Opinion
A149262
06-21-2018
UTZ CLAASSEN, Plaintiff and Appellant, v. SOLAR TRUST OF AMERICA, LLC; SOLAR MILLENNIUM, INC., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG12615788)
Appellant Utz Claassen (Claassen) briefly served as chairman of the board of directors for Solar Millennium AG (SMAG), a German corporation that controlled the two respondents here, Solar Millennium, Inc. (Solar Millennium) and Solar Trust of America, LLC (Solar Trust) (together, the Solar Trust defendants), Delaware entities that were developing solar power projects in California and Nevada. After Claassen's resignation, he brought suit in California against SMAG, one of its board members, and the Solar Trust defendants, alleging that they engaged in a campaign of false and defamatory statements in the press about him and his resignation, resulting in damage to his reputation and his career. Shortly thereafter, the Solar Trust defendants filed for bankruptcy in Delaware, resulting in an automatic stay of this litigation as to those defendants. Claassen and the bankruptcy trustee eventually entered into a stipulation lifting the stay and permitting his claims to go forward in California, but the Solar Trust defendants then moved to stay or dismiss this action on the grounds of forum non conveniens, arguing in favor of a German forum. The trial court granted a stay in order to permit Claassen to seek relief from the bankruptcy court to pursue his claims in Germany, but after the bankruptcy trustee indicated it would not stipulate to any lifting of the stay and would oppose jurisdiction in Germany, Claassen did not do so. The trial court then granted the motion to dismiss. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
SMAG is a German corporation whose business is the development of solar power plants for the production of electricity. SMAG indirectly owns Solar Millennium, which in turn owns 70 percent of Solar Trust. Both Solar Millennium and Solar Trust are organized under Delaware law with their principal places of business in Alameda County, California. SMAG, through Solar Millennium, formed Solar Trust in August of 2009 in order to develop solar power facilities in California and Nevada.
Claassen is a German citizen who has held a number of high-level management positions for various companies. In 2009, Claassen was approached by Hannes Kuhn (Kuhn), a co-founder and board member of SMAG, about joining SMAG's board of directors. Claassen ultimately agreed to do so, and became the chairman of the SMAG board of directors on January 1, 2010.
According to Claassen, upon arrival at SMAG he "found that SMAG and Solar Trust were not the companies that Kuhn had made them out to be" during their negotiations. In particular, Claassen alleged that a business plan he had been shown before he was hired contained misleading and inaccurate financial information concerning the key aspects of SMAG's California power plant projects. Shortly after he joined the company, Claassen was allegedly presented with a " 'real' " business plan which "implied dramatically worse prospects for the companies than Claassen had been led to believe." Eventually, unable to convince SMAG to address the issues he had identified, Claassen resigned effective March 15, 2010.
Claassen alleges that Kuhn and the Solar Trust defendants then "went on the attack, initiating a press campaign aimed at denigrating [him], at blaming him and not Defendants for the problems that had led to his resignation, and at diverting attention from Defendants' mounting difficulties in a variety of arenas." Claassen identifies various SMAG press releases and quotes from Kuhn and others in news articles and other publications which he alleges are false and defamatory, and have resulted in damage to his reputation as a corporate executive.
In February of 2012, Claassen sued SMAG and the Solar Trust defendants in Alameda County, alleging two causes of action based on California law, and six on German law. Two months after the initial complaint was filed, on April 2, 2012, the Solar Trust defendants filed for bankruptcy in Delaware, resulting in an automatic stay of this litigation as to them. SMAG initiated its own insolvency proceedings in Germany, and in 2013 Claassen dismissed SMAG from this action after receiving a public apology. In March of 2013, a liquidating trust (the Trust) was established to manage the remaining assets of the Solar Trust defendants, and Walker, Truesdell, Roth & Associates, Inc. (the Trustee) was appointed as trustee and represented by counsel (Pepper Hamilton LLP).
