Thus, GT is not liable as a carrier for the negligence of the crew, and the trial court properly granted GTs motion for summary judgment as to this cause of action.
Appellants claim that the trial court did not consider whether GT was a carrier under maritime law is incorrect. At the hearing on the motion for summary judgment, the trial court indicated in its tentative ruling that GT had no contract of carriage, was not a carrier, and did not operate the yacht or control the crew. In its amended order, the trial court specifically stated that GT "did not own, operate, manage or control, ... the owner of the yacht, its crew, including the Naturalist Guide, or the Tour Leader."
However, appellants assert that there are material issues of fact as to whether GT operated, managed, or controlled the San Jacinto. We disagree.
Appellants first state that GT was the only company identified in its literature and in the trip application. However, GT never stated that it owned or operated the San Jacinto in any of its written material. Moreover, GT stated in its limitations of liability provision that it was acting only as "an agent for the owners and suppliers providing means of transportation, accommodation, meals, tours, and/or all related travel services." Nor did GT hold itself out as the carrier when it referred to the tour as "our tour" or "our trip." These references indicate that GT arranged the tour, not that it owned or controlled the suppliers of services to the tour.
In its promotional materials, GT states the following: "We do about 2 trips a month — most of them spend 11 days in the Galapagos, while a few actually spend 2 full weeks in the islands. The trips are educationally-oriented and are accompanied by a Tour Leader/Biologist in addition to a local Naturalist Guide. [¶] Our trips are different from most, for several reasons: [¶] 1. Most important is that we allow you to maximize and get the most out of a once-in-a-lifetime adventure and travel experience. Our Workshops provide an in-depth orientation to the islands beyond the scope of most `vacation-type tours. [¶] 2. We spend a longer time in the islands than most tour groups. ... [¶] 3. In addition to the legally-required Naturalist Guide, we provide a Tour Leader/Biologist who gives daily lectures on natural history. The Guides role is to escort people on shore, to provide some wildlife interpretation, and to make sure the rules of the National Park are enforced. ... [¶] 4. Our two daily island visits are longer (2-3 hours each) than most tours. ..."
GT also advertises as follows: "GALAPAGOS TRAVEL has the exclusive use of two 16 passenger motor yachts — the 80 ft. SAN JACINTO, and her younger sister, the 92 ft. SAN JOSE. ... Each boat carries a crew of 9, including the captain, first mate, engineer, 2 sailors, 2 cooks, a waiter/cabin steward, and a university-level Naturalist Guide."
Appellants next assert that GT "directed and controlled the itinerary, including all shoreside excursions and, in particular, the soccer game during which Benjamin was injured." GT submitted an itinerary for its tour to Hojas and the Galapagos National Park for approval. The soccer game was not included on GTs itinerary. In any event, the purpose of a charter is to be able to set the itinerary. A charterer does not become the owner or carrier by establishing the itinerary. (Assistance, Inc. v. Teledyne Industries, Inc. (1974) 37 Cal.App.3d 644, 649.)
Appellants also claim that GT exercised substantial control over the crew and the operation of the San Jacinto. They assert that GT handled "all problems involving equipment and personnel which arose during the tour." The record does not support this assertion. Correspondence between GT and Hojas established that GT relayed complaints from tour participants or tour leaders to Hojas and indicated that Hojas should resolve these issues relating to personnel or maintenance. A tour operator, who reports maintenance or service problems to a supplier, requests or even demands that they be fixed, does not subject itself to liability under a theory that it is controlling or operating the supplier. (Assistance, Inc. v. Teledyne Industries, Inc., supra, 37 Cal.App.3d at p. 649.)
Appellants maintain that GT held itself out as providing the tour leader and naturalist guide. While GT hired the tour leaders as independent contractors, Hojas hired and was responsible for paying the naturalist guides. The naturalist guides, not the tour leaders, led the tour participants on land as required by Ecuadorian law.
Appellants reliance on Chan v. Society Expeditions, Inc. (9th Cir. 1997) 123 F.3d 1287, is misplaced. In Chan, the plaintiffs were injured while they were transported in a Zodiac boat from the cruise ship to an atoll in French Polynesia. (Id. at p. 1289.) The Chan court held that the tour operator, Society, was liable for plaintiffs injuries, because Society had issued a contract of carriage or passenger ticket to tour participants in which it specifically identified itself as the carrier and owner and operator of the ship. (Id. at p. 1291.) Moreover, Society directed and controlled the Zodiac boats during the cruise. Society selected the Zodiac drivers, and ensured that they were properly trained. (Id. at pp. 1291-1292.) The court stated: "Societys liability stems not from its role as charterer and the attendant liability admiralty law places on certain types of charterers, but from its role as carrier and the duties imposed on carriers by traditional contract principles." (Id. at p. 1293.) Here there was no contract of carriage in which GT identified itself as the carrier and owner and operator of the San Jacinto.
