Marybelle ARCHIBALD, on behalf of herself and others similarly situated, Appellant, v. CINERAMA HOTELS et al., Respondents.
Marybelle Archibald, the plaintiff, appeals from an order of the Sacramento superior court which dismissed her class suit under the rule of forum non conveniens embodied in Code of Civil Procedure section 410.30, subdivision (a). That statute declares: ‘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.’
Ms. Archibald, a California resident, sues on behalf of herself and other California residents who visit the state of Hawaii. She alleges that Hawaiian hotels have, by agreement, established a discriminatory rate structure which imposes on mainland visitors and tourists a higher room rental than the rate (called kamaaina rate) charged to residents of Hawaii. Named as defendants are a group of firms which own or keep more than 40 hotels and motels in Hawaii. An additional defendant is American Express Company, whose hotel reservation facilities are used by plaintiffs and many others of her class. Plaintiff alleges that she was the subject of the alleged price discrimination on visits to Hawaii in 1971 and 1972; that the same price discrimination is practiced against the other members of the class, that is, California residents who travel to Hawaii and stay at Hawaiian hotels.
All the named defendants joined in moving to dismiss the action on the ground of forum non conveniens. One defendant, Waikiki Hotels-Seven, also moved to quash service of summons on the ground that its contacts within California were insufficient to vest the California courts with jurisdiction over it. The trial court granted both motions. Through a minute order and a signed formal order, the court found that in the interests of substantial justice the action could be more conveniently tried in the Hawaiian courts.
Code of Civil Procedure section 410.30 is a statutory expression of the judicially established doctrine of forum non conveniens, which authorizes a court in its discretion to decline the exercise of jurisdiction when the action may more appropriately and justly tried elsewhere. (Leet v. Union Pacific R.R. Co., 25 Cal.2d 605, 609, 155 P.2d 42.) The doctrine is typically applied to litigation where all the parties are nonresidents and the claim arose outside the forum state. It has only ‘an extremely limited application’ where, as here, the plaintiff is a California resident. (Thomsos v. Continental Ins. Co., 66 Cal.2d 738, 742, 59 Cal.Rptr. 101, 427 P.2d 765; Hadler v. Western Greyhound Racing Circuit, 34 Cal.App.3d 1, 5, 109 Cal.Rptr. 502.) ‘A determination that a plaintiff is domiciled here [in California] would ordinarily preclude granting the defendant's motion for dismissal on the ground of forum non conveniens.’ (Goodwine v. Superior Court, 63 Cal.2d 481, 485, 47 Cal.Rptr. 201, 204, 407 P.2d 1, 4.)
The preference given to resident plaintiffs is not a parochial California manifestation; rather, it is one aspect of the doctrine as evolved in American decisional law. The rule reflects a policy of the forum state to provide its own residents redress in the courts maintained for their benefit; in some jurisdictions the forum non conveniens rule is simply unavailable to a defendant sued by a resident plaintiff; in others, the plaintiff‘s local residence weighs the balance of convenience in his favor; California law creates a reasonable presumption in favor of the resident plaintiff; the California court will be the appropriate forum except in unusual circumstances. (Thomson v. Continental Ins. Co., supra, 66 Cal.2d at pp. 742–745, 59 Cal.Rptr. 101, 427 P.2d 765; Hadler v. Western Greyhound Racing Circuit, supra, 34 Cal.App.3d at pp. 5–6, 109 Cal.Rptr. 502.) In the ordinary situation a nonresident business firm which draws profit from activity in the forum state has little basis for a complaint of inconvenience when required to defend itself in that state. (Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893, 900, 80 Cal.Rptr. 113, 458 P.2d 57.)
When a forum non conveniens motion is granted, section 410.30 gives the trial court the alternative of dismissal or stay. Here the trial court chose the former. The relative unavailability of a dismissal as contrasted with a stay was described in Thomson, supra, 66 Cal.2d at pages 744–747, 59 Cal.Rptr. 101, 427 P.2d 765, More recently, the State Supreme Court has declared that a court may stay but may not dismiss an action for forum non conveniens if a party is a California resident. (Ferreira v. Ferreira, 9 Cal.3d 824, 838, 109 Cal.Rptr. 80, 512 P.2d 304.)
