Filed 1/31/20 Berman v. Minnesota Lawyers Mutual Insurance Co. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE
JOHN BERMAN,

Plaintiff and Appellant,

v.

MINNESOTA LAWYERS MUTUAL INSURANCE COMPANY,

Defendant and Respondent.

A155394

(City & County of San Francisco

Super. Ct. No. CPF-18-516120)

John Berman appeals from an order staying his declaratory relief action against Minnesota Lawyer’s Mutual Insurance Company (MLM) on forum non conveniens grounds. The trial court’s determination that an ongoing action in Maryland presented a more suitable forum for Berman’s claims was within its discretion, so we affirm.

BACKGROUND

This is the second time this court has addressed Berman’s longstanding dispute with David Modell, a Maryland attorney and the former court-appointed trustee of the estate and guardian of the property of Berman’s deceased mother. In Berman v. Modell (Nov. 7, 2018, A149771) 2018 WL 5817085 [nonpub. opn.](Berman I)), Division Four affirmed a 2016 order in a different action granting Modell’s motion to quash service of summons for lack of personal jurisdiction and dismissing Modell from the action. (Id. at pp. 6–7, 13.) Much of the background of this current appeal is set forth in the Background section of Division Four’s opinion, which we incorporate by reference.

Briefly put, Berman and his brother are the remainder beneficiaries of the Bella Berman Living Trust, which was formed by Berman’s mother in Maryland and administered by Modell in Maryland. Bella Berman died in October 2017. Most or all of the trust assets are located in Maryland. None are located in California.

In 2012, Berman relocated with his mother from Maryland to California. In 2013 he sued Modell in the United States District Court for the Eastern District of California for torts including conversion, abuse of process and breach of fiduciary duty. Modell successfully moved to transfer the action to the federal district court in Maryland. Berman appealed the transfer order to the Ninth Circuit Court of Appeals and the United States Supreme Court, each time without success. In December 2014, the federal district court in Maryland granted Modell’s motion to dismiss the action. The Court of Appeals for the Fourth Circuit affirmed.

In November 2014, Berman sued Modell, a second Maryland attorney, the state of Maryland and a Maryland trial judge in the Yolo County Superior Court, alleging the defendants interfered with Berman’s relationship with Ms. Berman after their move to California. Specifically, the complaint alleged Modell attempted to coerce Berman to establish a California guardianship for Ms. Berman by refusing to reimburse various “loans” he made to her and asking the Maryland court to transfer the guardianship case to California. It was alleged that the Maryland judge violated Berman’s rights by ordering that Ms. Berman return to Maryland if it was safe for her to fly, and that the other attorney defendant violated Berman’s rights by facilitating communications between the Maryland court and Ms. Berman’s doctors in California. Berman later amended the complaint to name Modell as the sole defendant. The amended pleading alleged jurisdiction in California because Ms. Berman resided there and Modell had taken “ ‘coercive’ ” actions with intended consequences in the state.

The case was briefly transferred to the District Court for the Northern District of California and then remanded to Alameda County Superior Court, where Modell moved to quash service of Berman’s summons for lack of personal jurisdiction. In August 2018 the trial court granted the motion and dismissed the case with prejudice. Division Four of this court affirmed, agreeing with the trial court’s finding that Modell did not purposefully avail himself of the benefits of a California forum.

All of that leads us to the present action. In March 2018, Berman filed a petition for declaratory relief relating to an insurance contract against Modell’s professional liability insurer, MLM, in superior court in San Francisco. The petition alleged that MLM was improperly seeking subrogation as a creditor against Berman’s share of the trust assets for the costs it incurred defending Modell in the California and Maryland litigation, thereby causing Modell to withhold the amount of the claim from any distribution. Berman alleged he never sued Modell in his professional capacity as trustee, but, rather, as an individual and guardian of Ms. Berman’s property, “which role was separate from any trustee role.” “Thus, even if attorney fees were due [MLM], which they are not, the fees would not be due from any trust.” Berman also asserted Modell waived any right to attorneys’ fees by failing to petition for them after judgment was entered in the various actions. The petition sought a judicial declaration that “[MLM]—having no greater rights than Modell in any subrogation action—has no right to collect reimbursement for expenditures on Modell’s defense because Modell, having failed to petition for expenses, waived any right to collect expenses for his defense.” Berman claimed that all of the information needed to establish the purported waiver could be ascertained from the public records in the two California lawsuits.

Modell moved to dismiss or stay the declaratory relief action on forum non conveniens grounds. He asserted California was a “seriously inconvenient forum” (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611) because “a party who should be joined is Mr. Modell, the defendant/trustee, who allegedly waived his right to recover attorney’s fees and costs in the two underlying cases brought by Plaintiff—and the subrogation claim that is in dispute will ultimately be presented to Mr. Modell as trustee of the Maryland trust. Mr. Modell, as already adjudicated in the action pending in the California Court of Appeal, First Appellate District, is not subject to personal jurisdiction here. In contrast, the issues tendered by the Petition, i.e., whether Mr. Berman sued Mr. Modell as trustee, whether Mr. Modell waived his right to seek attorney’s fees and costs against Plaintiff after prevailing in the two actions, and whether Mr. Modell as Trustee of the Bella Berman Living Trust can credit MLM’s subrogation claim—can all be litigated in Maryland. That simply is not true of California, unless the Court rules on Plaintiff’s contentions in the absence of Mr. Modell, MLM’s insured and the trustee of The Bella Berman Living Trust.” Modell also petitioned the Circuit Court for Montgomery County, Maryland, to assume jurisdiction over the trust.

