Mexican Losses Are Plaintiff’s Wins

Diaz-Barba v. Superior Court, No. D066462 (D4d1 May 21, 2015)

A California state court has two options in granting a forum non-conveniens motion: it can dismiss the case entirely or it can issue a stay pending the resolution of the action in another jurisdiction. The latter approach is particularly popular in international cases where it appears that the parties could get justice in a foreign jurisdiction, but it’s not 100 percent certain. If the foreign litigation doesn’t work out, the stay can be lifted and the case proceeds here. 

In this case, the trial court granted a non-conveniens motion, staying the case in favor of yet-to-be-filed litigation in Mexico. In 2012, Plaintiffs moved to lift the stay, arguing that defendants’ witness intimidation and misuse of the Mexican criminal process prevented Plaintiffs from fairly litigating in there. The court denied the motion on the grounds that plaintiffs had never actually filed a case in Mexico. Following that ruling, plaintiffs filed two seemingly halfhearted complaints in Mexico City, both of which were eventually dismissed on procedural grounds—one because it was filed in the wrong form and the other because the defendants are domiciled in California. Plaintiffs returned to state court and again moved to lift the stay, arguing that the Mexican courts were not, in fact, an available forum.

Defendants argued that plaintiffs took a procedural dive in their cases in Mexico, which should not suffice to get the stay lifted. After hearing testimony from several experts in Mexican law, the trial court disagreed. Because it found that Mexican procedural law made it impossible to litigate the merits of the case there, the trial court lifted the stay and ordered the case to proceed. Defendants took a writ.

A plaintiff who loses a forum non-conveniens motion has an obligate to litigate in the other jurisdiction in good faith. Defendants here say that Plaintiffs’ second Mexican complaint failed because it did not inform the Mexican court that various acts involved in the lawsuit occurred in Mexico and that all defendants had stipulated to Mexican jurisdiction back when they originally moved on forum non. But the expert testimony on Mexican law showed that these facts wouldn’t make any difference. The Mexican courts’ jurisdiction turned exclusively on the domicile of the defendants. Nor were Plaintiffs required to appeal their case in Mexico because, as the experts explained, any appeal wouldn’t have any merit.  Finally, Defendants pointed to a declaratory relief case that they themselves had filed in Mexico after Plaintiffs’ motion to lift the stay had been fully briefed. But the court declines to consider this argument because Defendants’ brief failed to fairly recount to facts at issue, and thus they waived any review. In sum, the trial court didn’t abuse its discretion by lifting the stay.

In the course of coming to its decision, the trial court appointed a neutral Mexican law expert under Evidence Code § 460, which permits the court to appoint an advisor in connection with taking judicial notice. (In California state court, foreign law technically comes in through permissive judicial notice, see Evidence Code § 452(f).) The parties agreed to the appointment for the purposes of submitting a declaration on Mexican procedure, subject to their rights to file a response to his declaration. When defendants made their response, however, they further requested to cross-examine the expert under Evidence Code § 732, which permits the parties to cross examine court-appointed experts in the same manner as party-called witnesses. 

But the trial court in this case wasn’t required to permit cross examination. Because the testimony was offered in connection with a law and motion matter, where cross-examination is generally not required, see Cal. R. Ct. 3.1306(a), § 732 was not implicated. And in any event, by accepting the written declaration/party response procedure that the court put into place when it appointed the expert, Defendants waived any right to demand to cross examine the witness.

Writ denied.