Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. John P. Shook, Judge, Los Angeles County Super. Ct. No. BC356660.
Simon, Eddins & Greenstone, Ron C. Eddins and Brian P. Barrow for Plaintiffs and Appellants.
McKenna Long & Aldridge, William J. Sayers, Farah S. Nicol, Margaret I. Johnson and Ellen R. Hurley for Defendants and Respondents Union Carbide Corporation, Velan Valve Corporation, Crosby Valve, Inc. and R.T. Vanderbilt Company, Inc.
Knott & Glazier, Steven E. Knott, K. Eric Adair and Dustin C. Beckley for Defendant and Respondent T H Agriculture & Nutrition, LLC.
Carroll, Burdick & McDonough, James Cunningham, Laurie J. Hepler and Mary T. McKelvey for Defendant and Respondent Warren Pumps, LLC.
Kirkpatrick & Lockhart Preston Gates Ellis, Robert E. Feyder and Paul K. Stockman for Defendant and Respondent Crane Co.
Gorden & Rees, Michael Pietrykowski and Don Willenburg for Defendant and Respondent Leslie Controls, Inc.
Sinunu Bruni and James N. Sinunu for Defendant and Respondent Weir Valves & Controls USA, Inc., formerly known as Atwood & Morrill Co., Inc.
ZELON, J.
Plaintiffs Ronald and Edna Slaughter (the “Slaughters”) filed suit in Los Angeles County Superior Court against 39 named defendants, asserting claims for personal injuries arising out of Edna Slaughter’s alleged exposure to asbestos. Thirteen of the named defendants filed or joined in a motion to dismiss or stay the action on grounds of forum non conveniens. These defendants argued that California was an inconvenient forum for the action and that the case should be tried in Tennessee. The trial court granted the motion, dismissing the entire action without prejudice. On appeal, the Slaughters contend that the trial court erroneously determined that Tennessee was a suitable alternative forum and abused its discretion in balancing the private and public interests in favor of Tennessee.
We conclude that the trial court did not abuse its discretion in finding that the balance of the private and public interests weighed in favor of litigating the case in Tennessee. The trial court did err, however, in dismissing the California action rather than staying the action pending a determination as to whether all named defendants are subject to jurisdiction in Tennessee. We accordingly reverse and remand with directions to the trial court to enter a new order either (1) denying the motion to dismiss or stay the action, or (2) granting the motion to stay the action subject to certain conditions.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Factual Background
Edna Slaughter was born and raised in the Philippines. She met her husband Ronald in 1974 while he was serving in the United States Navy in Subic Bay, Philippines. While stationed in the Philippines and working as a machinist, Ronald took Edna on board the Navy ship, the USS Pyro, on three to four occasions. On many occasions, Ronald also gave Edna his clothes to wash. In October 1974, Ronald was honorably discharged from the Navy after six months of service and he returned to his hometown of Nashville, Tennessee. Edna joined Ronald in Nashville approximately six months later in April 1975. The couple married in Tennessee on April 25, 1975.
For clarity and convenience, and not out of disrespect, we refer to all Slaughter family members by their first names.
After Ronald was discharged from the Navy, he worked as a machinist at two machine shops in Nashville – Kusan and Beck & Lasco. Ronald was employed at each shop for approximately six months, and his work at each shop included the use of grinding wheels. During this time, Ronald also performed drywall work on his brother Bill’s home in Nashville, where Ronald and Edna lived for a period of time after they were married. In or about December 1975, the Slaughters moved from Nashville to McMinnville, Tennessee, where Ronald was employed at one machine shop, McMinnville Tool & Die. His work at this shop also included the use of grinding wheels, though the majority of his time was spent drafting. Edna did not work with Ronald at any of the machine shops in Tennessee. However, she was responsible for washing the family’s clothes, including Ronald’s work clothes from his various jobs as a machinist.
Ronald’s brother, Bill, currently resides in Florida.
