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Opposing a forum non conveniens motion in California

by Stan Burman

Opposing a forum non conveniens motion in California is the topic of this blog post. 

A forum non conveniens motion in California is also known as a motion to dismiss on the grounds of inconvenient forum.

I want to stress that any documents opposing a forum non conveniens motion in California should be filed and served no later than nine (9) court days before the hearing and served by personal service or overnight delivery pursuant to Code of Civil Procedure section 1005 unless the Court has ordered otherwise.

 The motion is made on the grounds that the forum state, namely California, is an inconvenient forum in which to have the case heard.

Burden of proof on forum non conveniens motion in California.

The good news for any party opposing a forum non conveniens motion in California is that the moving defendant(s) have the burden of proof. The entire motion should be reviewed along with all supporting attachments to determine if the moving party has met their burden.

For example several years ago I drafted an opposition to a forum non conveniens motion in California  in which the moving defendants provided NO sworn declarations with the motion. Not surprisingly the motion was denied.

And the United States Supreme Court has stated that the plaintiff’s choice of forum should only be disturbed if the balance weighs strongly in favor of the defendants.

In California the doctrine is typically applied where none of the parties is a California resident, and where the cause of action arose outside of the forum state. The doctrine 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. The moving party must also establish that a suitable alternative forum exists.

Courts in California have utilized a two prong approach in ruling on a forum non conveniens motion in California: (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. Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751.

Code of Civil Procedure section 410.40 states that “Any person may maintain an action or proceeding in a court of this state against a foreign corporation or nonresident person where the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of California law has been made in whole or in part by the parties thereto and which (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than one million dollars ($1,000,000), and (b) contains a provision or provisions under which the foreign corporation or nonresident agrees to submit to the jurisdiction of the courts of this state. This section applies to contracts, agreements, and undertakings entered into before, on, or after its effective date; it shall be fully retroactive. Contracts, agreements, and undertakings selecting California law entered into before the effective date of this section shall be valid, enforceable, and effective as if this section had been in effect on the date they were entered into; and actions and proceedings commencing in a court of this state before the effective date of this section may be maintained as if this section were in effect on the date they were commenced”.

This means that if an agreement signed by both parties, even if both parties are nonresident parties, includes what is known as a mandatory forum selection clause, the Court will most likely deny the motion unless the moving party can show that applying the clause would be unfair or unreasonable. The fact that the moving party might be inconvenienced or suffer additional expenses is not sufficient.

Sample opposition for opposing forum non conveniens motion in California for sale.

Attorneys or parties in California that would like to view a portion of a 15 page sample opposition to a forum non conveniens motion in California containing a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

Sample Opposition to Motion to Dismiss on Grounds of Inconvenient Forum by Stan Burman on Scribd

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is a retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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