Great Northern Ry. Co. v. Superior Court

• Decision Date: 20 October 1970
• Citation: 90 Cal.Rptr. 461,12 Cal.App.3d 105
• Court: California Court of Appeals Court of Appeals
• Parties: GREAT NORTHERN RAILWAY COMPANY, Petitioner, v. SUPERIOR COURT, COUNTY OF ALAMEDA, Respondent. Eleanor V. CURTIN, as Administratrix of the Estate of George F. Gibson, Deceased, etc., Real Party in Interest. Civ. 28220.

Page 461

90 Cal.Rptr. 461

12 Cal.App.3d 105

GREAT NORTHERN RAILWAY COMPANY, Petitioner, v. SUPERIOR COURT, COUNTY OF ALAMEDA, Respondent Eleanor V. CURTIN, as Administratrix of the Estate of George F. Gibson, Deceased, etc., Real Party in Interest.

Civ. 28220.

Court of Appeal, First District, Division 1, California.

Oct. 20, 1970.

Hearing Denied Dec. 17, 1970.

Crosby, Heafey, Roach & May, Edwin A. Heafey, Jr., Oakland, for petitioner.

Hildebrand, McLeod & Nelson, Clifton Hildebrand, Oakland, for real party in interest.

ELKINGTON, Associate Justice.

Petitioner Great Northern Railway Company (Great Northern) seeks a peremptory writ of mandate directing the Alameda County Superior Court to dismiss an action upon the ground of Forum non conveniens. The superior court had previously denied a motion to dismiss based upon the same ground.

The record of the superior court now before us discloses the following.

The principal place of business of Great Northern is St. Paul, Minnesota. It has general offices in the State of Washington at Seattle and Spokane. The company operates over 1,310 miles of trackage in that state. In California it has about 63 miles of single track running from the Oregon border to Bieber in Lassen County. Freight only is carried over the California system, which connects with the Western Pacific Railroad, and over which 10 or 12 freight trains travel each way each week. The company also maintains 'offline' offices in California for solicitation of business.

George F. Gibson was employed by Great Northern as a freight train brakeman. He resided with his wife in Spokane, Washington. On August 29, 1969, Mr. Gibson, while performing his duties as brakeman, came into collision with a side girder of a bridge on Great Northern's main line between Wenatchee and Spokane, as a result of which he died instantly.

His sole survivor and heir is his widow who has continued to reside in Spokane. She employed the Alameda County law firm of Hildebrand, McLeod and Nelson to commence a wrongful death action against Great Northern under the Federal Employers' Liability Act (Title 45, U.S.C. § 51 et seq.). That firm thereupon secured the appointment of its employee, Eleanor V. Curtin, as California Administratrix of the Estate of Mr. Gibson. Thereafter Hildebrand, McLoed and Nelson, acting as attorneys for the administratrix, filed in Alameda County the action from which these mandate proceedings have arisen. Eleanor V. Curtin is a resident of the County of Alameda and State of California. (She will hereinafter be described as plaintiff). At least ten persons with knowledge of the circumstances of the accident, all of whom live in or near Spokane, Washington, will necessarily be called as witnesses at the trial. Neither party will call any resident of California as witness.

Save for the cause of action against Great Northern Mr. Gibson left no estate in California. In Alameda County a superior court jury case ordinarily reaches trial in not less than 18 months after it is at issue. In the United States District Court at Spokane, Washington, such a trial is reached about 90 days after issue, while in the Superior Court of the State of Washington for Spokane County an action will reach jury trial from 4 to 6 months after issue is joined. The statute of limitations for commencement of Federal Employers' Liability Act actions in Washington will not have run until August 29, 1972 (Title 45 U.S.C. § 56). The cost of a California trial to Great Northern will be $5,000 more than if it were to be held in Washington.

It is conceded that under the Federal Employers' Liability Act an action may be filed in any state where a defendant railroad company 'resides,' or where the cause of action arose, or in which it may be doing business at the time of the commencement of the action (Title 45 U.S.C. § 56). Since Great Northern was doing business in California at the time of the subject action, its Venue was properly laid in that state, which became vested with Jurisdiction over both the subject matter of the action and its parties. The heavy emphasis by plaintiff that California has such Jurisdiction is misdirected and irrelevant to the issues before us. The concept of Forum non conveniens is quite different from that of venue or jurisdiction. As was said in Price v. Atchison, T. & S.F. Ry. Co., 42 Cal.2d 577, 580, 268 P.2d 457, and Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, 'The principle of Forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.'