In October 1976, the Slaughters moved to Coalinga, California. In California, Ronald worked as a plumber for Whitt Plumbing. He also performed approximately 100 side jobs, 90 percent of which involved drywall work using joint compounds. Edna assisted Ronald in 80 percent of the side jobs that he performed in California. With respect to the drywall jobs, Edna assisted Ronald by mixing dry joint compound, helping Ronald sand the compound that he applied to drywall joints, and helping Ronald clean joint compound dust from the walls and floors. Dust would get on the clothes and bodies of both Ronald and Edna when they worked with joint compounds. While living in California, Edna continued to wash all of the family’s clothes, including the clothes that Edna and Ronald wore when they performed drywall work.
After approximately 22 months in California, the Slaughters moved back to Nashville, Tennessee in July or August 1978. In Nashville, Ronald started his own business, Best Quote Maintenance Company, through which he performed various construction jobs, including work for three Lowe’s Home Improvement stores in the Nashville area. Neither Ronald nor Edna performed any work outside of Tennessee after returning to the state in 1978. Except for 22 months in California, the Slaughters spent all of their married lives in Tennessee where they raised three children.
On or about May 9, 2006, Edna was diagnosed with mesothelioma. While Edna was being treated for this disease, the Slaughters’ two adult daughters helped care for Edna at her home in Nashville. Their daughter Marta moved back to the family home in Nashville to assist with Edna’s care after the diagnosis was made, and Marta was the family member most involved with Edna’s medical care and treatment, including discussions with Edna’s physicians. Edna received all of her treatment for mesothelioma at three medical facilities in Tennessee, and all of Edna’s treating physicians and medical records were located in Tennessee. On December 31, 2006, Edna died from mesothelioma in Tennessee.
II. Procedural History
In August 2006, approximately five months prior to Edna’s death, the Slaughters filed suit in California against 39 manufacturers and distributors of alleged asbestos-containing products. The Slaughters claimed that Edna’s mesothelioma was caused by exposure to asbestos while they were living in the Philippines, Tennessee and California between 1974 and 1978. They alleged indirect exposure from Edna’s washing of Ronald’s clothes during the time he was employed as a machinist and performed side jobs involving drywall work. They alleged direct exposure from Edna’s own work with Ronald on the various drywall jobs. In their lawsuit, the Slaughters did not claim any exposure to asbestos after leaving California in 1978.
In connection with the lawsuit, Ronald was deposed about his work history, including his recollection of individuals with whom he worked in the 1970s. Ronald was unable to recall the name of any person with whom he served in the United States Navy. With respect to his work in Tennessee, Ronald recalled the names of four co-workers from the machine shop jobs that he held between 1974 and 1976. However, with the exception of one co-worker who resides in Nashville, Ronald did not know the whereabouts of any of these individuals. Ronald also was able to identify three contacts from the Lowe’s Home Improvement stores where he performed various construction jobs after returning to Tennessee in 1978, and he testified that each of these individuals was in the Nashville area. With respect to his work in California, Ronald was unable to identify the names or locations of any individuals for whom he and Edna performed drywall work in California. There were no co-workers from the various drywall jobs that Ronald and Edna performed in California because they always worked alone in these jobs.
On December 8, 2006, three of the defendants – Union Carbide Corporation, Velan Valve Corporation and Crosby Valve, Inc. – filed a motion to dismiss or stay the action on grounds of forum non conveniens. In their motion, these three defendants argued that the case should be litigated in Tennessee rather than California, and each expressly consented to jurisdiction in Tennessee. An additional 10 defendants subsequently joined in the forum non conveniens motion. None of the remaining named defendants joined in the motion, however, or otherwise consented to jurisdiction in Tennessee.
The 10 joining defendants were (1) Industrial Holdings Corporation, (2) R.T. Vanderbilt Company, Inc., (3) Leslie Controls, Inc., (4) Warren Pumps, LLC, (5) Weir Valves & Controls USA, Inc., (6) Foster Wheeler, LLC, (7) IMO Industries Inc., (8) Kaiser Gypsum Company, (9) The WM. Powell Company, and (10) Elementis Chemicals, Inc.
