Case Number: BC530896 Hearing Date: April 17, 2014 Dept: 93

Defendant Con-Way Freight, Inc.’s Motion to Stay or Dismiss Action is DENIED. Colorado is not a suitable forum for the instant action, and the balance of private factors is not so strongly in Colorado’s favor to disturb Plaintiffs Vernon E. Murray and Sandra Murray’s choice of forum.

“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.” CCP § 410.30. In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternative forum is a “suitable” place for trial.

“[T]he action will not be dismissed unless a suitable alternative forum is available to the plaintiff [citations]. Because of … [this] factor, the suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states. The same will be true if the plaintiff’s cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant’s stipulation that he will not raise this defense in the second state [citations].” (Judicial Council com., 14 West’s Ann. Code Civ. Proc. (1973 ed.) § 410.30, pp. 492-493, hereinafter referred to as Judicial Council Comment.)
Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 752.

If the alternative forum is suitable, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. 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. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. Id. at 751.

Discussion

Con-Way has not demonstrated that Colorado is a suitable forum for the instant action. Indeed, by Con-Way’s own admission, the statute of limitations in Colorado for personal injury actions is three years. Col. Rev. Stat 13-80-101(1)(n). The accident giving rise to the instant action took place on January 28, 2011. Therefore, the statute of limitations for bringing a personal injury action in Colorado expired on January 28, 2014. It appears that the Murrays were informed of the Colorado statute of limitations several times by their claims adjuster. Motion, Sutherland Decl., ¶¶ 5-7 and Exh. B. Although Con-Way argues that this motion should not be denied because of the Murrays’ deliberate failure to file in Colorado within the statute of limitations, it provides no legal authority for finding Colorado a suitable forum under these circumstances. Con-Way points to no exception to the suitable forum determination simply because the plaintiff may have deliberately ignored the statute of limitations. The only way to get around the statute of limitations in Colorado is if “the court is willing to accept the defendant’s stipulation that he will not raise this defense in the second state.” Stangvik, 54 Cal.3d at 752. Con-Way has not submitted such a stipulation. Therefore, Colorado is not a suitable forum for this action.
Even if the Court were to determine that Colorado is a suitable forum for this action, Con-Way has not demonstrated that the private factors weigh strongly in Colorado’s favor. “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.” National Football League v. Fireman’s Fund Insurance Company (2013) 216 Cal.App.4th 902, 917 (emphasis added). Here, the balance of factors is fairly even between Colorado and California. Most of the witnesses with respect to the accident’s occurrence and the question of liability are situated in Colorado, where the accident took place. Most of the witnesses with respect to the Murrays’ injuries and damages are situated in California. Oppo., S. Murray Decl., ¶ 5; V. Murray Decl., ¶ 2. Even if a presumption of negligence exists against the defendants with respect to liability due to the fact that this was a rear-end collision, see Bettner v. Boring (Colo. 1988) 764 P.2d 829, 832-33, Con-Way indicates it will strongly challenge such a presumption. Accordingly, the testimony of eyewitnesses and first-responders will be necessary to determine liability. Although Con-Way contends that the Murrays will only have to call one or two witnesses regarding their injuries, it provides no evidence to support this argument. Sandra Murray treated with 13 different healthcare providers in California, and there is nothing to show that their testimony will be overlapping. See Oppo., S. Murray Decl., ¶ 5. Finally, Colorado’s interest in hearing the case because of the accident location is not any more pressing than California’s interest in hearing a case involving its residents. See Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 742-43. Therefore, Con-Way has not demonstrated that the Murrays’ choice of forum should be disturbed.

Moving parties are ordered to give notice.