DAVID WEST, et al,

Case No. BC 111313





LLOYD'S, etc., et al., CONVENIENS



The hearing on the defendant's motion was held on August 11, 1998 and the matter was taken under submission. Having considered the parties' oral and written arguments and the admissible evidence adduced, the court now rules as follows:

The court rejects the defendants' argument that the Court of Appeal's decision herein, that the choice of the forum clause is void, does not apply to all causes of action of the complaint, but only to the cause of action alleging violations of California securities laws. The Court of Appeal reversed this court's ruling in its ruling in its entirety and did not reverse it in part and affirm in part.

The Court of Appeal's decision herein is the law of the case.

The only issue before this court, therefore, is whether or not this action should be stayed or dismissed pursuant to the doctrine of forum non conveniens.

It is undisputed that (absent the forum selection clause), Lloyd's has the burden of proof to establish that California is not a convenient forum. It has failed to do so.

Pursuant to Stangvik v. Shiley 54 Ca;l/3d 744 (1991) and Shiley v. Superior Court 4 Cal.App.4th 126 (1992), a trial court must first determine whether the alternative forum is a suitable forum.

Lloyd's is subject to the jurisdiction of the English courts and it does not appear that a fraud claim against it would be barred by the statute of limitations.

The court finds that England is a suitable alternative forum. It is undisputed that the Names can sue for fraud in England. Although the Names may not have all the procedural and some of the substantive law advantages in England that they might have in California, that is insufficient to make the English forum "unsuitable." The obstacles to suing in England established by the evidence adduced by plaintiffs do not amount to "no remedy at all."

Pursuant to Stangvik and other cases, plaintiffs' choice of forum must be given substantial weight, and if plaintiffs are California residents, plaintiffs' choice of forum must be presumed convenient. With respect to plaintiffs' choice of forum here, the Court of Appeals in its decision at page 8 states that "In general, review of the correctness of a judgment granting a motion to change venue is made as of the time of its rendition." (Citation omitted.) The Court of Appeal also noted that the trial court was not presented with and did not pass on or consider the issue. Now that the issue is squarely before this court, this court concludes that plaintiffs' choice of forum here should be and is presumed convenient because all plaintiffs were residents of California for years before the complaint was filed, at the time the complaint was filed, and because one of them, Susan West, is currently again a resident in California. Most of defendants' contacts with the plaintiffs occurred in California and included representatives of the defendants visiting plaintiffs' home and a variety of written communications over a period of years.

This court must next determine if Lloyd's has overcome the presumption of convenience of the California forum and weigh the private interests of the litigants and the interests of the public in retaining the action in California. Ford v. INA, 35 Cal.App. 4th 604 (1995).

Numerous cases deal with the factors that a court must consider in its analysis. The classic case frequently cited is Great Northern Railroad Co. v. Superior Court, 12 Cal.App.3d105(1970), which lists 25 factors to be considered. These factors are generally grouped as private interest factors and public interest factors.

With respect to the 25 Great Northern, this court agrees with and adopts the analysis of the plaintiffs at pages 15-19 of plaintiffs' opposition.

The Court of Appeal decision herein is the law of the case with respect to the significance and interest of California in its policy under its securities laws and, specifically, of protecting California investors. As that interest was found to be so substantial as to void the forum selection clause, this court concludes that that interest is sufficiently substantial to require that great weight be given to the public interest factors in determining the proper forum.

The Court of Appeal at page 16 of its decision ruled that the respondents did not meet their burden to show that litigation in the contract forum would not diminish any of the plaintiffs' rights under California securities law. In fact, the court stated "Indeed, it appears that California law would not be applied in England, and appellants would be deprived of all their rights under that statutory scheme were this action to be tried there. Although much additional evidence has been presented to this court on current motion, the evidence is clear that plaintiffs' rights under California securities law would certainly be diminished and probably unavailable if the case was tried in England. Furthermore, it is clear that plaintiffs would face tremendous obstacles even on such cause of action for fraud as may be pursued in England. While this may not preclude the foreign forum from being adequate forum, it is a consideration in weighing and evaluating the various factors set forth in Great Western and other cases.

Although the Court of Appeal focused on the California securities laws and interest of protecting its investors, it would not be logical to treat common law fraud causes of action differently as far as forum non conveniens is concerned. Convenience and efficiency demand that if the overriding consideration is California's policy of protecting its investors and seeing its securities laws enforced, that all of the causes of action should be tried here and such factors as may favor England are outweighed by California's interest in protecting the plaintiffs.

The private interest factors as well weigh in favor in California as proper forum.

There certainly are more obstacles to plaintiffs' obtaining a fair trial in England than here because of the limitations in pretrial discovery. Additionally, serious issues with respect to fairness are raised by the retroactive immunity policies that apparently may apply to Lloyd's. Lloyd's does substantial business in the United States and specifically in California, so trying the case in California should be less hardship on Lloyd's than the hardship of plaintiffs having to sue in England, which besides the other disadvantages already discussed, also requires payment of a substantial bond to maintain suit.

The court concludes that the defendants have not rebutted the presumption in favor of plaintiffs' choice of the California forum and although England may be an adequate forum, the balancing of the private and public factors weighs in favor of California as the forum of the trial herein.

It is therefore ordered that the defendants' motion for dismissal or stay on grounds of forum non conveniens is denied.

Copies of this order shall be served on all counsel.

DATED: 9/1/9



Judge of the Superior Court


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