The judgment of dismissal must be reversed, because the California plaintiff was vulnerable at most to a stay. Nevertheless, we go farther and consider the propriety of defendants' motion on its merits.
Initially, we seek out the boundaries of judicial review. Authoritative decisions view forum non conveniens as the discretionary power of a court to decline jurisdiction when it believes that trial in another forum is more appropriate and just. (Gulf Oil Co. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055; Koster v. Lumbermens Mutual Cas. Co., 330 U.S. 518, 528, 67 S.Ct. 828, 91 L.Ed. 1067; Price v. Atchison, T. & S. F. Ry. Co., 42 Cal.2d 577, 580, 268 P.2d 457; Leet v. Union Pacific R.R. Co., supra, 25 Cal.2d at p. 609, 155 P.2d 42.) From this premise a number of courts have drawn the deduction—erroneous in our view—that discretion belongs to the trial court alone; that the appellate court is relegated to a relatively narrow, abuse-of-discretion review. (National Life of Florida Corp. v. Superior Court, 21 Cal.App.3d 281, 288, 98 Cal.Rptr. 435; see also, Rest. (2d) Conflict of Laws, § 84; 20 Am.Jur.2d, Courts, § 175; Ryan and Berger, Forum Non Conveniens in California, 1 Pac.L.J. 532, 535.)
Defendants, understandably, rely heavily on this notion. They point to the stereotype that “discretion is abused whenever . . . the court exceeds the bounds of reason, all of the circumstances before it being considered.” (See, e. g., State Farm etc. Ins. Co. v. Superior Court, 47 Cal.2d 428, 432, 304 P.2d 13, 15.) In effect, defendants argue that we must not substitute our own judgment for that of the trial court; rather, that we may only inquire whether the trial court's action ‘exceeded the bounds of reason.’
In referring to discretionary power over the convenient forum disposition, the authoritative decisions of the federal and California supreme courts speak generally of judicial discretion; do not assign differing allotments of discretion to the various levels of the judicial hierarchy; do not vest trial courts with broader discretion than appellate courts; do not relegate the latter to the limited, abuse-of-discretion variety of review.1
Judicial discretion (not to speak of administrative discretion) embraces an enormous array and endless variety of decisions. (See generally, Davis, Discretionary Justice, A Preliminary Inquiry (1969).) The cliché permitting appellate interference only when the action ‘exceeds the bounds of reason’ should not be applied across the board. The board is far too broad. The rule is salutary when the original tribunal is in a better position to make the inquiry; it falters when both tribunals have equal access to the guiding factors. To allocate power between trial and appellate courts because the former act first is unalloyed superstition. Allocations of power within the judicial hierarchy depend upon factors other than the sequence in which they act.
The assumption is groundless that breadth of discretion inevitably diminishes as the case passes from original to reviewing tribunals. The relative capabilities of the original and reviewing agencies vary with the character of the decision—whether a question of fact, one of law, one of ‘mixed’ law and fact, a judgmental question or one of policy. (See Weiner, The Civil Nonjury Trial and the Law-Fact Dichotomy, 55 Cal.L.Rev. 1020.) Some discretionary decisions are relatively free of law-imposed standards; others are hedged by mandatory, substantive rules. When discretion is circumscribed by rule and the facts are fixed, an appellate court is better equipped than a trial court, because it has the benefit of collegial discussion, more deliberation, more time for research, and (often) better briefing. In any event, the limited, abuse-of-discretion variety of review may not be invoked to insulate errors of law from appellate interference.
We reject the forum non conveniens decisions which confine appellate review to abuse of trial court discretion. When, as here, a one-judge trial court has the same date and no greater opportunity for inquiry than the three-judge appellate court, experience and logic furnish no reason why the latter should claim less discretion than the former. Judicial discretion to grant or deny defendants' motion was hedged by rules of law. Both at the trial and appellate levels, the decision involves the application of controlling law to fixed facts. As we shall explain, controlling law requires denial of defendants' motion. We apply the controlling law to these facts, untrammeled by the usual limitations observed in appellate review of discretionary action.
