Opinion
2d Civil No. B162979.
10-15-2003
KEVIN A. GIRARD et al., Plaintiffs and Appellants, v. HILTON INTERNATIONAL COMPANY, Defendant and Respondent.
Lee & Goddard and Bradley A. Patterson for Plaintiffs and Appellants. Clausen Miller and Kathleen E. Bailey for Defendants and Respondents.
Three United Airlines employees were injured in an automobile accident in South Korea. The accident occurred while they were en route from the Seoul Hilton hotel to the airport in a hotel van. Upon the employees return to California, they filed a personal injury action against Hilton International Company (HIC) in Los Angeles Superior Court. The trial court stayed the action on the ground of forum non conveniens and directed appellants to file suit in Seoul, South Korea. We affirm.
FACTS
Site of Accident and Residence of Parties
Appellants were members of a United Airlines flight crew. Robert Bredin was a captain, Kevin A. Girard a first officer, and Gina D. Kim a flight attendant. The crew had completed a flight from Los Angeles to Seoul and were housed at the Seoul Hilton. The following day they were transported from the hotel to the Kimpo airport in a hotel van. En route, the van was involved in an automobile accident and appellants were injured.
Bredin, the captain and sole California resident, declined medical treatment in South Korea and was treated in California. He lost two months of work due to an unspecified injury and has since retired. Girard, the first officer, was the most seriously injured. He sustained bleeding in his brain and was treated in South Korea and released. Girard received additional medical treatment elsewhere in the United States and his pilots license was revoked due to his injury. Kim was treated in both South Korea and the United States. She lost an unspecified amount of time from work due to a back injury. Only Bredin is a California resident. Girard and Kim allege jurisdiction because they work from "crew bases" at Los Angeles International Airport, where their flights originate. The record does not indicate their home states.
Contractual Agreements
1) CDL and Hilton International Company
CDL Hotel Korea, Ltd. (CDL) owns the Seoul Hilton Hotel. In December 1977, CDL entered into a contract with Hilton International Company (HIC) in which HIC agreed to manage the Seoul Hilton Hotel. The agreement was drafted in English and performed in Seoul.
Although the parties agree that CDL entered into the contract with HIC, the agreement reflects that the contracting parties are HIC and what appears to be "Daewoo Triad Development Company, Ltd."
2) United Airlines and Seoul Hilton
In September 1999, the Seoul Hilton entered into an agreement with United Airlines (United) to house and transport United personnel between the hotel and airport. It was signed by representatives from United and the Seoul Hilton Hotel. The contract was drafted in English and performed in Seoul. The Seoul Hilton agreed to carry insurance naming United as an additional insured and to indemnify United for claims arising from injury to its flight personnel.
3) CDL and Limousine Company
In April 2000, CDL contracted with Hilton Limousine, Inc. (limousine company) for transportation services for hotel guests. It has not been established whether the limousine company is affiliated with the Seoul Hilton or is a separate entity. The manager of the Seoul Hilton submitted a declaration stating that the limousine company is an independent South Korean corporation with no relationship to HIC. The vehicle in which appellants were riding is owned by CDL and bears the name, "Seoul Hilton."
The CDL limousine company contract was drafted in Korean and performed in Seoul. An English translation has been included in the record. According to the contractual terms, the limousine company undertook responsibility for injury to passengers resulting from vehicle operation and agreed to indemnify CDL for any claims against it. The parties also agreed that any disputes would be resolved where CDL was located (South Korea).
4) Insurance Contract
CDL was insured by Dongbu Insurance Company, Ltd. The record contains an English translation of a letter to CDL from Dongbu Insurance. The letter lists medical claims paid by Dongbu Insurance for the treatment of Girard and Kim. There was no claim for Bredin because he declined treatment. The letter noted that "In the event of a request for an additional claim, compensation is possible per automobile comprehensive insurance general provisions."
PROCEDURAL HISTORY
Upon their return to California, appellants filed a personal injury action against Hilton Hotels Corporation in Los Angeles Superior Court. Using a Judicial Council form complaint, they checked the boxes for "Motor Vehicle" and "Personal Injury." Appellants alleged that Hilton Hotels Corporation "negligently hired, retained, trained, supervised, and/or contracted with the driver of the motor vehicle involved in the collision that is the subject of this lawsuit." They claimed lost wages, lost employment benefits, medical expenses, emotional distress and general damages.
Appellants subsequently learned that Hilton Hotels Corporation manages Hilton hotels domestically, but the international Hilton hotels are managed by HIC. Appellants dismissed Hilton Hotels Corporation from the action and substituted HIC as a Doe Defendant. HIC is a Delaware Corporation whose principal place of business is New York. The parties agree that HIC is "qualified" to transact business in California. Appellants did not amend their complaint to state a contract cause of action, nor did they allege they were claiming benefits under the United/Seoul contract.
