Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County No. BC362245, Tricia Ann Bigelow, Judge. Reversed with directions.
Ernest J. Franceschi, Jr., in pro. per., for Plaintiff and Appellant.
Shea Stokes Roberts & Wagner, Maria C. Roberts and Shirley A. Gauvin for Defendants and Respondents.
CROSKEY, J.
Ernest J. Franceschi, Jr., appeals a judgment dismissing his complaint against Harrah’s Entertainment, Inc., and several affiliated entities after the court granted a motion to dismiss based on forum non conveniens. Plaintiff alleges in his complaint that defendants’ advertising directed at California residents implies that all visitors are welcome to defendants’ Nevada casinos, but fails to disclose that skillful blackjack players will be ejected from the premises and excluded from other casinos. He contends his complaint seeks to vindicate the rights of California residents to be free from deceptive advertising and unfair business practices, and California is not an inconvenient forum for this litigation. Plaintiff also challenges an award of costs to defendants as the prevailing parties. We conclude that dismissal of the complaint based on forum non conveniens was error, and that the trial court in the first instance should determine whether a stay of the action would be appropriate. We therefore reverse the judgment.
The other named defendants are Harrah’s Operating Company, Inc., Desert Palace, Inc., Harrah’s Las Vegas, Inc., Rio Properties, Inc., and Harrah’s Reno Holding Company, Inc.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a complaint in November 2006, alleging that defendants own and/or operate casino hotels in Las Vegas and Reno, Nevada. He alleges that defendants advertise to California residents through television, newspaper, and radio advertisements, and billboards, and that they solicit some known “players” directly by mail, e-mail, and telephone. He alleges that the advertising implies that all California residents are welcome to gamble in defendants’ casinos, but that defendants do not intend to offer their services as advertised because they have an undisclosed policy and practice of barring skillful blackjack players from playing blackjack and/or ejecting them from the premises under threat of arrest. He alleges that defendants photograph such players without their consent and share the photographs and names of those players with other casinos, resulting in their exclusion from other casinos as well.
Plaintiff alleges counts for violation of the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and unfair competition (Bus. & Prof. Code, § 17200 et seq.). He seeks an injunction either prohibiting the alleged deceptive advertising or requiring the explicit disclosure of the alleged practice of excluding skillful blackjack players, and an award of attorney fees. Plaintiff alleges that he is a California resident and that he suffered injury and lost money or property (see Bus. & Prof. Code, § 17204), but he does not seek a monetary recovery, apart from attorney fees.
Defendants removed the case to federal court in December 2006, but the federal district court remanded the case in April 2007. Defendants moved to quash the service of summons based on lack of personal jurisdiction in April 2007. The court continued the hearing on the motion for 60 days and allowed limited discovery on jurisdictional issues. Defendants renewed their motion to quash in August 2007, and also moved to dismiss the action based on forum non conveniens. In an order filed on August 29, 2008, the trial court denied both motions. The order stated with respect to the motion to dismiss:
We judicially notice the notice of removal filed in the United States District Court for the Central District of California (Franceschi v. Harrah’s Entertainment, Inc. (No. CV 06-8237)) on December 27, 2006, and the minute order filed in the same court on March 27, 2007, granting the motion to remand. (Evid. Code, § 452, subd. (d).)
“Preliminarily, the Court finds that the moving papers do not establish in what way the forum is inconvenient for Harrah’s, such that substantial prejudice would result. The claims, despite Harrah’s contentions, do not relate solely to its alleged practices of excluding advantage blackjack players from its Nevada casinos, but rather the incongruity of that practice with the advertising i[t] purposefully disseminates amongst citizens and residents of the forum state in order to entice them to travel to Nevada. The further contention of Harrah’s that the case should be governed by Nevada law is similarly poorly taken. A simple perusal of the complaint informs the Court, that the relief being sought is authorized under California Civil Code § 1700 [sic], and California Business & Professions Code § 17200. The Court also notes that there is a strong public interest on the part of California and its citizens in having its laws against unfair business practices enforced against foreign parties who advertise out of state services within the state. Ultimately, the burden is on Harrah’s to establish that California is a seriously inconvenient forum. Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1463-1464. It is a burden they do not carry especially in light of the strong public interest in litigating the matter in California.”
Defendants petitioned this court for an extraordinary writ on September 24, 2007, challenging the denial of both motions. They argued with respect to the motion to quash that plaintiff failed to establish a basis for the exercise of specific personal jurisdiction. They argued with respect to the motion to dismiss that all of the pertinent records and all witnesses, other than plaintiff, were located in Nevada; that to litigate this action in California would be seriously inconvenient to witnesses, the parties, and the court; that plaintiff had conceded that Nevada law applied; and that California had no interest in adjudicating a dispute concerning plaintiff’s alleged expulsion from casinos in Nevada. Plaintiff did not file, and we did not request, a preliminary opposition.