In December of 2010 and again in April of 2012, in response to a letter from counsel for Solar Trust threatening litigation, Claassen brought reverse declaratory relief actions against Solar Trust and other defendants in the regional court of Hanover, Germany, seeking a declaration that the defendants had no claims against him.
While this action was stayed against the Solar Trust defendants, Claassen amended his complaint to name Kuhn as an individual defendant. (See Claassen v. Kuhn (Jul. 31, 2015, No. A138840) 2015 WL 4593787, at pp. *1-*2, *5 [nonpub. opn.].) After being served in London, Kuhn made a special appearance to argue that he was not subject to the trial court's specific jurisdiction. The trial court granted Kuhn's motion to quash service, Claassen appealed, and we affirmed. (See Claassen v. Kuhn, supra, 2015 WL 4593787 at p. *1.)
While that appeal was pending, in January 2015, Claassen and the Trustee entered into a stipulation agreeing to lift the bankruptcy stay with respect to Claassen's claims against the Solar Trust defendants in this action, while also limiting any recovery to the proceeds of certain general insurance policies with Travelers Property Casualty Company of America (Travelers). The United States Bankruptcy Court for the District of Delaware approved the stipulation and ordered the stay lifted on January 13, 2015. In March, Claassen filed a second amended complaint against the Solar Trust defendants only, noting that the action had been dismissed as to Kuhn but that Claassen's appeal of that dismissal was pending before this court.
The second amended complaint brought six causes of action under California law, and two under the German Civil Code.
In April of 2015, the Solar Trust defendants, represented by counsel engaged by Travelers, entered a special appearance and moved to quash service of the summons, arguing that Claassen's service of the complaint was defective, that the Solar Trust defendants were not subject to general or specific jurisdiction in California, and that the case should be dismissed on forum non conveniens grounds in favor of an alternative forum in Germany. The trial court continued the motion in order to allow the parties to conduct jurisdictional discovery on the issues presented.
After discovery, the Solar Trust defendants filed supplemental briefing in support of their motion, abandoning their defective service argument but continuing to argue that the trial court did not have specific or general jurisdiction over them and that the case should be dismissed on forum non conveniens grounds in favor of an alternate forum in Germany. In support, the Solar Trust defendants included the expert declaration of Dr. Jochen Lehmann, who opined that the German courts would have jurisdiction over Claassen's claims and that those claims would not be barred by the statute of limitations. In support of his opposition, Claassen attached the expert declaration of Dr. Sebastian Melz, who opined to the contrary that Germany was not a suitable alternative forum for Claassen's claims.
After a hearing, the trial court issued an order denying the motion to quash and staying the action based on the doctrine of forum non conveniens. The trial court found that the defendants were subject to general jurisdiction in California as their principal place of business, and therefore denied the motion to quash for lack of personal jurisdiction. The trial court then weighed the parties' expert declarations, concluding that Dr. Lehmann was more credible and thus finding that Germany would have jurisdiction over Claassen's claims and that those claims would not be barred by the statute of limitations. The trial court then addressed the bankruptcy stay:
"Instead, it appears that the parties' only real dispute concerning the suitability of Germany as an alternative forum—what plaintiff refers to in his supplemental opposition as the 'elephant in the room'—is the automatic stay resulting from the U.S. bankruptcy proceedings. Plaintiff urges that Germany is not a suitable forum if a bankruptcy stay applies, but cites no authority for this position. Moreover, the trustee in the solar defendants' bankruptcy lifted the stay as to plaintiff's claims against the solar defendants in California (limited to the proceeds of a certain insurance policy). There is no credible argument that plaintiff would not be able to obtain the identical relief from stay in order to pursue identical claims in Germany against the same policy. Such relief is routinely granted when it would have no impact on the bankruptcy estate.
"The court finds, based on Dr. Lehmann's declaration, that the solar defendants have met their burden to show that Germany is a suitable alternative forum in that Germany would have jurisdiction over the defendants, a lawsuit in Germany would not be barred by the statute of limitations, and there is no basis to conclude that Germany would provide 'no remedy at all' for the plaintiff's claims (the only potential impediment being that he has not taken the steps necessary to obtain relief from the bankruptcy stay in order to maintain suit there). (Stangvik, supra, 54 Cal.3d at p. 764.)"