HIC moved to dismiss or stay the action on the ground of forum non conveniens. Among other contentions, HIC alleged that it bore no contractual liability to appellants, reciting the terms of the contracts between United and the Seoul Hilton; CDL and HIC; CDL and the limousine company; and CDL and Dongbu Insurance. In their opposition, appellants alleged that HIC was liable for their injuries under the terms of the United/Seoul Hilton contract. They contended that HIC owed them a duty of care, which it breached by failing to provide safe transportation.
The trial court denied the motion to dismiss and indicated that its tentative ruling was to deny the motion to stay. The court took the matter under submission and subsequently stayed the action. It conditioned its stay on HICs agreement submit to jurisdiction in South Korea. The trial court concluded that HIC had shown South Korea to be a suitable alternative forum and had overcome the presumption in favor of appellants choice of forum. The court indicated it had relied on the evidence set forth in HICs moving papers to reach its decision. HIC is the sole respondent on appeal.
DISCUSSION
Contentions of the Parties
Appellants contend that South Korea is an inconvenient forum and the matter should instead be tried in California. On appeal, the parties present extensive analysis concerning the contracts and their applicability to the tort action. We observe, however, that appellants did not allege a contract cause of action in their complaint nor are they parties to United/Seoul Hilton contract. The circumstances giving rise to their injuries occurred in South Korea, and the United/Seoul Hilton contract was performed there.
HIC argues that appellants should proceed against CDL, the limousine company, its driver and Dongbu Insurance, all of whom are located in South Korea. HIC notes that it was not a signatory to the United/Seoul Hilton contract, nor did it employ the limousine company or the driver. In addition, HIC contends, appellants causes of action for negligent hiring and negligent operations lie against CDL and the limousine company, thus only South Korea has jurisdiction to hear their claims.
According to HIC, important third-party witnesses and documents are located in South Korea: the driver, investigating officers and medical personnel. The documentary evidence includes the accident report, medical records and the claims paid by Dongbu Insurance for the treatment of Kim and Girard. HIC argues that it cannot prosecute an indemnity action against the limousine company or driver in California because neither party is subject to personal jurisdiction here. For this reason, HIC cannot compel the driver or other third-party witnesses to give depositions or trial testimony in California. As to HICs final assertion, we note that if South Korea has a discovery process similar to ours, witnesses could be deposed there. The transcripts could be translated into English for use in the California forum.
In support of its motion, HIC submitted the declaration of a South Korean attorney who alleged that, under the substantive and procedural laws of South Korea, appellants could pursue their civil tort and related actions there. He declared that South Korea has special laws for proceeding against the operators of motor vehicles.
Forum Non Conveniens
Under the equitable doctrine of forum non conveniens, a court may decline to exercise its jurisdiction to hear a case if it may be more appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) The doctrine has been codified in Code of Civil Procedure section 410.30, subdivision (a), which provides, "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."
When ruling on a forum non conveniens motion, the trial court engages in a two-step analysis. First, it must determine whether there is a suitable alternative forum. If the court determines that the forum is suitable, it moves onto the second prong and weighs the private interests of the litigants against the public interest in keeping the case in California. (Stangvik v. Shiley, Inc., supra, 54 Cal.3d at p. 751; Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1186-1188.)
1) Suitability of Alternative Forum
"`[T]he doctrine of forum non conveniens presupposes the existence of at least two forums in which all defendants are amenable to process." (American Cemwood Corp. v. American Home Assurance Co. (Cemwood) (2001) 87 Cal.App.4th 431, 438.) A forum is suitable if it has jurisdiction to hear the matter and no statute of limitations bars hearing the case on the merits. (Roulier v. Cannondale, supra, 101 Cal.App.4th at p. 1186.) The moving party bears of the burden of proof. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751; Roulier, at p. 1186.) Suitability of a forum is a legal question which we review de novo. (Roulier, at p. 1186; Cemwood, at p. 436.) By contrast, the trial courts balancing of the competing interests is subject to the courts discretion. (Cemwood, at p. 436.)
Appellants and HIC are amendable to jurisdiction in both California and South Korea. California is a suitable forum because HIC consented to Californias jurisdiction when it answered the complaint, and thus made a general appearance. (Code Civ. Proc., § 1014; Neihaus v. Superior Court (1977) 69 Cal.App.3d 340, 345.) South Korea is also suitable because HIC has agreed to submit to jurisdiction there. There is no evidence that the statute of limitations has run against appellants claim in either forum. Under our de novo review, we conclude that the trial court correctly ruled that South Korea is a suitable alternative forum. We note that CDL, the limousine company and driver are not subject to jurisdiction in California. Any claims against them must be litigated in South Korea.
2) Balancing of Public and Private Interests
If the trial court concludes that the alternative forum is suitable, "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 v. Shiley Inc., supra, 54 Cal.3d at p. 751; Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 412.) Appellants argue that their burden of traveling to South Korea is greater than the HICs burden to defend in California and claim that deference should be given to their choice of forum. Both parties agree that HIC is "qualified" to transact business in California. Appellants also allege that it was foreseeable that Hilton would be sued in California for employee injuries because HIC undertook to insure against injury in its contract with United.