A prime factor in forum non conveniens decisions is whether the plaintiff has a choice of forums; as a general rule, the court will not decline jurisdiction if the plaintiff has no suitable alternative. (Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at pp. 506–507, 67 S.Ct. 839, 91 L.Ed. 1055; Rest. (2d) Conflict of Laws, § 84; see cases cited, 21 Hast.L.J. 1245, 1246, fn. 5; 1 Pacific L.J. at p. 536, fn. 36.) Another basic consideration is the doctrine's ‘extremely limited application’ where the plaintiff is a California resident. (Thomson v. Continental Ins. Co., supra, 66 Cal.2d at p. 742, 59 Cal.Rptr. 101, 427 P.2d 765.) Beyond these, are a group of public and private interest factors. ‘In determining the applicability of the doctrine, the court must consider the public interest as well as the private interests of the litigants. The court must consider such factors as the ease of access of proof, the availability and cost of obtaining witnesses, the possibility of harassment of the defendant in litigating in an inconvenient forum, the enforceability of the judgment, the burden on the community in litigating matters not of local concern, and the desirability of litigating local matters in local courts.’ (Goodwine v. Superior Court, supra, 63 Cal.2d at p. 485, 47 Cal.Rptr. 201, 204, 407 P.2d 1, 4; see also, Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at pp. 508–509, 67 S.Ct. 839, 91 L.Ed. 1055.)
A desire for positive guidance has led various analysts to dismember these public and private interest factors into fragmented groups of four, 13 or 25 separate elements. (See 1969 Report, California Judicial Council, pp. 93–94; Great Northern Ry. Co. v. Superior Court, 12 Cal.App.3d 105, 112–115, 90 Cal.Rptr. 461.) Forum non conveniens is a question for judicial discretion Trammeled by a proliferation of molecular directions, discretion loses its essential quality. ‘Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of [the forum non conveniens] remedy.’ (Gulf Oil corp. v. Gilbert, supra, 330 U.S. at p. 508, 67 S.Ct. at p. 843.)
In this case the fragmented criteria enumerated by some of the authorities are especially inappropriate, because not conceived in the context of a multistate class suit. Indispensable here, is an inquiry into the character of multistate class actions; their present juridical condition; the impact of forum non conveniens orders upon the parties, upon the judicial system and upon general socioeconomic interests.
A sworn declaration in the litigation record sets out statistics maintained by the Hawaiian Visitors Bureau. According to the bureau, over 1,100.000 mainland residents visited Hawaii in the year 1971, of whom 376,000 (more than one-third) were from California. Presumably, most of these visitors stayed in Hawaiian hotels, including those of the defendants. If the plaintiff succeeds in establishing a compensable wrong, the injured claimants could include all California visitors subject to discriminatory Hawaiian hotel charges within the period covered by the applicable statute of limitations. According to another statement in the record, the average individual claim against the hotels would range from $25 to $100.
This is a case in which the plaintiff sues on behalf of a large class of individual customers or consumers, who cannot be identified in advance whose individual claims are too small to justify the cost of individual lawsuits. Legal commentators call this a ‘consumer class action.'2 Such an action may take on a multistate character because the injured class reside in a number of states or because, as here, the defendants have their residence or business in states other than the forum.
In its intrastate manifestation, the California consumer class suit stands on the doctrine announced in Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732. There an individual customer sued the entrepreneur for excess charges imposed on himself and all other customers. Daar holds that one customer may sue on behalf of the class of customers, even though the individuals have individual damage claims rather than shares in a common fund; it is necessary only that there be (1) an ascertainable class and (2) a well-defined community of interest. (67 Cal.2d at p. 704, 63 Cal.Rptr. 724, 433 P.2d 732.) The single plaintiff was permitted to sue on behalf of an unknown number of unidentified customers, who constituted an ascertainable class because they had been the defendant's customers within the period of the statute of limitations.
