opposition to motion to dismiss or stay and supporting declarations

Cal. Super. - 1st Dist.September 24, 2021

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John A. Brockmeier, Esq. (SBN 244510) BROCKMEIER LAW GROUP, APC 2082 Michelson Drive, Suite 100 Irvine, California 92612 Tel: (310)425-3431 Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ZACHARY BOOKMAN, an individual Plaintiff, vs. GARRETT MADISON, et al, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: CGC-20-58399 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN A. BROCKMEIER, ESQ.; DECLARATION OF ZACHARY BOOKMAN DATE: September 29, 2020 TIME: 9:30 a.m. DEPT: 302 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOW COMES PLAINTIFF ZACHARY BOOKMAN (hereinafter “Plaintiff”) and does hereby submit his opposition to Defendant GARRETT MADISON’s (hereinafter “Defendant”) Motion to Dismiss or Stay (hereinafter “Motion”) filed by Defendant the above entitled action. Plaintiff respectfully requests that this Court deny Defendant’s Motion to Dismiss or Stay on Grounds of Forum Non Conveniens for the following reasons: (a) Defendant has misled the Court as to the nature of the contractual dispute between the parties and allegations of the operative Complaint in California; ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/15/2020 Clerk of the Court BY: YOLANDA TABO-RAMIREZ Deputy Clerk PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) Defendant has failed to meet their burden of establishing that California is an inconvenient forum as the agreement between the parties that Plaintiff now seeks damages under was made in California and was witnessed by California residents; (c) Defendant has not demonstrated that Washington is a suitable alternative forum for purposes of dismissal or stay; (d) Defendant fails to provide evidence that public interest factors favor dismissal. This opposition is based upon all papers and pleadings on file in this action, the accompanying Memorandum of Points and Authorities, the Declaration of JOHN A. BROCKMEIER, ESQ., the attached exhibits, and upon such further oral or documentary evidence as may be presented at the hearing on this Motion. DATED: September 15, 2020 BY:__________________________ John A. Brockmeier Attorney for Plaintiff PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case involves a claim arising from an oral contractual dispute between Plaintiff and Defendant. The complaint alleges breach of oral contract and fraud. Defendant now seeks a motion to dismiss or stay based upon the argument that Plaintiff’s complaint is improperly filed due to jurisdictional challenges, to wit forum non conveniens, and that it somehow relates to the unrelated declaratory action filed on August 4, 2020, months after the current complaint, relating to a separate written agreement. Defendant’s motion seeks to assert a factual challenge to Plaintiff’s complaint, procedurally improper at this phase and akin to a motion for summary judgment despite Plaintiff not even having the opportunity to conduct investigation and discovery in this matter, Defendant’s notice of Plaintiff’s allegations in early 2020, Defendant’s response to those allegations in March 2020, and multiple extensions to file a responsive pleading granted by Plaintiff’s counsel at the request of Defendant’s counsel. For the reasons set forth herein and below, Plaintiff respectfully requests that the Court Deny Defendant’s Motion. II. FACTS AND PROCEDURAL HISTORY This complaint asserts fraud in the inducement in relation to two contracts, all fraud having taken place in California, as well as breach of an oral contract created in San Francisco and witnessed by a San Francisco resident. Much of the current motion’s arguments contain red herrings that are irrelevant to the current action, or actual misstatements of the factual allegations of the operative complaint. Plaintiff was approached by Defendant in mid 2019, personally and via email, to Plaintiff to join an August 2019 trip to summit Mount Everest. Defendant represented that this trip was a special and unique opportunity to climb Mount Everest in the fall as part of a sponsored expedition by Mountain Hardware Company, who had already sponsored the trip. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff entered into a written contract and paid Defendant sixty-nine thousand five hundred dollars ($69,500.00) so that Defendant would provide high-altitude mountain guiding, logistics, arrangements, and trip leadership on the climb up Mount Everest. Due to Defendant and Mountain Hardware’s CEO’s decisions, Plaintiff and the other commercial guiding client (as well as two other parties that were entirely reliant on Defendant) never made it out of base camp. In other words, Defendant induced Plaintiff to spend nearly $70,000 for a walk to base camp that normally costs under $2000.00. Plaintiff returned to San Francisco, after communicating his displeasure and getting assurances. Upon arriving at base