3. Negligence
Appellants have stated a cause of action for negligence in which they allege that GT breached its duty to warn tour participants of any harm known to them and unknown to tour participants, to refrain from inviting the tour participants to play soccer in a hazardous area, and to require them to remain with the naturalist guide.
A tour operator has no duty to a tour participant, who is injured during independently operated shore excursions or independently operated ground tours. (See Connolly v. Samuelson (D. Kan. 1987) 671 F.Supp. 1312, 1317-1318; Lavine v. General Mills, Inc. (N.D. Ga. 1981) 519 F.Supp. 332, 335-336.) Here the crew of the San Jacinto organized the soccer game. GT did not offer the game as an optional event for the tour. (See also Honeycutt v. Tour Carriage, Inc. (W.D.N.C. 1996) 997 F.Supp. 694, 699 [tour operator not liable for fall from horse during ride not included in tour]; Barber v. Princess Hotels Intern., Inc. (App.Div. 1987) 520 N.Y.S.2d 789, 790 [hotel not liable for fall during ride unrelated to hotel].) Similarly, a tour operator has no duty to a tour participant, who falls on property owned or controlled by an independent entity. (See Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 88 [airline not liable for fall in airport terminal]; Loeb v. U.S. Dept. of Interior (E.D.N.Y. 1992) 793 F.Supp. 431, 437 [fall near lodge in national park]; Stafford v. Intrav, Inc. (E.D. Mo. 1993) 841 F.Supp. 284, 287, 288 [tour operator not liable for fall on cruise vessel].) Here GT did not own or control Santiago Island. Since appellants have failed to establish the element of duty, the trial court properly granted GTs motion for summary judgment on the cause of action for negligence.
Since we have concluded that GT did not owe a duty to appellants as to the first two causes of action, we need not consider the issues of whether the cliff was an open and obvious danger or the effect of the limitations of liability and assumption of risk provisions in the trip applications.
4. Breach of Contract of Carriage
Appellants alleged that GT breached its implied contract with Louis and Brenda Caplan by failing "to provide a safe and properly supervised cruise and tour." However, as previously discussed, GT was not liable for conduct by the carrier.
II. Motion to Quash
A. Statement of Facts
Hojas is a citizen of Ecuador, who resides in Guasmo Norte Guayaquil, Ecuador. Hojas is the manager of Marchena, which was incorporated in December 1992. Marchena owns and operates two vessels, including the San Jacinto, for trips to the Galapagos Islands.
In 1991, Hojas met Boyce in Ecuador when he hired a vessel for a cruise of the Galapagos Islands. In 1991, Hojas also met Boyce in San Juan Bautista, California, where they discussed chartering the San Jacinto. Subsequently, Marchena received reservations for tour dates from GT. Neither Marchena nor Hojas ever solicited customers in California. In February 1993, Hojas purchased vessel parts in Sausalito, California. In 1993, Hojas opened a bank account at the Bank of Santa Clara and instructed Boyce to use this account for making payments. This bank account was closed in March 2000. Hojas met with Boyce in California in mid-1996. In April 1998, Hojas traveled to California.
At the hearing on the motion to quash, the trial court found that Hojas made six or seven trips to California between 1991 and 2000, including two trips during which he met with Boyce. On appeal, appellants claim that Hojas made 13 trips to California. However, they cite to evidence of the number of trips Hojas made to the United States.
At the hearing on the motion to quash, the trial court stated: "Now, the court has considered various law in this area, cases that counsel have cited, to determine whether or not there is either general or unlimited personal jurisdiction over the defendants, or limited jurisdiction based on the contact, and whether or not theres been an exclusive representation by the defendants in the U.S. by Boyce and his travel agency located in California, taken into account the visits that the defendants have made to California, considering also, however, that it is the time of the incident, that is December 98, that is controlling in determining whether their minimum contacts exist at the time that the cause of action arose or not. [¶] I have also considered the bank accounts in I believe it was Santa Clara, the two accounts at that bank, and the address change in 1995 to an address in Ecuador, and then apparently the opening of a second account in March, although again that is not a relevant time, looking at the contacts. [¶] Ive looked at the advertising materials and sales, if any, that passed between the defendants and Mr. Boyce, the pamphlets, the correspondence between them, thats mails and faxes, and it appears that there were discussions regarding an exclusive agency relationship based on some of these correspondence. However, it appears that these were negotiations and, and no actual contract or agreement was reached, based on the state of the evidence, the purchases that were made. The provisions for the boats do not seem to be substantial enough to establish the minimum contacts needed, nor the bank accounts or correspondence." The trial court then granted the motion to quash the service of summons and dismissed the action.