In recent years a series of federal Supreme Court decisions has created serious procedural and financial barriers to the maintenance of consumer class actions in the federal courts. Where federal jurisdiction depends upon diversity of citizenship, two decisions require that each class member's claim meet the $10,000 minimum for diversity actions. (Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319; Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511.) Most recently, on May 28, 1974, the court held that Federal Civil Procedure Rule 23 required the plaintiff to mail individual ‘opt-out’ notices to 2,250,000 identifiable members of the class and to pay for these notices as an ordinary cost of the lawsuit. (Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732.) Although the Eisen court ordered dismissal of the class suit, it left the door slightly ajar by offering the plaintiff an opportunity to redefine (i. e., reduce) his class. (Id. 417 U.S. at 179, 94 S.Ct. at 2153, 40 L.Ed.2d at p. 749, fn. 16.)
These federal Supreme Court decisions sharply reduce the choice of forums available to redress interstate consumer wrongs. They will exclude most multistate consumer class actions from federal courts and divert them into the courts of the various states. In the latter courts, these multistate actions will suffer a further depletion of forum choice. The availability of a state remedy will depend on at least four elements: one, the defendants' vulnerability to the in personam jurisdiction of the forum state; two, the forum state's policy toward class suits; three, the state court's difficulty in supervision nonresident class members; four, the state court's view of itself as a convenient forum. By the time a multistate class suit emerges from these successive filters, it is obliterated or its choice of forums eliminated or sharply confined.
The recently erected barriers to federal class actions were conceived in apparent disregard of jurisdictional obstacles to redress in the state courts. Jurisdictional hurdles, federal and state, have little moral or social relevance to consumers' need for redress against ‘mass' commercial wrongs. Whether the current legal impediments to multistate class actions are ‘good’ or ‘bad,’ whether interstate commercial wrongs should be the exclusive domain of government bureaus, are matters of opinion. Most legal commentators and many courts—including the California Supreme Court—have recognized that mass victims of commercial wrongs should have a remedy; that the law should not insulate commercial wrongdoers from judicial correction;3 that individual lawsuits by individual consumers are economically impractical; that the class action provides a needed and beneficial alternative.4
A forum non conveniens motion will not be granted unless a suitable alternative forum is open to the plaintiff; he must have a choice of effective forums. (Gulf Oil Co v. Gilbert, supra, 330 U.S. at pp. 506–507, 67 S.Ct. 839, 91 L.Ed. 1055; Rest. (2d) Conflict of Laws, § 84; see cases cited, 21 Hast.L.J. at p. 1246, fn. 5; 1 pacific L.J. at p. 536, fn. 36.) Defendants have the burden of justifying the forum non conveniens order. (Thomson v. Continental Ins. Co., supra, 66 Cal.2d at p. 746, 59 Cal.Rptr. 101, 427 P.2d 765; Hadler v. Western Greyhound Racing Circuit, supra, 34 Cal.App.3d at p. 6, 109 Cal.Rptr. 502.) Defendants offer the Hawaiian courts as an alternate forum, thus assuming the burden of convincing the California court that the Hawaiian forum is an effective one.
Defendants have failed to supply any assurance of an effective class remedy in Hawaii. Defendants refer to Rule 23 of the Hawaiian Rules of Civil Procedure. The text of the rule has not been supplied and law libraries in Northern California do not have it. We accept defendants' statement that it is modeled upon the Federal Rules of Civil Procedure (inferably federal Rule 23) and that it ‘provides all the same privileges and protections as in a federal class action.’
There is no reason to assume that the Hawaiian courts will not give the Hawaiian version of Rule 23(a) construction paralleling that of the federal courts in the Eisen litigation. No Hawaiian case law on the subject has been cited and we know of none. For all that is known here, the Hawaiian courts may insist that plaintiff attempt to embrace the entire class of mainland visitors during the period of limitations, possibly aggregating several million persons; would require plaintiff, pursuant to rule 23, to identify these visitors from the hotel records and mail individual notices to them; would, as a consequence, impose expenses on plaintiff of several hundred thousand dollars. That kind of insistence by the Hawaiian courts would effectually deprive the California claimants of redress.