We judicially notice the petition for writ of mandate or other relief filed on September 24, 2007, in Harrah’s Entertainment, Inc. v. Superior Court (B202325). (Evid. Code, § 452, subd. (d).)
We filed an order on October 17, 2007, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, stating our intention to issue a peremptory writ of mandate in the first instance directing the trial court to vacate its denial of the motion to dismiss based on forum non conveniens and enter a new order granting that motion. We stated: “the facts are not related to California and there is no public interest in the regulation of casinos located out-of-state.
“Nevada clearly is the more convenient forum in that the purported ‘secret casino policy’ to bar skilled blackjack players is practiced, if at all, solely in Nevada. Moreover, the evidence, including percipient witnesses, video surveillance and other gambling records, is located in Nevada. We therefore conclude litigation involving the practices of gaming establishments located in Nevada and subject to the laws of Nevada belongs in Nevada.”
We conferred upon the trial court the power and jurisdiction to vacate the order denying the motion to dismiss and enter a new order granting the motion. We stated that if the trial court did not vacate its prior order, the parties could file an opposition and a reply to the petition.
Plaintiff asked the trial court not to vacate or modify its prior order, so as to allow plaintiff the opportunity to file an opposition in the Court of Appeal. The trial court filed a signed order on October 23, 2007, stating:
We judicially notice plaintiff’s written request filed on October 19, 2007. (Evid. Code, § 452, subd. (d).)
“The Court has read and considered the Remittitur filed October 17, 2007 from the Court of Appeal.
“The Court has also read and considered Plaintiff’s Request that this Court Decline to Modify it’s [sic] Order Denying Defendants’ Motion to Dismiss for Forum Non Conveniens in Order to Provide Plaintiff the opportunity to Submit Briefing in the Court of Appeal.
“The Court denies Plaintiff’s Request.
“The Court Order entered on August 29, 2007 denying the motion to dismiss is ordered stricken and is vacated.
“The case is dismissed pursuant to the doctrine of Forum Non Conveniens.
“Case is ordered dismissed.”
In light of the trial court’s new order, we dismissed the petition.
Defendants filed a memorandum of costs in November 2007, seeking an award of $13,119.26 in costs. Plaintiff moved to tax costs. The court filed an order on December 20, 2007, granting in part the motion to tax costs and awarding costs in the amount of $4,905.07. Plaintiff timely appealed the judgment.
A signed order of dismissal is a judgment. (Code Civ. Proc., § 581d.)
CONTENTIONS
Plaintiff contends (1) Nevada is not a suitable forum for this litigation because Nevada has no equivalent to California’s Consumer Legal Remedies Act or unfair competition law; (2) consideration of the private and public interests at stake supports the trial court’s original conclusion that California is the more appropriate forum; and (3) the trial court had no discretion to dismiss this action by a California resident in these circumstances and could only stay the action, so the dismissal and award of costs were error.
DISCUSSION
1. Doctrine of Forum Non Conveniens
Forum non conveniens is an equitable doctrine that allows a trial court to decline to exercise jurisdiction if the action may be more appropriately and justly tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) The doctrine in codified in Code of Civil Procedure section 410.30, subdivision (a), which states: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any condition that may be just.”
A court ruling on a motion to stay or dismiss an action based on forum non conveniens engages in a two-step analysis. First, as a threshold matter, it must determine whether there is a suitable alternative forum. (Stangvik, supra, 54 Cal.3d at p. 752 & fn. 3.) A forum other than California is suitable if and only if the defendant is subject to jurisdiction in that forum, the statute of limitations in that forum would not bar the action, and the action would be adjudicated by an independent judiciary respecting due process of law. (Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 711 (Boaz).) The fact that the law of another forum is disadvantageous to the plaintiff or that the forum does not provide a remedy available in California does not make such a forum unsuitable. (Stangvik, supra, at pp. 753-754 & fn. 5, 764; Boaz, supra, at p. 711.) The determination of the suitability of an alternative forum is a question of law subject to de novo review. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436.)
Plaintiff’s contention that Nevada is not a suitable forum is groundless.
The second step is to consider the private interests of the parties and the public interests in litigating the case in California. (Stangvik, supra, 54 Cal.3d at p. 751.) “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. [Citations.]” (Ibid.)
The plaintiff’s choice of a California forum is entitled to great weight, particularly if the plaintiff is a California resident. (Stangvik, supra, 54 Cal.3d at pp. 754-755.) The fact that the law of another forum is less favorable to a litigant than California law is not a valid consideration in balancing the private and public interests, and carries no weight. (Id. at pp. 754, fn. 5, 764.) The decision whether to grant the motion based on the balancing of private and public interests is a discretionary decision, subject to review for abuse of discretion. (Id. at p. 751.)