B. Discussion
When a nonresident defendant challenges jurisdiction, it is the plaintiffs burden to establish facts that would "`justify the exercise of jurisdiction." (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 903.) Where the plaintiff meets the burden of establishing minimum contacts with the forum state, then the defendant must show that the exercise of jurisdiction would be unreasonable. (Ibid.)
In reviewing an order quashing service of summons, the factual findings of the trial court will be binding on appeal if supported by substantial evidence. (Malone v. Equitas Reinsurance Ltd. (2000) 84 Cal.App.4th 1430, 1435.) However, when there is no conflict in the evidence, the question of jurisdiction is legal and thus subject to de novo review. (Vons Companies, Inc. v. Seabest Foods, Inc. (Vons) (1996) 14 Cal.4th 434, 449.)
A California court may "exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (Code Civ. Proc., § 410.10.) This statute "manifests an intent to exercise the broadest possible jurisdiction," limited only by constitutional considerations of due process. (Sibley v. Superior Court (1976) 16 Cal.3d 442, 445.) In accordance with the Due Process Clause of the federal Constitution, a court may exercise personal jurisdiction over a non-resident defendant "only where the defendant has certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (Secrest Machine Corp. v. Superior Court (1983) 33 Cal.3d 664, 668, internal quotation marks and citations omitted.) "The defendants conduct and connection with the forum State must be such that the defendant should reasonably anticipate being haled into court there." (Sher v. Johnson (9th Cir. 1990) 911 F.2d 1357, 1361, internal quotation marks omitted.)
A court may assert general jurisdiction over a non-resident defendant when the defendants activities in the forum state "are substantial ... continuous and systematic." (Vons, supra, 14 Cal.4th at p. 445, internal quotation marks and citations omitted.)
Here the record establishes that Hojas came to California on four occasions between 1991 and 1998. On one occasion he opened a bank account and on two other occasions he met with Boyce to discuss the San Jacinto. He also purchased vessel parts. Payments by GT for the charters were deposited in the bank account in California. Since this conduct was not "substantial &# 8230; continuous and systematic" (Vons, supra, 14 Cal.4th at p. 445), appellants failed to establish that respondents contacts with California were sufficient to justify the exercise of general jurisdiction.
Appellants contend, however, that GT, a California resident, was the agent for Hojas. They rely on an August 9, 1991 memo from Boyce to Hojas in which he states that he is happy "to have the possible opportunity of exclusively representing" his yachts in the United States and a statement by Boyce that the "San Jacinto is represented by GALAPAGOS TRAVEL." Hojas also sent pamphlets to GT when they were negotiating whether GT would be the exclusive representative of Hojas.
"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295.) An agency can be created by an express contract, authorization, or ratification. It can also be implied from the circumstances. (2 Witkin, Summary of Cal. Law (9th ed. 1987) §§ 36-40, pp. 49-53.)
In the instant case, the trial court found, and appellants concede, that there was no express contract creating an agency. Appellants also failed to establish that Hojas authorized GT to act as his agent or that Hojas ratified any acts by GT acting as his agent. Thus, this theory does not support the exercise of jurisdiction over Hojas and Marchena.
Appellants reliance on Empire Steel Corp. v. Superior Court (1961) 56 Cal.2d 823, is misplaced. In that case, a nonresident corporation formed a wholly owned subsidiary, which was a California corporation. After the plaintiff entered into a contract with the California corporation, the California corporation breached it. The nonresident corporation caused its California subsidiary to enter into the contract with the plaintiff while the subsidiary was insolvent but appeared to be financially responsible. Based on the nature and quality of the nonresident corporations acts, the reviewing court held that the exercise of jurisdiction was proper. Empire Steel did not involve an agency relationship.
However, a court may exercise specific jurisdiction over a nonresident defendant under certain circumstances. Our Supreme Court summarized federal law in this area, stating that a nonresident defendant "still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits, and the controversy is related to or arises out of a defendants contacts with the forum ... [¶] [or] has purposefully directed his or her activities at forum residents, or who has purposefully derived benefit from forum activities, or purposefully avail[ed himself or herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." (Vons, supra, 14 Cal.4th at p. 446, internal quotation marks and citations omitted.) Jurisdiction has also been found when the nonresident defendant "deliberately has engaged in significant activities with a State or has created continuing obligations between himself and residents of the forum." (Ibid.)