In the California courts, the class would be confined to California residents, approximately one-third of the maximum available class. California has adopted the Consumers Legal Remedies Act (Civ.Code, §§ 1750–1784). When a California court entertains a suit under that act, it may dispense with personal notification of individual class members, if that course is unreasonably expensive, and order notice by publication. (Civ.Code, § 1781, subd. (d).) The act may not literally apply to the present action; nevertheless, which California courts hear class action not directly governed by the act, they may utilize its procedural provisions. (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 820, 94 Cal.Rptr. 796, 484 P.2d 964.) California law will thus provide the present plaintiff with a financially practical, hence more effective, remedy.
In passing upon defendants' motion, the trial court did not have before it (and this court does not have) any assurance that the individual small claims of the calss may be aggregated to meet the $5,000 jurisdictional minimum of the Circuit Court, which is Hawaii's court of general jurisdiction. (Revised Statutes, Hawaii, §§ 603–21.5, 604–5.) In California, if the essential elements of a class suit exist, the individual claims of the class members may be aggregated to permit an action in the superior court. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at pp. 698, 717, 63 Cal.Rptr. 724, 433 P.2d 732.) The California view differs markedly from that prevailing in the federal courts. (See Zahn v. International Paper Co., supra, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511.) Defendnats have offered no assurance that the Hawaiian courts will follow the California view in preference to the federal view and no assurance that the individual claims of the California class (ranging from $25 to $100) will be entertained in the Hawaiian courts of general jurisdiction.
In sum, defendnats have not met their burden of convincing the California court that a class action in the Hawaiian state courts is an effective alternative. A stay, rather than dismissal, might be appropriate to test the availability of the Hawaiian courts. Other considerations demand retention of this lawsuit in California and outright denial of defendants' forum non conveniens motion.
The present plaintiff represents a class of California consumers who, to all appearances, constitute one-third of all mainland visitors who might claim compensation. The other two-thirds are scattered among 48 separate states. The considerable number of potential California plaintiffs and their high ratio relative to other visitors strongly evoke the policy which opens the doors of the California courts to redress the grievances of California residents ‘except in unusual circumstances.’ (Thomson v. Continental Ins. Co., supra, 66 Cal.2d at p. 745, 59 Cal.Rptr. 101, 427 P.2d 765.) We inquire whether the case exhibits unusual circumstances.
A defendant's protection against multiple lawsuits is a significant and appealing factor. Defendants point out that victory or defeat in California will not protect them from additional lawsuits in other states; that, in the absence of effective jurisdiction over nonresidents, a California judgment will not be res judicata of the latters' claims.
However appealing in other kinds of lawsuits, the multiplicity argument founders on the realities. As we view the contemporary predicament of the multistate consumer class action, attainment of res judicata in a single lawsuit is a desirable but hardly attainable consummation. One asks whether the law of the land provides any court at all with complete jurisdiction. Through Eisen and similar decisions, the federal courts have withdrawn behind the bascule of Rule 23. State courts, however open their gates, face constitutional hindrances and practical difficulties in obtaining jurisdiction of all possible parties.5 Eisen and its companion decisions may have deprived consumer class defendants of meaningful protection against piecemeal litigation. In the face of the present defendants' real need for a unitary adjudication, there is little likelihood that any state court, however sweeping its aims, can bind all potential claimants. California, indeed, may be able to impose its jurisdiction on more claimants than any other state. Thus, in balancing the parties' private interests, defendants' genuine vulnerability to multiple actions is not a substantial factor.
Defendants point out that many Hawaiian hotels are operated by corporations which are amenable to Hawaiian but not California process. If this is a fact, it is a disadvantage which plaintiff appears willing to shoulder. Defendants have not described what disadvantage they will suffer by the absence of other potential defendants.