camp, Plaintiff discovered that the route had not been roped as was promised repeatedly by Defendant. The day after arriving at base camp, Plaintiff watched Defendant nearly come to blows with the leader of a third-party expedition that had apparently contractually arranged to have Defendant serve as the rope-setter. Defendant failed to do that and there were in fact two different near-fisticuffs between Defendant’s party and two different Polish expeditions that were relying on Defendant, and which teams were similarly lied to. On or about October 16, 2019, Plaintiff and Defendant had arranged to meet so Defendant could return some of Plaintiff’s hiking gear at Plaintiff’s home in San Francisco, California Defendant offered Plaintiff a credit for the apparent fraud and failed trip. Plaintiff said that this would not work and that he was not interested in paying Defendant more to take him back to Everest in the hopes that Defendant wouldn’t just keep the money a second time and make up a reason to cancel the trip again. At this point Defendant agreed to pay the amount in the Complaint in exchange for Plaintiff saying and doing nothing online or publicly about the trip that Defendant was neither prepared nor able to provide, and Plaintiff’s girlfriend was present at his home and witnessed the discussion and subsequent agreement. After being confronted by Plaintiff, Defendant and Plaintiff entered into an oral agreement wherein Plaintiff would not discuss PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s acts , the poor planning, the deceit, the near-fisticuffs with other parties, and the other unprofessional and deceptive acts that took place on the trip with the tight knit climbing community and in exchange, Defendant would pay Plaintiff a one-time lump sum in the amount of fifty thousand dollars and 00 cents ($50,000.00). Plaintiff served a written demand to Defendant, through counsel, on January 21, 2020 via electronic mail and facsimile. In it, Plaintiff alleges breach of contract in his complaint based upon Defendant’s failure to perform under the oral agreement. Defendants, through the very counsel currently representing him in Court now, responded to that Demand letter with an unfiled Washington complaint, and a proposed confidential settlement agreement that was onerous and one-sided. Upon attempts at negotiation, Defense counsel stated that his client needed time, and then stopped communicating with Plaintiff’s counsel about the matter. Thereafter, the current case was filed and served on Defendant. After service, defense counsel reached out on multiple occasions, requesting and obtaining the professional courtesy of over 30 days to file a responsive pleading, that last deadline of which was August 5, 2020. Defendants have misled the Court as the crux of the controversy at issue here, which arises solely from the subsequent oral agreement made in California and witnessed by the parties and a third party California resident. Despite having repeatedly attempted to resolve this matter informally and without the need for the Court’s intervention, Plaintiff ultimately was forced to file his complaint in this action on March 27, 2020. Plaintiff served the complaint and gave Defendant numerous extensions in which to file a responsive pleading. On August 4, 2020, Defendant filed a complaint for declaratory judgment in the State of Washington, fully more than four (4) months after the current complaint was filed, which sought Declaratory judgment to preclude Plaintiff from bringing any action whatsoever, and seeks damages and fees that are unavailable to Defendant. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On the very next day, August 5, 2020, Defendant filed the Motion hereto now opposed. Defendants filed a motion to dismiss on forum non conveniens grounds. No discovery has yet been undertaken despite Defendant now making, in essence, a factual challenge to the facts set forth in the operative complaint in this action, with which Defendant seeks to have the Court weigh testimony and evidence that is irrelevant to the current case or the current motion. III. FORUM NON CONVENIENS STANDARD OF REVIEW In a forum non conveniens action, the defendant has the burden of proof. Century Indem. Co. v. Bank of Am., 58 Cal. App. 4th 408 (Cal. App. 1st Dist. 1997); Rinauro v. Honda Motor Co., 31 Cal. App. 4th 506 (Cal. App. 2d Dist. 1995); Credit Lyonnais Bank Nederland, N.V. v. Manatt, Phelps, Rothenberg & Tunney, 202 Cal.App.3d 1424, 1436 (Cal.App. 2d Dist. 1988). Unless the balance weighs strongly in favor of the defendants, the plaintiff’s choice of forum should rarely be disturbed. See Piper Aircraft v. Reyno, 454 U.S. 235, 255 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947); Great Northern Ry. Co. v. Superior Court, 12 Cal. App. 3d 105 (Cal.App.1st Dist. 1970). The doctrine of forum non conveniens is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. See Appalachian Ins. Co. v. Superior Court, 162 Cal. App. 