In their opposition to the motion, the Slaughters argued that Tennessee was not a suitable alternative forum because not all named defendants were subject to jurisdiction there. In support of their argument, the Slaughters submitted testimony from Donald Wellington, the former president of defendant Dowman Products, Inc. (“Dowman”), who had been deposed in a prior unrelated lawsuit. Mr. Wellington testified that during his employment at Dowman from 1958 to 1989, Dowman did not have any offices outside of California and Oregon. He also testified that it was unlikely that any Dowman products were distributed outside of California during his tenure with the company, though he acknowledged that he lacked personal knowledge regarding the geographical distribution of Dowman products by the company’s various dealers and distributors. Based on this testimony, the Slaughters contended that they had shown that at least one of the defendants in their lawsuit, Dowman, was not subject to jurisdiction in Tennessee.
The hearing on the forum non conveniens motion was held on December 28, 2006. At the hearing, the trial court did not make any findings on the record as to whether Dowman or any other named defendant was subject to jurisdiction in Tennessee. The trial court did find, among other facts, that the Slaughters were residents of Tennessee at the time they filed their lawsuit in 2006; the Slaughters had been residents of Tennessee since 1978; the Slaughters had spent 22 months living in California between 1976 and 1978; all of Edna’s treatment for mesothelioma was provided at three medical facilities in Tennessee; all of Edna’s treating physicians and medical records were located in Tennessee; the Slaughters’ three children were residing in Tennessee while Edna was being treated for mesothelioma; all known records relating to Ronald’s work and employment were located in Tennessee; and with the exception of one or two individuals, all known living individuals with knowledge of the Slaughters’ alleged exposure to asbestos were residing in Tennessee. At the conclusion of the hearing, the trial court granted the motion to dismiss the action on grounds of forum non conveniens and dismissed the entire action without prejudice.
Edna died three days after the trial court’s dismissal of the Slaughters’ California action, and her daughter, Analiza Slaughter Boling, succeeded to Edna’s interests in the lawsuit. Ronald and Analiza (“Appellants”) thereafter filed a timely appeal.
The following nine defendants filed respondent briefs in this appeal: (1) Union Carbide Corporation, (2) Velan Valve Corporation, (3) Crosby Valve, Inc., (4) R.T. Vanderbilt Company, Inc., (5) T H Agriculture & Nutrition, LLC, (6) Warren Pumps, LLC, (7) Crane Co., (8) Leslie Controls, Inc., and (9) Weir Valves & Controls USA, Inc. (collectively “Respondents”).
DISCUSSION
Forum non conveniens is an equitable doctrine under which a court may decline to exercise its jurisdiction to hear a case when it believes that the case may be more appropriately and justly 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, which provides, in relevant part, that “[w]hen 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.” (Code Civ. Proc., § 410.30, subd. (a).) If a court grants a stay on grounds of forum non conveniens, it retains jurisdiction over the case and may resume the proceedings if the action in the alternative forum is unreasonably delayed or fails to reach a resolution on the merits. (Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 857.) A dismissal, on the other hand, completely deprives the court of jurisdiction over the case. (Id. at pp. 857-858.) As the moving party, the defendant in a motion for forum non conveniens bears the burden of proof. (Stangvik v. Shiley Inc., supra, at p. 751.)
The California Supreme Court has articulated a two-step analysis for deciding forum non conveniens motions. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.) “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.” (Ibid.) The trial court’s first determination, whether there is a suitable alternative forum, is a “nondiscretionary determination.” (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1036; Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 131.) “There is no balancing of interests in this decision, nor any discretion to be exercised.” (Shiley Inc. v. Superior Court, supra, at p. 132.) It is a legal question subject to de novo review. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436 (American Cemwood).) The trial court’s second determination, the balancing of private and public interests, “is a task squarely within the trial court's discretion.” (Ibid.) The trial court’s balancing of interests is therefore accorded “substantial deference” on appeal and is subject to review only for an abuse of discretion. (Chong v. Superior Court, supra, 58 Cal.App.4th at p. 1037; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1464.)