The doctrine has been variously defined. Leet v. Union Pac. R.R. Co., 25 Cal.2d 605, 609, 155 P.2d 42, 44, states: 'The rule of Forum non conveniens is an equitable one embracing the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action before it may be more appropriately and justly tried elsewhere.' In Canada Malting Co. v. Paterson Co., 285 U.S. 413, 423, 52 S.Ct. 413, 415, 76 L.Ed. 837, Mr. Justice Brandeis wrote, 'Courts of equity and of law occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.' Fifteen years later the same court wrote (Gulf Oil Corp. v. Gilbert, supra, 330 U.S. 501, 507, 67 S.Ct. 842): 'The principle of Forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.' Recently the Judicial Council of California, in its '1969 Annual Report to the Governor and the Legislature' spoke of the doctrine in this manner: 'The various bases of judicial jurisdiction recognized under the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution establish the outermost limits beyond which a state court may not exercise its judicial jurisdiction. Within those limits, the owner of a transitory cause of action will often have a wide choice of forums in which to bring his action. Some of these forums may have little relation either to the parties or to the cause of action, and suit in them may increase greatly the burden to the defendant of making a defense. Under the doctrine of inconvenient forum, a court, even though it has jurisdiction, will not entertain the suit if it believes that the forum of filing is a seriously inconvenient forum for the trial of the action. But in such instances a more appropriate forum must be available to the plaintiff.'

The doctrine of Forum non conveniens is firmly established in the law of California. (See Thomson v. Continental Ins. Co., 66 Cal.2d 738, 59 Cal.Rptr. 101, 427 P.2d 765; Goodwine v. Superior Court, 63 Cal.2d 481, 47 Cal.Rptr. 201, 407 P.2d 1; Price v. Atchison, T. & S.F. Ry. Co., supra, 42 Cal.2d 577, 268 P.2d 457; 1 Witkin, Cal.Procedure, pp. 441--442.) The principle has now been codified, effective July 1, 1970, as Code of Civil Procedure section 410.30. That section states: '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.'

In proper cases the doctrine will be applied to actions commenced, as here, under the Federal Employers' Liability Act. The United States Supreme Court in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. 501, 67 S.Ct. 839, holds such an application to be in no way invasive of constitutional or other federal principles. The California Supreme Court also, in Price v. Atchison T. & S.F. Ry. Co., supra, 42 Cal.2d 577, 583, 268 P.2d 457, 460, perceived 'no reason why the doctrine should not be available in this State, upon a proper showing and without discrimination against either noncitizens of California or against (Federal Employers' Liability Act) cases.'

In Price v. Atchison, T. & S.F. Ry. Co., supra, under the Federal Employers' Liability Act, a New Mexico resident, in a California court, sued a Kansas Railroad corporation doing business in New Mexico and California, for damages for negligence occurring in New Mexico. The witnesses, approximately 18 in number, resided in New Mexico. Some probably could not attend the California trial, with a consequent burden on the railroad company 'to present their testimonies by deposition, at the loss of the effectiveness of their personal appearance as witnesses.' The probable extra cost to the defendant of a California trial was $4,650. The Supreme Court, directing attention to the constitutional and federal permissiveness announced by Gulf Oil Corp. v. Gilbert, supra, 330 U.S. 501, 67 S.Ct. 839, held the doctrine of Forum non conveniens to be applicable.

Whether or not Forum non conveniens shall be applied rests in the sound discretion of the trial court. Unless the balance weighs strongly in favor of the defendant, the plaintiff's choice of a forum will rarely be disturbed. (See Gulf Oil Corp. v. Gilbert, supra, 330 U.S. 501, 508, 67 S.Ct. 839; Price v. Atchison, Topeka & S.F. Ry. Co., supra, 42 Cal.2d 577, 584--585, 268 P.2d 457.) Nevertheless, the exercise of such discretion may not be arbitrary; it must be exercised in conformity with the spirit of...