The trial court went on to weigh the public and private interest factors relevant to the forum non conveniens analysis, concluding that they weighed in favor of Germany, and characterizing the action as one "by a German executive against his former German employer, and alleging that the employer made defamatory statements about the plaintiff in Germany, in the German language, and which caused damage to plaintiff's professional reputation which exists almost entirely in Germany and other parts of Europe." The trial court indicated it would "stay the litigation against the defendants conditionally, pending application by the plaintiff for relief from the bankruptcy stay in order to proceed with this litigation in Germany on the same terms as relief was granted to pursue litigation in California." The trial court also ordered the parties to file a joint statement "regarding the status of those efforts" within 30 days.
The parties filed the requested joint status report on July 20, 2016. In it, Claassen indicated that subsequent to the trial court's order, the Trustee had "unequivocally stated in writing that the Trust will not agree to lift the plan injunction to permit Mr. Claassen to sue the Solar Defendants in Germany," and had further "stated that he will oppose jurisdiction over the Solar Defendants in Germany, particularly because, in his view, the Trust could be 'held directly responsible for the fees and costs associated with any such litigation.' " Claassen also argued that the trial court's order improperly functioned as a mandatory injunction requiring him to petition the bankruptcy court for relief to which he was opposed. The Solar Trust defendants argued that whether or not the Trustee would stipulate to lift the stay and even whether the stay would prevent Claassen from bringing his claims in Germany were irrelevant, because the court had "already ruled that specially-appearing defendants' motion to dismiss for forum non conveniens should be granted."
The status report attached a declaration from Claassen's counsel in turn attaching the letter from the Trustee, apparently written in response to an attempt by counsel for the Solar Trust defendants to obtain the Trustee's consent to lift the bankruptcy stay.
A status conference was held on August 12, 2016. The trial court indicated to Claassen's counsel that "[t]his is a status conference to see whether you took your opportunity to obtain relief from stay from the bankruptcy court, and you didn't do that. So I'm thinking it's time to dismiss." The trial court appeared to be of the view that the Trustee's objection was irrelevant, because the decision as to whether or not the stay would be lifted would ultimately be made by the bankruptcy judge. When presented with the Trustee's objection to jurisdiction in Germany, the trial court asked counsel for the Solar Trust defendants whether it was his position that jurisdiction would not be proper in Germany, and he replied "No." At the conclusion of the hearing, the trial court granted the motion to dismiss. This appeal followed.
DISCUSSION
On appeal, Claassen challenges the trial court's suitability finding on several grounds, arguing that the Solar Trust defendants cannot simultaneously object to jurisdiction in Germany and argue that Germany provides a suitable alternative forum; that there is no precedent for dismissal over the moving defendant's objection to jurisdiction in the proposed alternative forum; that requiring Claassen to petition the bankruptcy court for relief he did not want was unauthorized by law and unconstitutional; and that the trial court's conditional stay impermissibly reversed the burden of proof on a forum non conveniens motion. The Solar Trust defendants focus their arguments regarding suitability on the parties' competing expert declarations, arguing the trial court properly found their expert to be more credible and that the trial court properly took judicial notice of German statutes showing that Claassen's claims can be brought in Germany. A. Applicable Law
Claassen also argues that California is not a seriously inconvenient forum compared to Germany, and that the private and public interest factors in the forum non conveniens analysis do not strongly favor Germany.
Together with their brief, the Solar Trust defendants filed a request for judicial notice of: (1) the May 22, 2012 first amended complaint against SMAG and Kuhn; (2) the website for Spiegel, a German publication; and (3) a December 5, 2016 final decree from the United States Bankruptcy Court for the District of Delaware in the Solar Trust bankruptcy. The request does not comply with California Rules of Court, rule 8.252(2)(A)-(D), and accordingly we deny it.
Forum non conveniens, codified in California at Code of Civil Procedure section 410.30 , 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." (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).)