After briefing and argument, the trial court granted MLM’s motion to stay. It explained: “[A]lthough Berman is a California resident, MLM has rebutted the presumption in favor of his choice of forum. The Court finds that Maryland is a suitable alternative forum, all of the interested parties are subject to jurisdiction in that forum, and there is no showing that the petition filed by trustee David Modell, which is likely to resolve the issues in this case, is time barred. Thus, the public and private factors that are set forth in Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751 weigh in favor of staying this action. Berman’s petition is about a Maryland trust and the conduct of a Maryland-based trustee. The Court also finds that: (1) the allegations of the petition indicate that trustee issues are involved in this case and the prior actions . . . and (2) California does not have an interest in this case because the prior suits were brought here, as the fundamental issue among the parties is the distribution of funds from a Maryland trust.” Accordingly, the court stayed Berman’s action pending resolution of Modell’s Maryland petition.

Berman’s appeal is timely.

DISCUSSION

Section 410.30, subdivision (a) of the Code of Civil Procedure permits a court to stay or dismiss an action “in whole or in part on any conditions that may be just” when it “finds that in the interest of substantial justice an action should be heard in a forum outside this state.”

The relevant legal principles are stated in National Football League v. Fireman’s Fund Ins. Co. (2013) 216 Cal.App.4th 902 (National Football League). “A trial court considering a forum non conveniens issue engages in a two-step process; the first step is to determine whether a suitable alternative forum exists. [Citations.] Where there is a suitable alternative forum, the court proceeds to the next step, consideration of the private interests of the parties and the public interest in keeping the case in California. [Citations.] [¶] ‘ “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.” [Citation.] The residences of the plaintiff and the defendant are relevant, and a corporate defendant’s principal place of business is presumptively a convenient forum. [Citation.] If the plaintiff is a California resident, the “plaintiff’s choice of a forum should rarely be disturbed unless the balance is strongly in favor of the defendant. [Citations.]” The public interest factors include avoidance of overburdening California courts, protecting potential jurors who should not be called on to decide cases in which the local community has little concern, and weighing the competing ties of California and the alternate jurisdiction to the litigation.” (Id. at p. 917.)

The party seeking a stay or dismissal on forum non conveniens grounds bears the burden of proof. We review the trial court’s weighing and balancing of private and public factors for abuse of discretion and accord substantial deference to its ruling. (National Football League, supra, 216 Cal.App.4th at p. 918.) We “ ‘cannot reweigh the evidence or draw contrary inferences. [Citations.] We presume the trial court found every fact and drew every reasonable inference necessary to support its determination. [Citation.] We cannot reject evidence accepted by the trial court as true unless it is physically impossible or its falsity is obvious without resort to inferences or deduction.’ ” (Ibid.) “ ‘We “will only interfere with a trial court’s exercise of discretion where [we find] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could have reasonably reached the challenged result.” ’ [Citation.] ‘ “ ‘[A]s long as there exists “a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be . . . set aside.’ ” ’ ” (Id. at p. 918.)

The court’s ruling in this case was well within its discretion. This is, essentially, a Maryland trust dispute. It concerns actions taken by Modell, a Maryland attorney appointed by the Maryland court to serve as trustee of a trust established and administered in Maryland, and whether those actions bar MLM’s subrogation claim against Berman’s share of the trust assets. The trust assets are located exclusively or primarily in Maryland and subject to the jurisdiction of the Maryland courts. MLM and Modell are subject to jurisdiction in Maryland, while California lacks personal jurisdiction over Modell and has at best tangential ties to the litigation.

This record presents no basis to disturb the trial court’s reasoned decision. Nor do Berman’s arguments, which appear primarily to address whether Modell is a necessary and/or indispensable party rather than whether the court’s finding that the action should “in the interest of substantial justice” (§ 410.30, subd.(a)) be heard in Maryland exceeded its discretionary authority. As Division Four of this court observed in Berman I, supra, 2018 WL 5817085 “many of Berman’s appellate arguments are either irrelevant or incomprehensible. We are cognizant that Berman is representing himself, but his status as a propria persona litigant does not exempt him from the rules of appellate procedure or relieve his burden on appeal.” (Id. at p. *4.) The court elaborated, “to the extent Berman complains to this court that certain errors occurred below but fails to offer pertinent or intelligible argument to support his position, we are not required to address the alleged errors and hereby deem them waived. . . . By the same token, we will not address many issues Berman discusses in his appellate briefs that have no bearing on the disposition of this appeal.” (Ibid.) So, too, here.

DISPOSITION

The order staying the action is affirmed. MLM’s August 13, 2019 request for judicial notice and Berman’s July 19, 2019 “excerpts of record,” which we construed as a request for judicial notice, are denied as irrelevant to resolution of the issue presented on appeal. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [only relevant material is subject to judicial notice].)

 

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Fujisaki, J.

_________________________

Petrou, J.

Berman v. Minnesota Lawyers Mutual Ins. Co., A155394