Hahn v. Diaz–Barba

Decision Date29 April 2011
Docket NumberNo. D056528.,D056528.
Citation194 Cal.App.4th 1177,11 Cal. Daily Op. Serv. 5056,2011 Daily Journal D.A.R. 6072,125 Cal.Rptr.3d 242
CourtCalifornia Court of Appeals Court of Appeals
PartiesWolfgang HAHN et al., Plaintiffs and Appellants, v. Alejandro DIAZ–BARBA et al., Defendants and Respondents.


Baker & McKenzie, Ali M.M. Mojdehi, Janet D. Gertz, San Diego, CA, for Plaintiffs and Appellants.

Sandler, Lasry, Laube, Byer & Valdez, Edward I. Silverman; Guevara, Phippard & James, and William J. Phippard, San Diego, CA, for Defendant and Respondent Alejandro Diaz–Barba.

Mazzarella & Caldarelli, William J. Caldarelli; and D. Anthony Gaston, San Diego, CA, for Defendant and Respondent Martha Barba De La Torre.

Seltzer Caplan McMahon Vitek, Gregory A. Vega and David M. Greeley, San Diego, CA, for Defendants and Respondents Michael Kocherga, Nicholas Kocherga and Alexander Kocherga.


The issue in this appeal is whether the trial court erred under the forum non conveniens doctrine by staying an action against residents of California for tortious interference with contract and other business torts for the sale of an interest in a Mexican business. Plaintiffs contend defendants did not meet their burden of proving Mexico is a suitable alternative forum, or that on balance the private and public interests favor Mexico as the more convenient forum. We affirm the order.

A. Parties

Plaintiffs are Wolfgang Hahn and Nikita II, S.A. (Nikita). Hahn is a German citizen who resides in Switzerland and Mexico. He owns Nikita, a Luxembourg corporation, which is the majority owner of Impulsora de Chamela, SA de CV (Impulsora), a Mexican company with property in Chamela, Jalisco Province, Mexico. Hahn intended to develop the property into an exclusive resort called La Tambora.

Defendants are Alejandro Diaz–Barba (Diaz); his mother, Martha Barba De La Torre (Barba); and their friends, brothers Michael Kocherga, Nicholas Kocherga and Alexander Kocherga (collectively, the Kochergas). Diaz and Barba are Mexican citizens who reside in San Diego County and do business here. Two of the Kochergas were born in Mexico and one of them was born in Spain. They all reside in San Diego County.

B. Underlying Bankruptcy Proceeding

A brief summary of a United States bankruptcy proceeding involving Hahn, Diaz and Barba is required to contextualize the facts of the instant action.

In 2004 Diaz and Barba purchased a property in Mexico called Villa Vista Hermosa. Villa Vista Hermosa is the childhood home of the Kochergas, along with a fourth brother, Eugenio Kocherga,1 who is not a defendant here. He owns a minority interest in Impulsora, whose property surrounds Villa Vista Hermosa. Diaz and Barba frequently visited the Kocherga family at Villa Vista Hermosa.

Villa Vista Hermosa had been owned by Jerry and Donna Icenhower, who in 2003 filed for bankruptcy protection under Chapter 7. During the proceeding, the Icenhowers purported to transfer the property to Howell & Gardner Investors, Inc. (H & G), a sham company whose only purpose was to hold their assets. Diaz and Barba purchased the property from H & G.

In February 2005 the bankruptcy trustee added Diaz and Barba as defendants in a fraudulent conveyance action he had filed against the Icenhowers and H & G. The trustee also filed an action to determine H & G was the Icenhowers' alter ego. Subsequently, a Hahn entity, Kismet Acquisition, LLC (Kismet), negotiated with the trustee to purchase the bankruptcy estate's assets, including an assignment of the two adversarial proceedings.2 Kismet's interest was based on its purchase of the claims of a family trust that had a claim against the bankruptcy estate. The trust had sold Villa Vista Hermosa to the Icenhowers, but problems arose. The trust sued the Icenhowers in federal court, and the court ordered them to pay damages or reconvey the property to the trust.

In June 2008 the bankruptcy court found H & G was the alter ego of Jerry Icenhower, and the Icenhowers' transfer of Villa Vista Hermosa to H & G was fraudulent. The court found the property was an asset of the bankruptcy estate, and Diaz and Barba, who had knowledge of the bankruptcy proceeding, lacked good faith and “exercised insufficient due diligence in determining whether the purchase from H & G was legally sufficient and permitted.” The court ordered that Diaz and Barba return Villa Vista Hermosa, or its value, to the bankruptcy estate.