I. Suitable Alternative Forum
We begin with the first step in the forum non conveniens analysis, which is whether the proposed alternative forum is a suitable place for trial. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.) An alterative forum is suitable “if there is jurisdiction and no statute of limitations bar to hearing the case on the merits.” (Chong v. Superior Court, supra, 58 Cal.App.4th at p. 1037.) “The availability of a suitable alternative forum for the action is critical.” (American Cemwood, supra, 87 Cal.App.4th at p. 435.) “‘Because of . . . [this] factor, the suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states. The same will be true if the plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant’s stipulation that he will not raise this defense in the second state [citations].’ (Judicial Council com., 14 West’s Ann. Code Civ. Proc. (1973 ed.) § 410.30, pp. 492-493.)” (Stangvik v. Shiley Inc., supra, at p. 752.) Accordingly, an action will not be dismissed unless a suitable alternative forum is available to the plaintiff. (Ibid.)
A. Jurisdiction In The Alternative Forum
Here, the principal issue on appeal is whether the moving defendants were required to prove that all other defendants are subject to jurisdiction in the alternative forum. Appellants argue that the moving defendants must meet this burden, but failed to do so here. In particular, Appellants contend that the California action should not have been dismissed because the moving defendants did not prove that all 39 named defendants were subject to jurisdiction in Tennessee and because Appellants showed that at least one such defendant, Dowman, was not subject to jurisdiction there. Respondents, on the other hand, assert that in a multi-party asbestos case such as this one, the moving defendants need not demonstrate that the alternative forum has jurisdiction over all defendants, and that it is sufficient if at least some of the defendants are amenable to jurisdiction in that forum. Respondents also argue that, even if they were required to establish that each defendant was subject to jurisdiction in Tennessee, there would be personal jurisdiction over all defendants there through the Tennessee Long-Arm Statute.
Respondents rely primarily on Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753 (Hansen), to support their argument that a defendant in a multi-party asbestos action does not have to prove that all defendants are subject to jurisdiction in the alternative forum. Hansen involved two asbestos suits brought in California against 200 named defendants. (Id. at p. 756.) One of the defendants filed a motion to dismiss or stay the actions based on forum non conveniens and argued that Montana, where the plaintiff had lived and where most of the asbestos exposure was alleged to have occurred, was a suitable alternative forum. (Id. at pp. 756-757) While the moving defendant was amenable to service of process in Montana, at least three other defendants did not consent to jurisdiction in that state and it was not known if they had sufficient contacts with Montana to subject them to jurisdiction there. (Id. at p. 758.) The trial court granted the motion to stay the California actions subject to the condition that “if after filing the actions in Montana [the plaintiff] could conclusively show Montana was not a suitable alternative jurisdiction for bringing the actions, he could return to the California court and request the stays be lifted.” (Id. at pp. 756-757.)
On appeal, the plaintiff in Hansen argued that the trial court erred in granting a stay because the moving defendant had failed to show that all other defendants were subject to jurisdiction in the alternative forum. (Hansen, supra, 51 Cal.App.4th at p. 758.) The Court of Appeal disagreed and affirmed the trial court’s ruling “because the trial court, in staying these actions as opposed to dismissing them outright, was directing appellants to bring their actions in Montana to determine whether these defendants were subject to jurisdiction there. If not, appellants could return to California and request the stays be lifted.” (Ibid.) In response to the plaintiff’s argument that the moving party must prove that all defendants are amenable to jurisdiction in the alternative forum, the Court of Appeal stated that “[i]n asbestos cases such as this, where there are 200 named defendants, it is unreasonable to expect the moving defendant to prove all defendants are subject to jurisdiction in a particular alternative forum. Given the early stage for bringing a forum non conveniens motion, it would likely be unclear in many cases whether all defendants were even subject to jurisdiction in California. Because the court here stayed the action pending a determination that all defendants are subject to jurisdiction in Montana, there was no abuse of discretion.” (Id. at p. 759.)
