Hemmelgarn v. Boeing Co.

• Decision Date: 05 June 1980
• Citation: 106 Cal.App.3d 576,165 Cal.Rptr. 190
• Court: California Court of Appeals Court of Appeals
• Parties: Jacqueline Lorraine HEMMELGARN, etc., et al., Plaintiffs and Appellants, v. BOEING COMPANY et al., Defendants and Respondents. Stuart MISKOW, etc., Plaintiff and Appellant, v. BOEING COMPANY et al., Defendants and Respondents. Maria Guilia GUIRIATO et al., Plaintiffs and Appellants, v. BOEING COMPANY et al., Defendants and Respondents. Civ. 18869.

Page 190

165 Cal.Rptr. 190

106 Cal.App.3d 576

Jacqueline Lorraine HEMMELGARN, etc., et al., Plaintiffs and Appellants, v. BOEING COMPANY et al., Defendants and Respondents.

Stuart MISKOW, etc., Plaintiff and Appellant, v. BOEING COMPANY et al., Defendants and Respondents.

Maria Guilia GUIRIATO et al., Plaintiffs and Appellants, v. BOEING COMPANY et al., Defendants and Respondents.

Civ. 18869.

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

June 5, 1980.

Hearing Denied July 30, 1980.

Sterns, Bostwick & Tehin and John C. Elstead, San Francisco, for plaintiffs and appellants.

Perkins, Coie, Stone, Olsen & Williams and Keith Gerrard and Thomas J. McLaughlin, Seattle, for defendant and respondent, The Boeing Company.

Gibson, Dunn & Crutcher and Robert Forgnone and Gregory G. Hollows, Los Angeles, for defendant and respondent, Rohr Industries, Inc.

WIENER, Associate Justice.

The doctrine of inconvenient forum which permits an action to be removed to another state or country for trial is "by its nature a drastic remedy to be exercised . . . with caution and restraint." (Bechtel Corp. v. Industrial Indem. Co. (1978) 86 Cal.App.3d 45, 49, 150 Cal.Rptr. 29, 31.) Where the plaintiff is a resident of this state and decides to sue here the trial court cannot dismiss the action. (Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 859, 126 Cal.Rptr. 811, 544 P.2d 947.) Even where the plaintiff is out of state, but willing to shoulder the burden of inconvenience and additional expense of litigation in California, the motion to dismiss should be denied if plaintiff claims defendants are companies incorporated in California, maintain their principal place of business here, and conduct themselves here so as to cause injuries to others in another state. (Brown v. Clorox Co. (1976) 56 Cal.App.3d 306, 313, 128 Cal.Rptr. 385.) Even where all parties to a cross-complaint are non-residents of this state, the motion to dismiss may be properly denied if it serves California's public interest to retain the case. (See International Harvester Co. v. Superior Court (1979) 95 Cal.App.3d 652, 157 Cal.Rptr. 324 (California's policy of apportionment of damages among defendants according to their respective fault justified California retaining jurisdiction over a cross-complaint for indemnity after the principal case was settled and dismissed).)

It is within this framework we review the appeal from judgments entered after the trial court conditionally granted defendants' motions to dismiss on the grounds of inconvenient forum. (Code Civ.Proc., § 410.30.) The order for dismissal was conditioned on defendants, Rohr Industries, Inc. (Rohr) and The Boeing Company (Boeing) submitting to the jurisdiction of the British Columbia courts. We conclude under the circumstances of these wrongful death actions brought on behalf of Canadian decedents arising from an airplane crash which occurred in Canada where only a single defendant, Rohr, is a California resident and all other defendants who are potentially liable for damages are residents of either Canada or the State of Washington, that plaintiffs' choice of forum must be subordinated to the cumulative weight of other important considerations bearing upon the trial court's exercise of discretion. These factors include, but are not limited to, the furtherance of California's interest in assuring to one of its residents, Rohr, in a single proceeding in Canada in which all defendants are before the court the complete apportionment of damages among those responsible for the accident. We affirm the judgments.

Factual and Procedural Background

On February 11, 1978, 43 people were killed in the crash of a Boeing 737, Pacific Western Airlines' Flight 314, at the Cranbrook Airport in British Columbia, Canada. Wrongful death actions arising from that tragic accident are now on file in Canada and in both federal and state courts in California. ¹

This appeal involves three such actions filed in the Superior Court for San Diego County in which Boeing, Rohr and PWA are named as defendants. PWA was never served. Each plaintiff alleges that Boeing and Rohr are liable because of the negligent and defective design, instruction and warning regarding the thrust reverser and associated systems of the aircraft.