C. Complaint Allegations

In July 2009 plaintiffs filed a first amended complaint (complaint) against defendants for tortious interference with contract, and intentional and negligent interference with prospective economic advantage. The action arises from defendants' conduct during the pendency of the fraudulent transfer action against Diaz and Barba in bankruptcy court.

The complaint alleges as follows: Hahn sought to purchase Eugenio Kocherga's minority interest in Impulsora to attract investors in La Tambora. In June 2006 negotiations began between the two men. In February 2007 they reached an oral agreement for Eugenio Kocherga's sale of his shares for $2.5 million. On February 6, 2007, the deal was memorialized in a letter agreement signed by Eugenio Kocherga. Diaz, Barba, and the Kochergas were aware of the letter agreement.

Diaz and Barba asserted pressure on Hahn to dismiss them from the fraud action in the bankruptcy proceeding. Having no success, they enlisted the Kochergas to assist them. They knew the Kochergas had a “deep emotional attachment” to Villa Vista Hermosa, and they promised the Kochergas the opportunity to purchase an interest in the property, contingent on their success in getting Hahn to dismiss them from the fraud action. Defendants attempted to sabotage the negotiations between Hahn and Eugenio Kocherga, and after the letter agreement was signed, the Kochergas influenced Eugenio Kocherga not to honor it. Eugenio Kocherga reneged on the deal, after which he used his minority interest in Impulsora to harass Hahn and derail the La Tambora project. Diaz admitted in the bankruptcy proceeding that he offered to sell the Kochergas a share of Villa Vista Hermosa on the condition they convince Hahn to dismiss the fraud action against Diaz and Barba. Further, Eugenio Kocherga admitted he reneged on the deal because Hahn refused to cooperate.

The breach of the letter agreement forced plaintiffs to reevaluate the feasibility of La Tambora because they lost financing. Plaintiffs had to put the project on hold, which caused a substantial increase in carrying costs and expenses, and deprived them of anticipated operating income and profits. Further, defendants' conduct harmed plaintiffs' business reputation and destroyed goodwill.

D. Forum Non Conveniens Motions

Diaz and Barba filed separate motions for the dismissal or stay of the action on the ground of forum non conveniens. They joined each others' motions, and the Kochergas joined Diaz's and Barba's motions. The defendants stipulated to submit to the jurisdiction of the Mexican courts, and to waive the applicable statute of limitations under Mexican law.

Additionally, Barba and Diaz submitted declarations by two Mexican attorneys stating the courts of Mexico are available and appropriate as an alternative forum. In opposition, plaintiffs presented no countervailing evidence. Rather, they challenged the sufficiency of the evidence to meet defendants' burden of proving Mexico is a suitable alternative forum, and on balance the private and public interests show Mexico is the more convenient forum. Citing federal authority, plaintiffs argued Mexico is not suitable because it does not recognize a cause of action for tortious interference with contract. (See Coufal Abogados v. AT & T, Inc. (9th Cir.2000) 223 F.3d 932, 935.)

In reply, Diaz submitted a more in depth declaration by another Mexican attorney, Alfredo Andere–Mendiolea (Andere). It explained that given defendants' stipulations, the courts of Mexico can exercise personal jurisdiction over them and the statute of limitations poses no impediment. Further, while Mexico does not recognize a cause of action for tortious interference with contract, it has subject matter jurisdiction over the dispute, and broad legal remedies for torts under the “legal doctrine of ‘acto ilicito, which “provides that any person who acts in a manner which is against the public interest or good customs and which causes damage to another person, is liable to (must indemnify) the person suffering the harm.”

Plaintiffs filed a written request to strike the Andere declaration on the ground defendants should have submitted it with their moving papers, and thus it was untimely. Plaintiffs argued they were prejudiced because they lacked the opportunity to respond to the Andere declaration with countervailing evidence.

The court issued a tentative ruling granting the defendants' motions insofar as they requested a stay. The ruling does not address plaintiffs' request to strike the Andere declaration. After a hearing, the court took the matter under submission. On October 13, 2008, the court issued an order affirming the tentative ruling.

E. Postruling Proceedings

Plaintiffs moved for reconsideration of the court's order under Code of Civil Procedure section 1008, but they did not present any evidence of new or different facts, circumstances or law, as required. (Code Civ. Proc., § 1008, subd. (a).) The motion stated plaintiffs “intend to submit evidence on Mexican law in connection with requisite jurisdictional issues,” to rebut “the late-filed evidence that was first submitted by defendants' [ sic ] with their reply briefs.”

Plaintiffs later filed an amended notice of motion. In support, plaintiffs submitted the declaration of a Mexican attorney, Oscar Tellez–Ulloa (Tellez), on Mexican law. They also requested that the court take judicial notice of provisions of Mexican law. They argued that defendants' presentation...

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