3d 427 (Cal.App.2d Dist. 1984) (Emphasis added). “This limitation on the forum non conveniens doctrine reflects a state policy that California residents ought to be able to obtain redress for grievances in California courts, which are maintained by the state for their benefit. (Cf. One Hundred & Ninety-Four Shawls (S.D.N.Y.) 18 F.Cas. 703, 705 (No. 10,521); Empire Steel Corp v. Superior Court, 56 Cal.2d 823, 833 [17 Cal.Rptr. 150, 366 P.2d 502]; Root v. Superior Court, 209 Cal.App.2d 242, 247 [25 Cal.Rptr. 784].) This state is concerned with the welfare of California residents (see Rest.2d Conflict of PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Laws (Tent. Draft No. 4) § 117e, com. f) and has "a decided interest in assuring that its citizens are not denied damages because of the inconvenience or expense of bringing suit in a distant jurisdiction." (Cecere v. Ohringer Home Furniture Co. Div. of Tilmore Corp., 208 Pa. Super. 138 [220 A.2d 350, 356].) Thomson v. Continental Ins. Co. (1976) 66 Cal.2d 738, 743. Courts in California have utilized a two prong approach in motions to dismiss on the basis of forum non conveniens: 1) Defendants must establish that a suitable alternative forum exists and 2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. See Stangvik v. Shiley, Inc., 54 Cal.3d 744, 751 (Ca. 1991). As mentioned above and in Plaintiff’s operative complaint, two of the three witnesses to the oral agreement are California residents. Moreover, the oral agreement itself took place in San Francisco, California. As such, Defendant’s motion to dismiss on forum non conveniens grounds is baseless, and the motion for stay already on tenuous footing. Here, Defendant has filed the Washington State Court action the day before filing this Motion, making it hard to ignore the fact that Defendant is clearly trying to choose his venue despite not having legal grounds to make such a challenge. Further, Defendant recruited Plaintiff for this trip both at the café next to Plaintiff’s house and by inviting him to the American Alpine Club dinner in San Francisco, at which point Defendant actually asked if he could stay at Plaintiff’s house in San Francisco during that time. IV. ARGUMENT A. Defendants’ Motion to Dismiss on Forum Non Conveniens Grounds Should be Denied Throughout their motion, Defendant heavily relies upon the California Supreme Court’s decision in Stangvik v. Shiley, granting a California corporation’s motion to dismiss on forum non conveniens grounds in a products liability case. 54 Cal.3d at 744. Defendant’s reliance upon this case is misplaced, as this entire action is distinguishable. Further, it is clear that the reason for the misstatement of facts and red herrings contained in the current motion’s arguments are because, PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 without these misstatements, the Court would see on the motion as meritless even without the filing of this opposition. In Stangvik, two foreign plaintiffs from Sweden and Norway brought an action against a heart valve manufacturer in California, and its parent company, a Delaware corporation, alleging negligence, strict liability, breach of warranty, fraud and loss of consortium. Id. The court weighed the factors provided herein, and determined that the action could be brought in either of the foreign countries, or in the sister States. None of these facts are present in the current case. The facts of the case presently before the Court are markedly different. In Stangvik, there were concerns regarding how the heart valve was handled in a foreign country under foreign regulatory standards, as the Plaintiffs were residents of these foreign countries. Id. Additionally, there were considerable concerns relating to the transplantation of the valve inside the foreign plaintiffs and the complications associated with medical practices and regulatory standards of foreign countries. Here, none of these issues exist, and in fact the opposite is true as the Plaintiff is a California resident suing on an oral contract created in California, witnessed by another California resident. Two of the three witnesses are located within the United States and State of California and are subject to the same regulatory schemes. Apparently trying to confuse the issues for the Court in relation to the current motion, Defendant alleges that Plaintiff has somehow tried to “conceal” the original written agreement. See Motion, pg. 5, line 15-17. This is untrue. In fact, the operative complaint alleges the nature of the controversy between the parties and lays out the exact timing and details of the purportedly “concealed” agreement and the subsequent oral agreement. The oral agreement between the parties is and was a separate bargain for separate consideration between the parties, and unrelated to the prior agreement. To levy a factual challenge that alludes to evidence outside of the complaint and not yet produced in discovery is not only procedurally inappropriate