When the plaintiff is a resident of a forum state, his choice of forum is presumed to be convenient. However, this presumption is not conclusive, and can be overcome by evidence that the alternative jurisdiction is a more convenient place for trial. (Piper Aircraft Company v. Reyno (1981) 454 U.S. 235, 255-256, fn. 23; Stangvik v. Shiley Inc., supra, 54 Cal.3d at pp. 755-756.) The private interests to be balanced by the court include 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.]" (Stangvik, supra, at p. 751 [California court stayed action brought by foreign plaintiff, thus retaining jurisdiction should further orders become necessary].)
The trial court indicated that it had based its decision to stay the California action on 21 factors cited by HIC in its moving papers. Among the private factors it considered were personal jurisdiction over third party witnesses, their amenability to process in California and the location of the accident site. The trial court also considered the public interests at stake. To allow this action to proceed in a California forum is to risk a multiplicity of lawsuits, given that appellants action appears to be inextricably linked to the conduct of the limousine driver. As appellants themselves state, if HIC seeks to bring an indemnity action against CDL, the limousine company or driver, it may only pursue these claims in South Korea. We observe that, if HIC is found to be liable for the actions of the limousine company (which may or may not be affiliated with HIC), the contracts between CDL and the limousine company become relevant to appellants litigation.
Appellants claim that litigation in South Korea would be unduly burdensome. They argue that medical witnesses who provided the most extensive treatment are in California and cannot be compelled to travel to South Korea. Critical to Girards damage action is the expert testimony of an FAA expert concerning the reasons for the revocation of Girards pilots license. Appellants further contend the testimony of the police officer, owner of the limousine company and the hotel manager are unnecessary because none of these witnesses have firsthand knowledge of the accident.
We disagree with appellants assertions. They can obtain the deposition testimony of witnesses who are unwilling to travel. A determination of HICs liability would require factual findings concerning the nature of the accident and the conduct of the driver. The factors of ease of access to proof and the availability of compulsory process weigh in favor of South Korea as the proper forum.
Although appellants claim certain rights under the United/Seoul agreement, they are not parties to the contract, which was not executed or performed in California. The only connection this matter has with California is that one appellant resides here and the remaining two are based at Los Angeles International Airport. The most seriously injured crewmember with the greatest stake in the litigation (Girard) is not a California resident. California has little interest in adjudicating tort or related claims that have almost no connection to this state.
Stay vs. Dismissal
"[I]t has long been the rule (except for a brief period from 1986 until 1992) that an action brought by a California resident may not be dismissed on grounds of forum non conveniens except in extraordinary circumstances." (Century Indsemnity Co. v. Bank of America, supra, 58 Cal.App.4th at p. 411, fn. omitted; see also Stangvik v. Shiley, supra, 54 Cal.3d at p. 756; Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 858-859.) The rationale is that a dismissal completely deprives the court of jurisdiction over the action. (Century Indemnity Co., at p. 411.)
Prior to 1986, a line of California Supreme Court cases established that a dismissal (as distinguished from a stay) is precluded when the plaintiff is a California resident. (Beckman v. Thompson (1992) 4 Cal.App.4th 481, 487.) In 1986, section 431.30 was amended to permit a court to dismiss or stay an action even if a party is a California resident. The amendment contained a sunset provision and was repealed by its own terms in 1992. The law now stands as it did before 1986: a dismissal is flatly precluded when the plaintiff is a California resident. (Id. at pp. 487-488.)
The trial court has considerably wider discretion to grant a stay than a dismissal. (Piper Aircraft Company v. Reyno, supra, 454 U.S. at p. 237; Archibald Cinerama Hotels, supra, 15 Cal.3d at p. 860.) When a court grants a stay under Code of Civil Procedure section 410.30, it retains jurisdiction of the case and may order the action resumed if the plaintiff is denied a prompt trial in the alternative forum. (Ferreira v. Ferreira (1973) 9 Cal.3d 824, 841.) It may also stay an action by a California resident when its finds the foreign forum preferable. (Century Indemnity Co. v. Bank of America, supra, 58 Cal.App.4th at p. 411.) "`If the foreign action is unreasonably delayed or fails to reach a resolution on the merits" the staying court may resume proceedings in the home forum. (Archibald, at p. 857.) This protects the interests of the California resident while the matter is pending in the foreign court. (Ibid.) We review the trial courts order staying the action for an abuse of discretion.
Here, the trial court found that South Korea was a more convenient forum. By granting a stay, the court has retained jurisdiction over the California action and may order it resumed if appellants are denied due process in South Korea. This ruling allows appellants lawsuit and any related claims to be litigated in a single forum. The trial court correctly stayed the California action. We need not address appellants remaining arguments.
The judgment is affirmed. Costs on appeal are awarded to Hilton International Corporation.
We concur: GILBERT, P.J. and YEGAN, J.