Monday, September 14, 2015

Do Not Go Gently into the Tribunal de Grande Instance

Auffret v. Capitales Tours, S.A., No. H040630 (D6 Aug. 21, 2015)

This is a forum nonconveniens case is similar to the Schmidt case we discussed back in February and the Diaz-Barbra case from April. California law affords a trial court two options if it decides that a California forum is inconvenient—it can stay or it can dismiss. Either way, a key to the analysis is that the alternative forum is “suitable.” Sometimes, a foreign forum is suitable on a theoretical basis, but there are contingencies—such a foreign courts interpretation of its own procedure—that could potentially deprive the plaintiff of any remedy at all. If that’s the case, a stay until it’s clear that the foreign forum will hear plaintiff’s claim is the preferred course.

The case involves French tourists suing only French defendants over a pretty awful bus tour accident in Monterrey County. Like in Schmidt and Diaz-Barberra, the trial court initially stayed the case, finding France suitable so long as its courts ultimately agreed to accept jurisdiction. The stay was affirmed on appeal. Defendant then initiated proceedings filed in France and the case proceeded to kick around the French judicial system for a number of years as those courts hashed out whether they had jurisdiction. Plaintiffs generally resisted it, presumably in the hopes that they could reignite the litigation here if the French courts declined to act.

At the time of the remand from the first California appeal, a French trial court had declined jurisdiction. An intermediate court had made a somewhat confusing ruling partially reversing that ruling. And the case remained pending before the Cour de Cassation, the French high court for private law matters. Defendant nonetheless moved to dismiss the California case shortly after the remittitur issued. It argued that notwithstanding that France had previously been ruled a suitable forum,
plaintiffs resisted to French jurisdiction. Given those facts, the intermediate French court’s partial reversal of the non-jurisdiction finding merited termination of the California case. The trial court agreed. Plaintiffs appealed.

The court of appeal reverses, holding that the record before the trial court merited reversal. Plaintiffs did not outright refuse to take any action at all in the French courts. They simply elected to challenge those courts’ jurisdiction. Nothing in the prior ruling required plaintiffs to consent to jurisdiction there, even if France was a seemingly suitable forum. The trial court thus could not effectively sanction plaintiffs for objecting to the French courts’ jurisdiction. 

While this appeal was pending, however, the record changed. The Cour de Cassation came down with its decision. Defendant submitted an English translation copy and asked for judicial notice of it. But as any U.S. trained lawyer familiar with French judicial opinions will tell you, even in translation, it can be very difficult to tell what’s going on. The writing style can be dense, formalistic, and very heavily inflected with civil-law jargon. (Even more so than bad
U.S. judicial work product.) Here, even with a translation, the court of appeal says it “simply cannot discern from the decision of the Cour de Cassation whether the alleged liability of [Defendant] to plaintiffs will be adjudicated in France.” 

Interpreting the ruling is a question of foreign law subject to judicial notice. See Cal. Evid. Code §§ 310(b), 452(f). But the Evidence Code specifically permits a court to enlist the assistance of foreign law experts in making that determination. See Cal. Evid. Code § 454(b) (court can take advice of persons learned in the subject matter in taking judicial notice of foreign law); see also Gallegos v. Union-Tribune Pub. Co., 195 Cal. App. 2d 791, 797 (1961) (addressing procedure under prior codification of same rule). The better course then, is to remand to let the trial court work out the impact of the ruling in the first instance.


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