We note that the appellate court in Hansen reviewed the trial court's determination of suitability under the more deferential abuse of discretion standard. (Hansen, supra, 51 Cal.App.4th at pp. 758-759). Hansen thus reflects a departure from the de novo standard of review prescribed in Chong v. Superior Court, supra, 58 Cal.App.4th at p. 1036 and Shiley Inc. v. Superior Court, supra, 4 Cal.App.4th at pp. 131-132, and which we follow here. (See also American Cemwood, supra, 87 Cal.App.4th at p. 436 and Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1186 [applying a de novo standard of review to the trial court’s suitability determination]).
Appellants attempt to distinguish Hansen as a fact-driven departure from the rule that all defendants must be subject to jurisdiction in the alternative forum for the forum to be suitable. In support of their argument, Appellants rely principally on the decision in American Cemwood, supra, 87 Cal.App.4th 431. In American Cemwood, the plaintiff insured sued five insurers in California for declaratory relief and damages. (Id. at p. 434.) Two of the insurers then filed suit against the insured in British Columbia, and moved to dismiss or stay the California action in favor of the British Columbia action on grounds of forum non conveniens. (Id. at pp. 434-435.) The trial court granted the motion to stay subject to the defendants’ agreement to toll the statute of limitations, but without determining whether all five defendants were subject to jurisdiction in British Columbia. (Id. at p. 435.)
On appeal, the plaintiff in American Cemwood argued that British Columbia was not a suitable alternative forum because it was not shown that all defendants could be compelled to litigate in that forum. The Court of Appeal agreed, holding that the “failure to demonstrate that all defendants are subject to jurisdiction in [the alternative forum] precludes application of forum non conveniens.” (American Cemwood, supra, 87 Cal.App.4th at p. 440.) In reaching this holding, the Court of Appeal relied in part on the statutory language of Code of Civil Procedure section 410.30, which “speaks to whether the plaintiff should be required to bring its ‘action,’ not its claims against some particular defendant or defendants, in ‘a forum outside this state.’” (Id. at p. 437.) The court also considered the statutory purpose of Section 410.30 and concluded that “[a] rule permitting a stay or dismissal of an action over which no single alternative court could exercise jurisdiction would force the plaintiff to pursue separate actions in multiple states or countries to obtain complete relief. Such a rule, by encouraging piecemeal litigation and blossoming numbers of actions in multiple jurisdictions, would threaten precisely those considerations of convenience, economy and justice the doctrine was designed to bolster.” (Id. at pp. 438-439.)
The Court of Appeal in American Cemwood distinguished Hansen on the grounds that the trial court in Hansen “merely stayed the action pending a determination that all defendants were subject to jurisdiction in [the alternative forum],” whereas the trial court in American Cemwood did not condition its ruling on any determination regarding jurisdiction. (American Cemwood, supra, 87 Cal.App.4th at pp. 439- 440.) The court also noted that Hansen was a case with 200 named defendants while American Cemwood involved “but five defendants” so “it would not be unreasonable here to expect [the two moving defendants] to prove the three other defendants are subject to jurisdiction in a particular alternative forum.” (Id. at p. 440.)
We agree with American Cemwood that a suitable alternative forum is a forum in which all named defendants can be sued. Ordinarily, the burden is on the moving defendant to make this showing by demonstrating that all other defendants are subject to jurisdiction in the alternative forum, as was required in American Cemwood. (American Cemwood, supra, 87 Cal.App.4th at p. 440.) If this showing cannot be made in a particular case, such as in a large multi-party action like Hansen, then the action may stayed, but not dismissed, pending a determination as to whether the alternative forum has jurisdiction over all defendants. (Hansen, supra, 51 Cal.App.4th at p. 759.) Both Hansen and American Cemwood are consistent with this conclusion. Indeed, no case has held that a court may dismiss (rather than stay) an action on forum non conveniens grounds in the absence of proof that all defendants are subject to jurisdiction in the alternative forum.
In the present case, however, the trial court neither determined that all named defendants were subject to jurisdiction in Tennessee (as required by American Cemwood) nor stayed the action pending a determination that all such defendants were subject to jurisdiction in Tennessee (as required by Hansen). Instead, the trial court dismissed the action outright, and in so doing, deprived itself of continued jurisdiction over the case. The trial court’s ruling was thus inconsistent with both American Cemwood and Hansen. Absent a showing that all defendants were subject to jurisdiction in Tennessee, the trial court’s dismissal of the action constitutes reversible error.