Aside from the expense of personal notification to all claimants under the Hawaiian version of Rule 23, the expense and convenience factors balance out in favor of the Hawaiian defendants. Plaintiff may conduct the suit with little need for physical participation by other members of the class. Defendants' executive officers, accounting records and guest registers reside beyond reach of California subpoenas. Wherever the case is heard, pretrial discovery in Hawaii through depositions, interrogatories and inspection is probable. Plaintiff's discovery expenses will be relatively unaffected by suit in either forum. Defendants, on the other hand, would be called upon to transport their witnesses and records to California. Even when minimized by depositions and photocopying, the cost of a defense will be heavier in California than in Hawaii.
A suggested factor is the burden imposed on California claimants by the expense of pursuing their individual small claims in the Hawaiian courts. The factor does not militate in plaintiff's favor. If recovery is established, an Hawaiian court may supervise notification of California claimants; may receive and process their claims with hardly more cost and effort than a California court. A San Diego resident could present his claim as easily in Honolulu as in Sacramento.
The expense and convenience factors do not bulk large here. They involve little more than a plea for diminishing one side's burdens and augmenting the other's. These factors fall short of the ‘unusual circumstances' needed to outweigh the California residents' claim to redress in the California courts.
In the balancing of public as distinguished from private interest, the relative administrative and legal problems of the courts must be considered. (Koster v. Lumbermens Mutual Cas. Co., supra, 330 U.S. at p. 524, 67 S.Ct. 828, 91 L.Ed. 1067; Thomson v. Continental Ins. Co., supra; 66 Cal.2d at p. 744, 59 Cal.Rptr. 101, 427 P.2d 765.) The Koster decision applies the forum non conveniens doctrine to a representative suit, although not a consumer class action. The suit was a derivative one, filed in a federal district court on behalf of an interstate class consisting of members and policyholders of a mutual insurance company. In sustaining the trial court's rejection of jurisdiction, the majority opinion of Justice Jackson described several considerations bearing on forum conveniens in class actions: ‘To entertain such an action places the forum in a position of responsibility toward the whole class which the plaintiff assumes to represent. To prevent collusive settlements and abuses, the Court must approve dismissal or compromise and often must give notice to the other potential plaintiffs . . . who have a right to be heard on the propriety of settlement. [Citation.] It also takes on the troublesome business of fixing allowances to counsel and accountants . . .. Thus, such a litigation brings to the court more than an ordinary task of adjudication; it brings a task of administration; and what forum is appropriate for such a task may require consideration of its relation to the whole group . . . whom plaintiff volunteers to represent as well as to the nominal plaintiff himself.’ (330 U.S. at pp. 525–526, 67 S.Ct. at p. 832.)
The administrative difficulties described by Justice Jackson are diminished where, as here, the class of plaintiffs is limited to residents of the forum state. The California class is sizeable, representing (according to 1971 statistics) approximately one-third of all potential claimants. Although the individual claims are small, a large aggregate claim awaits those claimants who choose to participate. The California courts are in a position to assure responsible relationships between the individual plaintiff and the class she seeks to represent. The California courts can assure effective class notice of settlement proposals, distributive sharing and allowances of litigation expenses. Any fund recovered will be administered by the California courts for a class entirely within the state. With a possible exception, the defendants are amenable to the process of the California courts, whose judgment will be entitled to full faith and credit in the courts of other states.
Defendants contend that a decision invalidating their pricing practices will have a regulatory impact on an important Hawaiian business activity, thus that Hawaii has a greater interest than California in the outcome of the lawsuit. The argument parallels another—that the conduct of Hawaiian hotels is regulated by Hawaiian law which should be declared and expounded by the courts of that state.