Code of Civil Procedure section 410.30 provides in relevant part: "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." (§ 410.30, subd. (a).)
"In determining whether to grant a motion based on forum non conveniens, a 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." (Stangvik, supra, 54 Cal.3d at p. 751.) "Only if it finds the alternative forum suitable does the court proceed to the discretionary exercise of balancing the private interests of the litigants and the interests of the public in retaining the action in California." (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436 (Cemwood), citing Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1037 (Chong).) The initial determination whether the alternate forum is suitable is nondiscretionary. (Cemwood, supra, at p. 436; Chong, supra, at p. 1036; Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 132 (Shiley).) "The defendant has the burden of proof in a forum non conveniens motion." (Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1186 (Hahn).) The question of whether the alternative forum is suitable is a legal issue we review de novo. (Cemwood, supra, at p. 436.)
As a general matter, an alternative forum is suitable if there is jurisdiction and no statute of limitations bar to hearing the case on the merits. (Shiley, supra, 4 Cal.App.4th at p. 132, Chong, supra, 58 Cal.App.4th at pp. 1036-1037; see Stangvik, supra, 54 Cal.3d at p. 752; Cemwood, supra, 87 Cal.App.4th at pp. 436-437.) "[A] forum is suitable where an action 'can be brought,' although not necessarily won." (Shiley, at p. 132; see Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 711 ["But a forum is suitable if the defendant is amenable to process there, there is no procedural bar to the ability of courts of the foreign jurisdiction to reach the issues raised on their merits (or, if there is, the advantage of the bar—typically, the statute of limitations—is waived by defendants), and adjudication in the alternative forum is by an independent judiciary applying what American courts regard, generally, as due process of law"].) "It is well settled under California law that the moving parties satisfy their burden on the threshold suitability issue by stipulating to submit to the jurisdiction of the alternative forum and to waive any applicable statute of limitations." (Hahn, supra, 194 Cal.App.4th at p. 1190.) B. Analysis
i. The Bankruptcy Stay Precludes a Finding That Germany is Suitable
As both parties acknowledge on appeal, Claassen's claims cannot proceed to judgment on the merits in Germany unless and until the automatic bankruptcy stay is lifted. (See 11 U.S.C. § 362, subd. (a)(1) [filing bankruptcy petition operates as a stay of "the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title"].) In its decision staying this action, the trial court found that "[t]here is no credible argument that plaintiff would not be able to obtain the identical relief from stay in order to pursue identical claims in Germany against the same [insurance] policy" and that "[s]uch relief is routinely granted when it would have no impact on the bankruptcy estate." We disagree, and in any event we conclude that the trial court should have conclusively resolved the issue of the bankruptcy stay before dismissing this action.
In its order, the trial court did note that Claassen had provided no authority for the proposition that "Germany is not a suitable forum if a bankruptcy stay applies." As the parties do not dispute on appeal, we conclude that an automatic bankruptcy stay is the sort of "procedural bar to the ability of courts of the foreign jurisdiction to reach the issues raised on their merits" that renders a foreign forum unsuitable. (Boaz v. Boyle & Co., supra, at p. 711.)
Before the status conference, Claassen offered evidence suggesting that he would not be able to obtain relief from the bankruptcy stay in order to bring his claims in Germany. According to a declaration submitted by Claassen's counsel, counsel for the Trustee had represented that the Trustee would not agree to any lifting of the stay in order to permit Claassen to bring his claims in Germany, which is how the stay was originally lifted to permit Claassen to proceed with his claims in California. In addition, the declaration indicated that the Solar Trust defendants had presented counsel for the Trustee with a draft stipulation and order to be filed in the bankruptcy court lifting the stay, but the Trustee had refused to sign, responding by letter that the Trustee " will not agree to lift the plan injunction applicable to the STA et al. bankruptcy case so as to allow Mr. Claassen to prosecute his tort/negligence claims against STA, SMI and others in Germany," and furthermore "will not consent to, nor agree to, jurisdiction of Mr. Claassen's claims in Germany."