Flight 314 was to go from Calgary, Alberta, to British Columbia, Canada. At 12:33 p. m., Calgary Air Traffic Control called Cranbrook Aeradio and advised the plane's estimated time for arrival (E.T.A.) at Cranbrook Airport was 1:05 p. m. Cranbrook time. Both of these communication centers are operated by employees of Transport Canada, a Canadian Federal Government cabinet-level department headed by the Minister of Transport. The E.T.A. was radioed to a snow sweeper which was clearing the snow from the Cranbrook runway. As a matter of routine procedure, the snow sweeper was to vacate the runway several minutes before the landing. At 12:47 p. m., Cranbrook Aeradio told Flight 314 it was snowing and snow removal equipment was on the runway. At approximately 12:55 p. m. ten minutes ahead of schedule without further communication, the aircraft started its final approach. After it touched down and traveled a short distance, the pilot apparently saw the snow sweeper. In order to avoid a collision he attempted to execute an immediate "go-around" and land again. The aircraft ultimately attained an altitude in excess of 200 feet, banked sharply to the left and crashed near the end of the runway. Investigation revealed that during the landing the engine power levers were in reverse thrust to assist in braking the plane. Thereafter, to accomplish the "go-around" maneuver a forward thrust power setting was selected.

A coroner's inquest was convened in accordance with British Columbia law to determine the cause of the crash. After six days of testimony and evidence, the coroner's jury concluded the contributing causal factors were inadequate communication and the pilot's decision to abort the landing.

The jury found Calgary Air Traffic failed to calculate a reasonably accurate E.T.A., the flight crew did not effectively communicate an accurate E.T.A. to Cranbrook Aeradio, Cranbrook Aeradio failed to ask the pilot for an updated E.T.A. and the pilot did not determine whether the snow removal equipment had left the runway. The jury further found the pilot's decision to attempt a "go-around" was contrary to a caution issued to PWA pilots because of the risk of possible failure of a thrust reverser to return to the forward position after reverse thrust had been initiated. ²

PWA, Boeing, the Government of Canada and the City of Cranbrook have entered into an agreement authorizing PWA to negotiate settlements of all passenger claims, leaving the ultimate allocation of responsibility on the basis of respective fault for later resolution. Pursuant to the agreement, PWA through respective counsel has contacted every claimant offering to negotiate a settlement or to stipulate to liability and to try the issue of damages in Canada if a negotiated settlement cannot be reached. A fund in Canada for payment of judgments and settlements has been created.

The Doctrine of Inconvenient Forum

The doctrine of inconvenient forum has been codified as Code of Civil Procedure section 410.30. (Great Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105, 109, 90 Cal.Rptr. 461.) It provides in subdivision (a):

"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."

The doctrine is basically equitable in nature, "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." (Leet v. Union Pac. R. R. Co. (1944) 25 Cal.2d 605, 609, 155 P.2d 42, 44.) Consequently, the determination of whether to apply the doctrine rests within the sound discretion of the trial court, to be exercised on a case-by-case basis and "in conformity with the spirit of the law and in a manner to subserve and not impede the ends of substantial justice." (Great Northern Ry. Co. v. Superior Court, supra, 12 Cal.App.3d at p. 110, 90 Cal.Rptr. at p. 465.) The trial court's determination will not be disturbed on appeal absent the showing of an abuse of discretion, which appears when the order is unsupported by substantial evidence under apposite law. (Bechtel Corp. v. Industrial Indem. Co., supra, 86 Cal.App.3d at p. 48, 150 Cal.Rptr. 29; Brown v. Clorox Co., supra, 56 Cal.App.3d at pp. 310-311, 128 Cal.Rptr. 385.)

The primary factors which must be weighed by the trial court in ruling on the motion are firmly established and have been articulated in a number of decisions applying the doctrine. (See e. g. Judicial Council Comment to Code Civ.Proc., § 410.30; Great Northern Ry. Co. v. Superior Court, supra, 12 Cal.App.3d 105, 113-115, 90 Cal.Rptr. 461; International Harvester Co. v. Superior Court, supra, 95 Cal.App.3d 652, 656, 157 Cal.Rptr. 324; Belnap Freight Lines, Inc. v. Petty (1975) 46 Cal.App.3d 159, 162, 119 Cal.Rptr. 907; Gould, Inc. v. Health Sciences, Inc. (1976) 54 Cal.App.3d 687, 693, 126 Cal.Rptr. 726.) They include the amenability of the parties to personal jurisdiction in this state and in the alternative forum; the relative convenience to the parties and trial witnesses of the competing forums; the differences in the conflict of law rules applicable in the competing forums; the selection of a convenient, reasonable and fair place of trial; defendant's principal place of business; the extent to which the cause of action arose out of events related to this state; the extent to which any party will be substantially disadvantaged by a trial in either forum; the relative...