Respondents contend that even if they must prove that all defendants are subject to jurisdiction in the alternative forum, they made such a showing here because Tennessee could exercise jurisdiction over all defendants under the state’s long-arm statute. In particular, Respondents assert that each defendant has sufficient minimum contacts with the state of Tennessee because Edna Slaughter was diagnosed and treated in Tennessee for an illness allegedly caused by exposure to defendants’ products, regardless of where those products were manufactured or distributed. But Respondents do not cite to any authority (and this court is aware of none) in which Tennessee courts have exercised jurisdiction over a non-resident defendant whose out-of-state conduct was alleged to have caused the development of an asbestos-related or other latent disease in a Tennessee resident. Accordingly, in the absence of relevant authority on this issue, it is for the Tennessee courts to decide in the first instance whether there is jurisdiction over each of the 39 named defendants in Tennessee.
The Tennessee Long-Arm Statute provides, in relevant part, that “[p]ersons who are nonresidents of Tennessee . . . and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from: [¶] (1) The transaction of any business within the state; [¶] (2) Any tortuous act or omission within this state; [¶] . . .[¶] (6) Any basis not inconsistent with the constitution of this state or of the United States.” (Tenn. Code. Ann. § 20-2-214.) Tennessee follows the minimum contacts test in assessing whether its courts may assert jurisdiction over a non-resident defendant under the Tennessee Long-Arm Statute. (Masada Inv. Corp. v. Allen (Tenn. 1985) 697 S.W.2d 332, 334.) A non-resident defendant is subject to jurisdiction in Tennessee if the defendant has sufficient minimum contacts with the state “such that “‘the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”’ [Citation.]” (Ibid.)
In theory, there could be such non-resident defendants in this case if it is established that Edna was exposed to asbestos in California by products that were manufactured and distributed by a particular defendant solely within California.
Appellants, on the other hand, contend that they have shown that at least one named defendant, Dowman, is not subject to jurisdiction in Tennessee, and thus, that Tennessee cannot be a suitable alternative forum. Appellants cite to the testimony of Donald Wellington, Dowman’s former president, to support their argument. But Mr. Wellington merely testified that during his tenure with the company, he thought it was unlikely that any Dowman products were distributed outside of California. He specifically acknowledged that he was not aware of the geographical distribution of Dowman products by the company’s various distributors, and that he lacked personal knowledge about whether those distributors would have shipped Dowman products out of state. On the basis of this evidence, we cannot determine that Dowman lacked sufficient minimum contacts with Tennessee to subject it to jurisdiction there. However, because there was no affirmative showing that all named defendants were subject to jurisdiction in Tennessee, it was error for the trial court to dismiss (rather than stay) the action on grounds of forum non conveniens.
B. Statute Of Limitations In The Alternative Forum
The availability of a suitable alternative forum depends not only on whether there is jurisdiction in the alternative forum, but also on whether the statute of limitations has run in that forum. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.) A defendant may not “‘request dismissal of an action on the ground that it should be heard in another forum when the action will likely never be heard in the other forum because it is barred by the statute of limitations there.’ [Citation.]” (Delfosse v. C.A.C.I., Inc.-Federal (1990) 218 Cal.App.3d 683, 690.) When the statute of limitations has expired in the alternative forum, the defendant must be willing to waive the statute of limitations as a condition of the court granting a motion based on forum non conveniens. (Stangvik v. Shiley Inc., supra, at p. 752; Delfosse v. C.A.C.I., Inc.-Federal, supra, at pp. 690-691.)