In his opening brief, Claassen states that on December 5, 2016, after the trial court dismissed this action and while this appeal was pending, the Solar Trust bankruptcy terminated by final decree, and that as a result, there is no longer a bankruptcy stay to lift or a Solar Trust entity to sue in Germany, as those entities were dissolved in accordance with the confirmed bankruptcy plan. Claassen also indicates that the order that permitted Claassen to bring his claims in California remains in place, and that the bankruptcy court expressly retained jurisdiction with respect to matters arising from that order.
With respect to impact on the bankruptcy estate, counsel for the Trustee expressly objected on the basis that allowing Claassen's claims to proceed in Germany might result in the trust being "held directly responsible for the fees and costs associated with any such litigation." Again according to a declaration filed by Claassen's counsel, counsel for the Trustee explained that the German law firm representing Solar Trust in Claassen's reverse declaratory relief action had taken the position that its fee agreement was not enforceable and demanded that the estate pay significant attorney fees, based on a German statute that determines attorney fees on damages claimed and not any agreement between client and counsel. This dispute purportedly resulted in costly litigation against the estate. The Trustee was apparently worried that the estate would be exposed to similar liability should it be forced to retain German counsel to defend against Claassen's claims in Germany, which Claassen argues was not a danger in California because Solar Trust's attorney fees were being paid by Travelers and any recovery limited to the insurance proceeds.
At the status conference, the trial court appeared to assume that the bankruptcy court would grant relief from the stay even over the Trustee's objection, and that once relief from the stay was granted the Trustee's objection would be irrelevant because Travelers, through counsel, would defend the case in Germany. On appeal, the Solar Trust defendants do not squarely address the Trustee's objection, simply asserting that "[o]nce he obtains, or if he had obtained permission from the Delaware bankruptcy court, [Claassen] can commence the action in Germany" and "[Claassen] can still get permission from the bankruptcy court in Delaware and serve the German complaint on the liquidating trustee." For the reasons given above, we do not agree with the trial court's conclusion that the stay was no impediment to Claassen's bringing suit in Germany.
Moreover, the trial court should have resolved the issue of the bankruptcy stay before dismissing this action on the basis of forum non conveniens, as held by Auffret v. Capitales Tours, S.A. (2015) 239 Cal.App.4th 935. There, defendants moved to stay or dismiss on the basis of forum non conveniens in favor of an alternative forum in France; the trial court stayed the action for one year, concluding that if France accepted jurisdiction over the dispute by that time, the action would then be dismissed. (Id. at p. 938.) Defendants then initiated proceedings in France, and while the question of French jurisdiction was pending on appeal in France, moved to dismiss the California action, citing plaintiffs' failure to initiate proceedings in France themselves and their opposition to French jurisdiction. (Id. at p. 939.) The trial court dismissed the action, but the Court of Appeal reversed, holding that dismissal was premature until the issue of French jurisdiction had been resolved. (Id. at p. 941.) The court held that a "clear prerequisite" of dismissal was that jurisdiction be established in France, that it was "unclear what additional procedural obstacles may be presented to the courts in France before they agree that the controversy may be heard there," and that the trial court should require "conclusive proof" that the plaintiffs' claims would in fact be heard in France before any dismissal. (Id. at pp. 941-942.) So too here. Whether the bankruptcy court would lift the stay and allow Claassen's claims to proceed in Germany should have been conclusively resolved as a prerequisite of any dismissal.
