Metropolitan News-Enterprise


Monday, May 1, 2017


Page 1


C.A. Reinstates Bid to Move Bicycle Accident Suit to Canada

Panel Says Defendant Need Not Prove That Local Forum Is ‘Seriously’ Inconvenient




A defendant seeking to block California litigation on forum non conveniens grounds need not prove that the local forum is “seriously” inconvenient if the plaintiff is not a California resident, the Sixth District Court of Appeal has ruled.

The justices Thursday ordered a Santa Clara Superior Court judge to reconsider the denial of Fox Factory, Inc.’s motion to dismiss or stay a suit by Peter Isherwood. Judge Beth McGowen used the wrong standard, the court said, giving too much deference to the desire of Isherwood, a British Columbia resident, to sue in California.

Fox Factory, a California corporation, makes front fork racing shocks for bicycles, among other things. Isherwood suffered a spinal cord injury while mountain biking downhill in his home province in 2011.

He filed two lawsuits in April 2011. His Santa Clara Superior Court complaint named Fox as defendant, along with other U.S.-based components manufacturers. He alleged that a steerer tube used in the Fox shock absorbers broke as he landed a jump.

The other suit was filed in Vancouver, B.C. and named the owner of the shop where he bought the bicycle as defendant.

Summary Judgment

After the other defendants in the Santa Clara action obtained summary judgment, Fox moved to dismiss or stay the proceedings, saying the claims should be litigated in Canada where the plaintiff and the witnesses were located. The company said it would be at a disadvantage if forced to litigate in California, since it could not compel the attendance of Canadian witnesses, and because it could not seek contribution or indemnity from the seller of the bike.

McGowen ruled that British Columbia was a suitable forum, but that the balance of relevant factors supported the conclusion “that California is not an inconvenient forum.” She cited Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, which held that the test of forum non conveniens was not whether another forum was preferable, but whether the California forum was seriously inconvenient.

Fox sought a writ of mandate, and the Court of Appeal issued a stay and an order to show cause.

C.A. Opinion

Justice Franklin Elia, writing for the Court of Appeal, agreed with the defendant that the “seriously inconvenient” test does not apply where, unlike in Ford, the plaintiff is not a California resident.

He cited National Football League v. Firemans Fund Insurance Company (2013) 216 Cal.App.4th 902, which held that the NFL’s state of residence is New York, not California, and that the defendant insurers should not be required to litigate here.

“We…reject plaintiff’s implicit suggestion that in every case great weight is required to overcome a nonresident plaintiff’s forum choice,” he wrote. “Even if we were reviewing a dismissal order in a suit brought by a California resident—we would not subscribe to the analysis employed in Ford.”

Elia also rejected, as speculative, the plaintiff’s argument that the error was harmless because the judge would have denied the motion even if she had applied a different standard. He also rejected, however, the defendant’s argument that application of the proper standard must necessarily result in the motion being granted.

The case is Fox Factory, Inc. v. Superior Court (Isherwood), 17 S.O.S. 2211.


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