but a remedy PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 properly sought with a dispositive motion for summary judgment or the like. However, to file a responsive document challenging the facts of the initial pleading is Defendant’s true goal with this Motion, and to deny justice under the laws of the location where the contract was entered, witnessed, and breached - California. The States interest in protecting its residents from breach of oral agreements made within its borders, and from fraud made within its borders is plain and paramount. Once Bookman returned from the trip and Defendant decided to enforce the likely illicit liquidated damages clause - keeping nearly $70,000 for a five-day walk to base camp that is openly advertised in Kathmandu for $995 - the consideration alleged and the oral contract created are entirely different. B. Washington is Not a Suitable, Alternative Forum for Plaintiffs’ Claims, and the Court Should Deny the Request for Stay. Defendant mistakenly claims that Washington is a suitable alternative forum because of several reasons: 1) that there is a written contract (which is not subject to the current suit) that has a “choice of forum” provision that requires an aggrieved party to seek remedies in the State of Washington; 2) that there is a separate pending action in Washington State court (that was filed months after the current suit and seeks only Declaratory adjudication); and that 3) an omitted party (to wit: Madison Mountaineering, LLC) was left out of the pleadings. Each will be addressed below in turn; none is persuasive. Further, Courts have looked at whether a stay is appropriate based on factors. In Thomson v. Continental Ins. Co. 66 Cal.2d at 747, the Court noted the rule: “Granting a stay in a case where the issues in two actions are substantially identical. (see Simmons v. Superior Court, supra, 96 Cal.App.2d 119, 123; Tinney v. Tinney, 211 Cal.App.2d 548, 552-553 [27 Cal.Rptr. 239]) is a matter addressed to the sound discretion of the trial court. [8] "In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced." (Farmland Irrigation Co. v. Dopplmaier, 48 Cal.2d 208, 215 [308 P.2d 732, 66 A.L.R.2d 590]; see also Landis v. North American Co., 299 U.S. 248, 255 [81 L.Ed. 153, 57 S.Ct. 163]; Tinney v. Tinney, supra, 211 Cal.App.2d 548, 553.) The actions are not identical, and proving the oral contract and the fraud in its inducement relies wholly on witnesses in California, for acts that took place in California, against the interests of a citizen of California and the State itself. Further, Defendants waited months after the filing and service of the current Complaint to file a separate action in Washington with the specific intent of instituting multiple litigation designed solely to harass Mr. Bookman based on the chronology of events, and allegations of that Complaint. Notably, the only “damages” sought in the Washington Action not even available to Defendants there, if he were to prevail. That action seeks attorney fees as prevailing party, but as the Declarations in support of the current motion make clear, opposing counsel is working pro bono on this matter, for reasons unknown. Defendant seems to want to have free work and make someone pay him for the free work too. 1. The Forum Selection Clause of the Written Contract is Not Relevant to the Current Case or the Motion Before the Court. The written contract has a choice of forum provision requiring litigating disputes related to that contract in Washington. However, as the Complaint makes clear, the oral agreement for which the Complaint seeks recovery was entered into by all parties in the State of California, was witnessed by only one other person who is a California resident, was created after the acts of the prior contract were completed, and was made in exchange for a wholly new consideration, with different parties - Mr. Madison himself. Plaintiff has not sought remedies under the written contract because it is a subsequent and separate oral agreement Defendant breached. Defendant has omitted and/or misled the Court as to the nature of the illicit conduct as alleged. The original contract is irrelevant, and the oral contract was and is enforceable in California, based on PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California law and California interests in its citizens. Moreover, Defendant had every incentive to enter into this contact, because his conduct and failures around the trip were so egregious as to be of considerable interest to the climbing community and other potential clients. Further, Defendant public stated on social media and elsewhere widely a made-up “weather and conditions” reason for cancelling the trip when the trip was actually cancelled because his boss, the President of Mountain Hardware, was struggling severely and had trouble walking out of basecamp on the first acclimatization hike. The Washington action is a blatantly improper attempt to subvert California law of fraud performed