To the extent the trial court's dismissal was based on Claassen's failure to petition the bankruptcy court to lift the stay, this too was improper. Norex Petroleum Ltd. v. Access Industries (2d Cir. 2005) 416 F.3d 146 (Norex) is instructive. In Norex, plaintiff corporation acquired a controlling interest in a Russian oil company, and alleged that the defendants attempted to take over that company through various acts of mail and wire fraud, extortion, and money laundering. (Id. at p. 151.) After extensive litigation in the Russian courts, plaintiff filed suit in the Southern District of New York, and defendants moved to dismiss on forum non conveniens grounds, arguing that Russia provided a suitable alternative forum for the parties' dispute. (Id. at pp. 152-153, 157-158.) Plaintiff argued that Russia did not provide a suitable alternative forum because the factual issues forming the crux of its claims would be deemed precluded by a default judgment entered in a previous Russian litigation. (Id. at p. 158.) Although it accepted this preclusion argument, the district court "nevertheless concluded that Russia was an adequate alternative forum because [plaintiff] could have litigated its claims in that jurisdiction if it had not let the opportunity to do so lapse." (Ibid.) The Second Circuit held this was error, and that defendants had not carried their burden to demonstrate that Russia provided a suitable alternative forum, in language applicable here: "[T]he district court did not, in fact, find a presently available Russian forum for [plaintiff] to pursue its claims against the defendants; rather it found the lack of such a forum excusable in light of [plaintiff's] own conduct. We here clarify that a case cannot be dismissed on grounds of forum non conveniens unless there is presently available to the plaintiff an alternative forum that will permit it to litigate the subject matter of its dispute." (Id. at pp. 158-159; see id. at p. 159 ["The second step of forum non conveniens analysis does not concern itself with the reason why an alternative foreign forum is no longer available; its singular concern is the fact of present availability"].) To the extent the trial court here based its dismissal in part on Claassen's failure to seek and obtain relief from the bankruptcy stay in order to pursue his claims in Germany, and thus found the lack of a suitable alternative forum in Germany "excusable in light of [Claassen's] own conduct," this was error. (Norex, supra, 416 F.3d at p. 159.) In sum, we conclude that the trial court erred in finding Germany presented a suitable alternative forum before conclusively resolving the issue of the bankruptcy stay.
ii. Defendants' Objection to German Jurisdiction Precludes a Finding that Germany is a Suitable Alternative Forum
Even if the stay were lifted or were otherwise not at issue, we are left with the Trustee's statement, through counsel, that he "will not consent to, nor agree to, jurisdiction of Mr. Claassen's claims in Germany." According to the bankruptcy plan, the Trustee is responsible for reviewing and resolving all claims filed against the Solar Trust defendants' estates. Defendants typically consent or stipulate to jurisdiction in the proposed alternative forum in order to facilitate a finding that that forum is suitable for the purposes of a forum non conveniens motion. (See, e.g., Stangvik, supra, 54 Cal.3d at p. 752; Hahn, supra, 194 Cal.App.4th at p. 1191; Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, 683; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1464; Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1188; Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1540; Chong, supra, 58 Cal.App.4th at pp. 1038-1039.) The Solar Trust defendants have not cited any authority, and we have found none, for the proposition that a court can grant a dismissal on forum non conveniens grounds where the moving defendant has not stipulated to jurisdiction in the proposed alternative forum, and in fact has expressly objected to such jurisdiction. We agree with Claassen that a defendant cannot seek dismissal on the theory that the plaintiff's claims should be heard in an alternative forum while simultaneously objecting to jurisdiction in that same forum. (See Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 473 [evidence did not support finding of a suitable alternative forum where defendant did not expressly submit to jurisdiction nor waive statute of limitations defenses].)
As noted, when counsel for the Solar Trust defendants was asked by the trial court whether it was his clients' position that there is "no jurisdiction in Germany," he answered "No." However, the Solar Trust defendants did not make any other representation below that they would consent to jurisdiction in Germany, or would agree to waive any statute of limitations defenses, nor have they done so on appeal.
In fact, the defendants in certain of the cases on which the Solar Trust defendants rely did stipulate to jurisdiction in the proposed alternative forum. (See Carijano v. Occidental Petroleum Corp. (9th Cir. 2011) 643 F.3d 1216, 1225; Hahn, supra, 194 Cal.App.4th at p. 1191; Shiley, supra, 4 Cal.App.4th at p. 130.)