In Tennessee, the statute of limitations for a personal injury action arising from alleged asbestos exposure is one year. (Tenn. Code. Ann. § 28-3-104, subd. (a)(1); Wyatt v. A-Best Company (Tenn. 1995) 910 S.W.2d 851, 854.) “A personal injury cause of action accrues when the plaintiff knows, or in the exercise of reasonable care and diligence should know, that an injury has been sustained.” (Wyatt v. A-Best Company, supra, at p. 854.) In the case of asbestos exposure, the cause of action does not accrue until the asbestos-related disease has been diagnosed or reasonably could have been diagnosed. (Wyatt v. A-Best Company, supra, at p. 856-857; Potts v. Celotex Corp. (Tenn. 1990) 796 S.W.2d 678, 684.) Additionally, under Tennessee law, the filing of a lawsuit in a foreign state does not toll the statute of limitations in Tennessee. (Maestas v. Sofamor Danek Group, Inc. (Tenn. 2000) 33 S.W.3d 805, 808; Elias v. A & C Distributing Co., Inc. (Tenn.App. 1979) 588 S.W.2d 768, 772.)
In this case, Edna Slaughter was diagnosed with mesothelioma on May 9, 2006. Because the Tennessee statute of limitations was not tolled during the pendency of their California action, the Slaughters had until May 9, 2007 to file a personal injury action in Tennessee based on Edna’s alleged exposure to asbestos. As of December 28, 2006, when the trial court dismissed the California action on grounds of forum non conveniens, the statute of limitations had not run in Tennessee and was not a bar to the trial court’s granting of the forum non conveniens motion. Since the filing of this appeal, however, the limitations period in Tennessee has expired. Therefore, to the extent the trial court grants a stay of the action on remand, such stay must be subject to the defendants’ agreement to waive the statute of limitations in Tennessee.
II. Balancing Of Private And Public Interests
Because the trial court had the option of staying (as opposed to dismissing) the action pending a determination on jurisdiction, we also consider the second step in the forum non conveniens analysis, which is whether the trial court abused its discretion in balancing the private and public interests in favor of Tennessee. “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.” (Stangvik v. Shiley Inc. supra, 54 Cal.3d at p. 751.)
In ruling on a forum non conveniens motion, the court must carefully balance all relevant factors, and no one factor should determine the outcome of the motion. (Rinauro v. Honda Motor Co., LTD. (1995) 31 Cal.App.4th 506, 510.) Instead, the “private and public interest factors must be applied flexibly, without giving undue emphasis to any one element.” (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 753.) “[T]he appropriate question for the court is not whether a suit can be brought in California, but whether California has sufficient private and public interests in the action to entertain it in this state.” (Hansen, supra, 51 Cal.App.4th at p. 759.) The trial court’s determination on this issue is entitled to “substantial deference” on appeal. (Chong v. Superior Court, supra, 58 Cal.App.4th at p. 1037.)
Here, the trial court’s balancing of interests in favor of Tennessee was supported by the following facts: (1) the Slaughters were residents of Tennessee at the time they filed their lawsuit in 2006; (2) the Slaughters had been residents of Tennessee since 1978; (3) the Slaughters spent 22 months living in California between 1976 and 1978; (4) except for 22 months in California, the Slaughters spent all of their married lives in Tennessee; (5) the Slaughters did not perform any work outside of Tennessee after returning to the state in 1978; (6) Edna was diagnosed with mesothelioma in Tennessee; (7) all of Edna’s treatment for mesothelioma was provided at three medical facilities in Tennessee; (8) all of Edna’s treating physicians were located in Tennessee; (9) all of Edna’s medical records were located in Tennessee; (10) the Slaughters’ three children were residing in Tennessee while Edna underwent treatment for mesothelioma, and two of the children have knowledge concerning Edna’s medical care and treatment; (11) all known records relating to Ronald’s work and employment were located in Tennessee; and (12) with the exception of one individual (Ronald’s brother, Bill, who lives in Florida), all known living individuals with any knowledge regarding the Slaughters’ alleged exposure to asbestos were residing in Tennessee. On the basis of these facts, we conclude that the trial court did not abuse its discretion in balancing the private and public interests in favor of Tennessee.
Appellants assert that Respondents overstated the number of Tennessee witnesses by including all of Ronald’s coworkers from his machine shop jobs in Tennessee in their estimate of relevant witnesses. While the number of actual witnesses to the Slaughters’ alleged asbestos exposure remains in dispute, it is undisputed that among the individuals whose residency was known and who may have some knowledge of facts relating to this case, all but one were residing in Tennessee and none were residing in California.