and contracts created in California, and further that action is not related to the action at bar here, has not even been served on Bookman, and seeks damages that are not awardable based on the representations made to this Court. Plaintiff again urges the Court to consider the fact that the filing of the Washington action was not filed until August 4, 2020, literally one day prior to serving Defendant’s current Motion, and nearly 8 months after Plaintiffs served the original demand on Defendant and current counsel for Defendant responded. To say that the day lapse makes Defendant’s true aims transparent is to underscore the truth. As to the omission of the above-named corporate entity, Defendant is essentially trying to dictate who Plaintiff sues under the oral agreement, and asserting that an agreement between two individuals - Bookman and Madison - is actually between their separate corporate entities. The argument fails on its face. Mr. Madison came to Mr. Bookman’s home, cut a deal to save personal face, evidently lied to Plaintiff yet again, and defrauded him. Defendant did not say anything about Madison Mountaineering paying $50,000 to not approach social media or disseminate the true facts of this trip, Defendant himself did. Finally, it must be noted that the “news” releases reported in the current Motion are self- serving, self-made “reports” by Defendant and Madison Mountaineering. They are hearsay public PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relations and cannot be considered as even judicially noticeable items in California. Further, they were and are made-up to cover up Defendant’s failed trip and the true reasons that Defendant arbitrarily and abruptly cancelled the trip: His boss/sponsor, the President of Mountain Hardware, for whom the trip was designed and by whom the trip was paid even before Plaintiff was lured into it under fraudulent statements, couldn’t even walk out of base camp properly on the first acclimatization hike. When that happened, the President of Mountain Hardware awoke early the next morning and announced that the trip was cancelled. Madison complied with his boss and cited weather and conditions-related reasons to cancel the trip, notwithstanding that the condition cited was one of literally hundreds of natural obstacles inherent in a climb of Mt. Everest. C. The Private Interest Factors Favor Retaining this Case in California There are 2 prongs to forum non conveniens that Court’s examine in California. The first, “private interest” factors in a forum non conveniens analysis include: (1) the ease of access of proof; (2) availability and cost of obtaining witnesses; (3) possibility of harassment of defendant in litigation in an inconvenient forum; (4) the enforceability of the judgment. See Goodwine v. Superior Court of Los Angeles County, 63 Cal. 2d 481 (Cal. 1965). Within the motion, Defendant makes inaccurate allegations regarding Plaintiff’s alleged jurisdictional issues and the convenience of California. First, Defendant states in the motion that although “Mr. Bookman (Plaintiff) is a California resident, that is where California’s interest in the law ends.” See Motion, pg. 7 lines 14-15. This is false as to facts and false as to law. Defendant ignores, either intentionally or erroneously, that the oral agreement allegedly violated in the operative complaint was made and witnessed in San Francisco in the State of California, which is stated in multiple instances on this easy to read, form complaint. Two of the three potential witnesses reside in the State of California, Plaintiff and his girlfriend, and Defendant comes to California multiple times a year for business, as the fact that he has defrauded PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bookman here, twice, makes clear. The actual controversy arose from actions occurring in the State of California including fraudulent inducement in two San Francisco locations; and the witnesses are mostly in California. Defendant does business in California and contracted in California. Defendants argument that California is inconvenient despite the occurrence of the actions in the state and the presence of witnesses in the state is somewhat remarkable, and based on the law, the Court should deny the motion. Defendant wants to argue to the Court how great the Sherpa community is; Plaintiff agrees that they are overworked and underpaid (by Defendant); however it is both irrelevant to the current motion, and again attempts to turn the aim from the point of the allegation in the Complaint: Defendant sold a fraudulent bill of goods to Plaintiff, in California, including that the entire icefall would be roped when the party arrived by Sherpas and all the other allegations. When the party arrived, Plaintiff witnessed the Polish climbers yell at and almost come to blows with Defendant. The Polish climbers, along with all climbers there but for those that actually attempted to summit, were also precluded from climbing due