In addition, the trial court erred in placing conditions on Claassen instead of on the Solar Trust defendants. Authorities approving conditional dismissals or stays on the basis of forum non conveniens have placed conditions on the defendant to facilitate bringing the plaintiff's claims in the proposed alternative forum. (See, e.g., Stangvik, supra, 54 Cal.3d at p. 750 & fn. 2 [affirming stay subject to several conditions on defendants]; Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1527-1528 [affirming stay based on defendants' stipulation to consent to jurisdiction and to toll statute of limitations]; Delfosse v. C.A.C.I., Inc.-Federal (1990) 218 Cal.App.3d 683, 692-693 [reversing dismissal where defendant did not agree to waive statute of limitations and submit to jurisdiction and remanding for trial court to deny or grant on conditions]; Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 693-694, 706 [affirming stay based on agreements by defendants including submitting to jurisdiction and waiving statute of limitations defenses]; Hahn, supra, 194 Cal.App.4th at pp. 1191-1192 [same].) The Solar Trust defendants sought to have this action stayed or dismissed, and it was their burden to demonstrate a suitable alternative forum in order to do so. (See Investors Equity Life Holding Co. v. Schmidt, supra, 195 Cal.App.4th at p. 1529.) The Solar Trust defendants no less than Claassen could have sought to lift the stay before the bankruptcy court, and in fact it appears they did unsuccessfully seek a stipulation from the Trustee to do so. Any stay should have been conditioned on the Solar Trust defendants, as the moving parties bearing the burden of proof, obtaining relief from the bankruptcy stay in order to facilitate a finding that Germany was a suitable alternative forum.
On appeal, the Solar Trust defendants focus most of their attention on the parties' competing expert declarations, arguing that their expert concluded that German courts would have jurisdiction over Claassen's claims, that they would not be barred by the statute of limitations, and that the trial court properly found their expert more credible than Claassen's expert. But there is no dispute that by operation of the bankruptcy stay, Claassen's claims cannot proceed to be heard on the merits in Germany. In addition, as discussed above, even assuming Solar Trust defendants' expert is correct that German courts would have jurisdiction and the statute of limitations poses no bar to Claassen's claims, we conclude that the Solar Trust defendants should not be permitted to simultaneously argue that Germany provides a suitable alternative forum while expressly objecting to the exercise of German jurisdiction. Because we conclude that the trial court erred in finding that Germany was a suitable alternative forum for this action, we need not reach the parties' additional arguments, including those regarding the balancing of the private and public interest factors.
In the authorities relied on by defendants in support of their argument that the court can properly find an alternative forum suitable by weighing competing expert declarations, the defendants also stipulated to jurisdiction in the alternative forum and agreed to waive any statute of limitations defenses. (See Carijano v. Occidental Petroleum Corp., supra, 643 F.3d at p. 1225; Hahn, supra, 194 Cal.App.4th at p. 1184.)
The Solar Trust defendants also briefly argue that Claassen has conceded that Germany is a suitable alternative forum because his counsel, in opposing Kuhn's motion to quash, stated that "While Germany may be a suitable alternate forum, the public and private considerations weigh in favor of California retaining jurisdiction." We do not read the statement that Germany "may" provide a suitable alternative forum as a concession regarding whether Germany is a suitable alternative forum in the context of this appeal, which is based on a different version of the operative complaint and concerns different defendants who are or were (in contrast to Kuhn) in bankruptcy.
For similar reasons, we reject the Solar Trust defendants' brief suggestion that our previous opinion establishes that "this case is subject to dismissal on grounds of forum non conveniens." Our previous opinion merely noted, as a third basis for concluding that the trial court did not abuse its discretion in denying a continuance for Claassen to conduct jurisdictional discovery, that such denial could not have been prejudicial because the trial court indicated that even if such discovery had taken place and showed Kuhn subject to jurisdiction in California, it would have granted Kuhn's motion to quash on the alternative ground of forum non conveniens. We did not purport to conduct our own forum non conveniens analysis in that appeal, which as noted involved a different defendant who was an individual not subject to any bankruptcy stay.
DISPOSTION
The order of dismissal is reversed, and the matter is remanded to the trial court to enter an order denying the motion. The parties shall bear their own costs on appeal.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.