This case is factually similar to Morris v. AGFA Corp., supra, 144 Cal.App.4th at p. 1455 (Morris), an asbestos-related action filed in California based on asbestos exposure that allegedly occurred in both California and Texas. The decedent worked in California for approximately six years between 1976 and 1982, and worked in Texas for approximately 17 years between 1983 and 2001. (Id. at p. 1456.) He was diagnosed with leukemia in 2002 while residing in Texas, and he remained in Texas until his death in 2003. (Ibid.) The trial court granted the defendants’ motion to stay the action on grounds of forum non conveniens, finding that the balance of interests weighed in favor of litigating the action in Texas. (Id. at p. 1460.) In affirming the trial court’s ruling, the Court of Appeal in Morris noted as follows: “Decedent spent the vast majority of his employment in Texas, the majority of the [asbestos] exposure occurred in Texas at Texas printing companies, decedent was diagnosed and treated in Texas, and decedent passed away in Texas. Most of the coworkers and medical witnesses are in Texas, not California. His widow and surviving children are Texas residents with few, if any, ties to California. Only two defendants are California corporations.” (Id. at p. 1467.) On these facts, the Court of Appeal concluded that the trial court did not abuse its discretion in weighing the private and public interests in favor of Texas. (Ibid.)
Appellants assert that the trial court abused its discretion here because Edna’s only direct exposure to asbestos occurred in California, not Tennessee. However, “[t]he doctrine of forum non conveniens may not be based ‘on identification of a single factor rather than the balancing of several. [Citation.]’” (Morris v. AGFA Corp., supra, 144 Cal.App.4th at p. 1465.) The alleged location of Edna’s direct exposure thus was one factor for the trial court to consider in its balancing of private and public interests, but that factor alone is insufficient to show an abuse of discretion in the trial court’s ruling. The Court of Appeal in Morris reached a similar conclusion, explaining that “even if California were the location of the injury, it would not be the location of the witnesses and physical evidence,” and would not be sufficient to tip the balance in favor of California as a forum. (Id. at p. 1468.)
Appellants also argue that the trial court abused its discretion because all of the named defendants are currently registered to do business in California and made products that actually caused an injury within this state. Appellants are correct that California has an interest in regulating manufacturers and distributors of products that cause injury in California. However, Tennessee also has an interest in regulating businesses whose products cause injury within that state, as is alleged here. Given that both states have an interest in the action, the trial court was within its discretion in determining that Tennessee – where the Slaughters lived and worked for over 28 years, where at least some of the asbestos exposure is alleged to have occurred, where Edna was diagnosed and treated for an asbestos-related disease, and where the majority of relevant witnesses and records are located – has a superior interest in hearing the case. Accordingly, the trial court’s balancing of factors in favor of Tennessee was not an abuse of discretion.
CONCLUSION
The trial court did not abuse its discretion in finding that the balance of private and public interests weighed in favor of litigating the Slaughters’ action in Tennessee. However, under Hansen and American Cemwood, the trial court did err in dismissing (rather than staying) the action because the moving defendants failed to demonstrate that all named defendants were subject to jurisdiction in Tennessee. Therefore, on remand, the trial court may either (1) deny the defendants’ motion to dismiss or stay the action, or (2) grant the motion to stay the action pending a determination as to whether all named defendants are subject to jurisdiction in Tennessee. Because the statute of limitations has run in Tennessee, any stay granted on remand must be subject to the defendants’ agreement to waive any defense based on the Tennessee statute of limitations.
DISPOSITION
We reverse the trial court’s order of dismissal and remand the matter to the trial court with directions to enter a new order either (1) denying the defendants’ motion to dismiss or stay the action, or (2) granting the defendants’ motion to stay the action pending a determination as to whether Tennessee has jurisdiction over all named defendants and subject to the agreement of each named defendant to waive any defense based on the Tennessee statute of limitations. Appellants shall recover their costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.