Here Hojas and Marchena entered into contracts in which they provided a vessel and crew for tours organized by GT, a California resident. They were in regular communication with GT regarding these contracts. They also maintained a bank account in California for the purpose of receiving payment for the charters. Thus, in forming a substantial economic connection with this state through its commercial relationship with GT, Hojas and Marchena have "purposefully derived benefit from forum activities." (Vons, supra, 14 Cal.4th at p. 447.)
We next consider whether appellants claims are related to or arises out of defendants contacts with California. "[A]s long as the claim bears a substantial connection to the nonresidents forum contacts, the exercise of specific jurisdiction is appropriate. The due process clause is concerned with protecting nonresident defendants from being brought unfairly into court in the forum, on the basis of random contacts. That constitutional provision, however, does not provide defendants with a shield against jurisdiction when the defendant purposefully has availed himself or herself of benefits in the forum." (Vons, supra, 14 Cal.4th at p. 452.) Here respondents entered into contracts to provide a vessel and crew for a tour organized by a California resident. Appellants allege that respondents breach of their duty of care during the tour of Santiago Island caused their injuries. Thus, there is a substantial connection between appellants claims and their contacts with California.
Respondents reliance on Fisher Governor Co. v. Superior Court (1959) 53 Cal.2d 222, is misplaced. In that case, the plaintiffs sued non-resident Fisher Governor Corporation (Fisher). The causes of action for personal injuries arose in Idaho, the alleged defective Fisher equipment was not sold in this state, none of the plaintiffs were California residents, and the causes of action were unrelated to Fishers business in California. Fishers only contact with California was through the sales activities of independent sales agents in California. The court held that there were insufficient contacts to assert jurisdiction. In contrast to Fisher, here respondents had more contacts with California and the causes of action were related to their business in this state.
A partys contact with the forum state must also be considered in light of other factors to determine whether the exercise of personal jurisdiction would be reasonable under all the circumstances. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 476-478.) Since a court must presume an otherwise valid exercise of personal jurisdiction is reasonable, a non-resident defendant "must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional." (Id. at p. 477.) Where there are no evidentiary disputes, our review of reasonableness is de novo. (Vons, supra, 14 Cal.4th at p. 476.)
"A determination of reasonableness rests upon a balancing of interests: the relative inconvenience to defendant of having to defend an action in a foreign state, the interest of plaintiff in suing locally, and the interrelated interest the state has in assuming jurisdiction. [Citation.] The factors involved in the balancing process include the following: `the relative availability of evidence and the burden of defense and prosecution in one place rather than another; the interest of a state in providing a forum for its residents or regulating the business involved; the ease of access to an alternative forum; the avoidance of a multiplicity of suits and conflicting adjudications; and the extent to which the cause of action arose out of defendants local activities. [Citations.]" (Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 591.)
Reviewing these factors, we conclude that respondents have met their burden of establishing that the exercise of jurisdiction would not be reasonable. Here appellants are residents of Massachusetts. Jeremy and Jonathan, who are potential witnesses, are also residents of Massachusetts. Darren Rivers, a resident of Washington, also participated in the soccer game. Nawojchik is a resident of Connecticut. Other witnesses include the six to eight crew members of the San Jacinto and Campoverde, who are residents of Ecuador. Thus, none of the witnesses, who were present when the accident occurred, are residents of California. More importantly, the site of the accident is in Ecuador. Appellants argue that the field has little bearing on the issue of the failure to warn of the hazardous condition. However, the photographs in the record on appeal indicate that the cliff was an open and obvious danger. A viewing of the site itself might establish otherwise. Thus, this factor weighs very strongly in favor of conducting the trial in Ecuador. Moreover, since appellants are Massachusetts residents, California has little, if any, interest in providing a forum for them. In exercising jurisdiction, a California court would be providing a forum for nonresidents for an injury that occurred outside the state. There is also an alternative forum for the instant action. Respondents counsel submitted a declaration to which he attached information regarding the judicial system in Ecuador, that is, that it provides an independent judiciary with free and public trials, due process guarantees, and appellate provisions. Respondents have also offered to waive any applicable statutes of limitations. In addition, upholding the trial courts ruling would not result in multiple suits and conflicting adjudication, since GT is no longer a party to the action. Finally, the instant action arose out of activities that occurred in Ecuador. Accordingly, the trial court properly granted the motion to quash service of summons.
III. Disposition
We affirm the judgment and the order dismissing the action.
WE CONCUR: Elia, Acting P.J. and Bamattre-Manoukian, J.