to Defendants and Mountain Hardware’s decision to find a reason to cancel the trip when the CEO of Mountain Hardware had difficulty hiking on the one day they did at basecamp. Additional red herrings abound. For instance, Defendant repeatedly both before Plaintiff filing the Complaint and after in the current motion, argues that if only Plaintiff had bought trip insurance, all would be well. Defendant knows this is yet another untruth, as the only other climber not associated with Mountain Hardware did obtain the insurance required, and has been denied coverage for any of the loss of money whatsoever. Notably, this climber also states that Mr. Madison “sold” her the same false bill of goods to secure her signature and payment, and has agreed with Plaintiff’s allegations regarding the situation at Everest upon arrival. Plaintiff intends PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to call this climber as a witness in trial. Mr. Madison continues to assert falsehoods, and does not even discuss this climber in the current motion when asserting - incorrectly and inaccurately - that if Plaintiff had purchased insurance, all of Mr. Madison’s fraudulent statements and subsequent breaches would have been fine. D. The Public Interest Factors Favor Retaining this Case in California The relevant “public interest” factors in a forum non conveniens analysis 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. Morris v. AGFA Corp., 144 Cal. App. 4th 1452, 1453 (Cal. App. 1st Dist. 2006). Defendant mistakenly alleges that litigating this lawsuit will have no bearing upon California’s interest. Nothing could be further from the truth. Indeed, there are jurisdictional challenges to any case being brought in Washington State for breach of oral agreement and fraud that occurred in California, that Defendant can and clearly will assert in that action. It was a California resident who was fraudulently induced into spending almost seventy thousand dollars, while in California, and subsequently defrauded into remaining silent about Defendant’s acts and misdeeds, again in California. The oral agreement under which Plaintiff now seeks remedies was made in the State of California. Other California residents may seek to scale Mount Everest and be duped by the same fraudulent inducement by Defendant as was Plaintiff. California’s public interest is clear here. If Defendant’s trickery should succeed in filing an action in Washington that is tenuously related to Plaintiff’s action in California, parties may seek to utilize the same sort of underhanded gamesmanship to avoid legal responsibility. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION For the foregoing reasons, Plaintiff respectfully request that this Court deny Defendant’s Motion to Dismiss or Stay and order them to answer. DATED: September 15, 2020 BY:__________________________ John A. Brockmeier Attorney for Plaintiff - 22 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in Orange County in the State of California. I am over the age of 18 and not a party to the within action; my business address is 2082 Michelson Drive, Suite 100 Irvine, California 92612. On September 15, 2020 I served the foregoing document described as PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR STAY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN A. BROCKMEIER, ESQ.; DECLARATION OF ZACHARY BOOKMAN on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully paid, addressed as stated below: TERESA C. CHOW (SBN 237694) BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Facsimile: 310.820.8859 Email: tchow@bakerlaw.com / X/ BY MAIL) I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the U.S. Postal Service on that same day with the postage thereon fully prepaid at Santa Monica, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. CCP §1013(a); Fed. Rule Civ. Proc. 5(b). / / (BY CERTIFIED MAIL) I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. I caused such envelope with postage thereon fully prepaid, via certified mail -- return receipt requested, to be placed in the United States mail at Santa Monica, California. CCP §1013(a); Fed. Rule Civ. Proc. 5(b). / / (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee whose name and address is listed above. CCP §1011(a); Fed. Rule Civ. Proc. 5(b) / / (BY EXPRESS OVERNITE MAIL/FEDERAL EXPRESS) I am “readily familiar” with the firm’s practice of collection and processing correspondence for express mail/Federal Express. Under the practice it would be deposited with the U.S. Postal Service/Federal Express on that same day with the postage thereon fully prepaid at Santa Monica, California, in the ordinary course of business. CCP §1013(c) / x / (BY ELECTRONIC MAIL) In addition to the above service by mail, hand delivery or express mail/Federal Express, I caused said document(s) to be transmitted by facsimile transmission. CCP §1013(e) [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 15, 2020 at Irvine, California. John A. Brockmeier