A trial court has the discretion to dismiss, rather than stay, an action by a California resident based on forum non conveniens only in extraordinary circumstances. (Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 858 (Archibald).) Archibald rejected the argument that a trial court has the discretion to dismiss an action by a California resident based on forum non conveniens in any “case in which the foreign forum is very much more convenient.” (Ibid.) Instead, Archibald stated, an action by a California resident may be dismissed based on forum non conveniens only if “California cannot provide an adequate forum or has no interest in doing so.” (Id. at p. 859, fn. omitted.) Archibald cited as an example a case in which California was determined to be an inadequate forum “because California could not obtain jurisdiction over indispensable parties.” (Id. at p. 859, fn. 5.) Archibald also cited examples of cases where California had no interest in providing a forum for the litigation because no party was a California resident or the plaintiff was only a nominal California resident suing on behalf of foreign beneficiaries or creditors. (Id. at p. 859 & fn. 6.) Archibald reversed an order dismissing the complaint and held that the trial court in the first instance should exercise its discretion to determine whether to stay the action. (Id. at pp. 860, 862, 865.)
“Because a court which has dismissed a suit cannot thereafter protect the interests of the litigants, we have consistently held that except in extraordinary cases a trial court has no discretion to dismiss an action brought by a California resident on grounds of forum non conveniens. In Goodwine v. Superior Court [(1965)] 63 Cal.2d 481, 485, we said that ‘A determination that a plaintiff is domiciled here would ordinarily preclude granting the defendant’s motion for dismissal on the ground of forum non conveniens.’ Thompson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 742 [59 Cal.Rptr. 101, 427 P.2d 765] observed that ‘Forum non conveniens has only an extremely limited application to a case where, as here, the plaintiff is a bona fide resident of the forum state.’ Ferreira v. Ferreira [(1973) 9 Cal.3d 824] stated that ‘in the ordinary case, the doctrine of forum non conveniens does not permit the dismissal of an action itself, as distinguished from a stay of that action, brought by a California resident.’ (9 Cal.3d at p. 837.)” (Archibald, supra, 15 Cal.3d at p. 858, fn. omitted.) Defendants argue that these authorities are no longer an accurate statement of the law in light of the 1986 amendment to Code of Civil Procedure, section 410.30, subdivision (a). It is true that an amendment to Code of Civil Procedure section 410.30, subdivision (a) enacted in 1986 superseded this line of authority for a period of time, but it was repealed by its own terms on January 1, 1992, and is no longer in effect. (Stats. 1986, ch. 968, § 4, p. 3347; Beckman v. Thompson (1992) 4 Cal.App.4th 481, 487-488.)
2. The Dismissal Was an Abuse of Discretion
Defendants do not challenge plaintiff’s allegation that he is a California resident. Thus, the trial court had no discretion to dismiss an action by a California resident absent extraordinary circumstances, as discussed above.
Defendants did not argue and have not shown that an indispensable party cannot be subject to personal jurisdiction in California or that California cannot provide an adequate forum for any other reason. Although defendants argued that California has no interest in providing a forum for litigation involving what they characterize as an attempt to regulate Nevada’s gaming industry, they did not argue and have not shown that plaintiff is not a California resident or that he is suing on behalf of foreign beneficiaries or creditors. Accordingly, defendants failed to show that California has no interest in providing a forum in the sense stated in Archibald, supra, 15 Cal.3d at page 859. Defendants failed to offer any other evidence or argument of any other extraordinary circumstances to justify a dismissal.
Defendants’ characterization of the complaint is inaccurate. In our view, the complaint seeks to regulate defendants’ advertising directed at California residents. The complaint seeks an injunction either prohibiting the alleged deceptive advertising or requiring the explicit disclosure of the alleged practice of excluding skillful blackjack players. It does not seek damages for, or an injunction against, the alleged exclusionary practice.
We therefore conclude that the trial court had no discretion to dismiss the action based on forum non conveniens and that the dismissal was an abuse of discretion. We are aware that our present conclusion, reached after full consideration of the appellate briefs and record, is contrary to the views expressed in our prior Palma notice. We decline plaintiff’s request that this court weigh the private and public interests and decide whether California or Nevada is the more appropriate forum. The appropriate remedy is to reverse the judgment so the trial court may, in the first instance, determine whether a stay is appropriate. (Archibald, supra, 15 Cal.3d at pp. 860, 862.) The trial court should exercise its discretion in light of the facts demonstrated by this record and the applicable legal principles and without regard to the views expressed in our prior Palma notice, which is of no effect.
Our reversal of the judgment means that there is no prevailing party (see Code Civ. Proc., § 1032, subd. (a)(4)) and no basis for an award of costs at this time. A reversal sets the matter at large as if there had been no judgment and automatically vacates an award of costs incidental to the judgment. (Monson v. Fischer (1933) 219 Cal. 290, 291; Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1388.)
DISPOSITION
The judgment is reversed with directions to the trial court to vacate its order granting the motion to dismiss based on forum non conveniens and enter a new order denying the motion to dismiss. The trial court is directed to consider such further evidence and argument as it deems appropriate and to rule on the motion to stay the action based on forum non conveniens. Plaintiff is entitled to recover his costs on appeal.
We Concur: KLEIN, P. J., KITCHING, J.