The complaint is drawn in several counts, framed on theories of a common law wrong, violation of an innkeepers' statute of Hawaii6 and unfair and deceptive business practices prohibited by California law. What ‘choice of law’ problems will arise in the substantive unraveling of the litigation is not immediate concern. As general rule the exposition of common law and statutory doctrine affecting economic activity in another state is best left to the courts of that state. (Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at p. 509, 76 S.Ct. 828, 91 L.Ed. 1067; Goodwine v. Superior Court, supra, 63 Cal.2d at p. 485, 47 Cal.Rptr. 201, 407 P.2d 1.) On the other hand, defendants have failed to offer the Hawaiian courts as an effective alternate forum. Defendants' hotel business in Hawaii is supported by the solicitation of patronage in California. By engaging in economic activity in this state defendants (with a possible exception to be discussed later) have acquiesced in the California courts' in personam jurisdiction and submitted to the California courts' interest in providing a forum for California residents. (Buckeye Boiler Co. v. Superior Court, supra, 71 Cal.2d at pp. 899–900, 80 Cal.Rptr. 113, 458 P.2d 57.) If Hawaiian law is to govern the lawsuit, defendants have not demonstrated that California courts will have difficulty in applying it. (Thomson v. Continental Ins. Co., supra, 66 Cal.2d at p. 745, 59 Cal.Rptr. 101, 427 P.2d 765.) The possibility of substantive conflict with the Hawaiian courts is minimized by the possibility that the latter may not get past the procedural barriers posed by Rule 23. The California courts' interest in the redress of California residents outweighs any reluctance to formulate rules of conduct affecting business activities in Hawaii.
In summary, defendants have failed to point to the Hawaiian courts as an effective forum for redressing the claims of the California class. California's interest in opening its courts to residents seeking redress is intensified when, as appears likely, the California court is the only one which is practicably accessible. (Buckeye Boiler Co. v. Superior Court, supra, 71 Cal.2d at p. 899, 59 Cal.Rptr. 101, 427 P.2d 765.) Defendants have presented a number of factors gravitating in favor of its forum non conveniens plea, but these fall short of the ‘unusual circumstances' which justify closing the California court to the resident class of claimants. Consequently, the trial court erred in granting the motion.
The complaint named Waikiki Hotels-Seven as a defendant which owns a group of Hawaiian hotels, including the Waikiki Surf in Honolulu. Hotel Operating Co. of Hawaii, Ltd., appeared specially and moved to quash service of summons on the ground that it was not amenable to the jurisdiction of the California courts. The trial court granted the motion to quash and plaintiff charges error.
Through an affidavit of one of its officials, Hotel Operating Co. declared that there was no entity known as Waikiki Hotels-Seven; that it had an ‘interest’ in three named hotels, one of which was the Waikiki Surf; that none of these hotels had been incorporated in California; that no hotel ‘owned’ by it had solicited business or advertised its properties in California since January 2, 1969; that no hotel ‘owned’ by it possessed any property in California; that it does not act in any ‘special relationship’ in California.
In opposition to the motion to quash, plaintiff Marybelle Archibald filed a declaration alleging that in August 1972 she had made reservations at several Hawaiian hotels (including the Waikiki Surf) at the Sacramento office of American Express Company; that she had stayed at the Waikiki Surf Hotel on August 17, 1972. She declared that American Express Company had advised her that a room deposit of one full night's lodging was necessary; that American Express Company received a commission of ten percent of the total bill for each hotel; that if she did not use the reservation, she would be liable to American Express of the full deposit, including their ten percent.
Also on file is an affidavit by an official of American Express Reservations, Inc.— Space Bank, a wholly owned subsidiary of American Express Company. The affidavit states that American Express Reservations—Space Bank does business throughout the world representing hotels in the sale and marketing of computerized reservations; that all arrangements between American Express and the defendant hotels were made in Hawaii and all contracts were executed in Hawaii.
A California Court may exercise in personam jurisdiction consistent with constitutional principles. (See Code Civ.Proc., § 410.10.) A foreign corporation may not be required to defend itself in a state court unless the ‘quality and nature’ of its activity in relation to the particular cause of action makes it fair to do so; its activity must consist of an act done or transaction consummated in the forum state by which it purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. (Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Buckeye Boiler Co. v. Superior Court, supra, 71 Cal.2d at p. 898, 80 Cal.Rptr. 113, 458 P.2d 57.)
Plaintiff argues that the Waikiki Surf Hotel solicits business in California through American Express, its ‘paid agent.’ Plaintiff relies on McGee v. International Life Ins. Co., supra, which sustained California's assertion of jurisdiction over a Texas insurance company, based upon the company's single act of mailing to its California customer the insurance certificate upon which suit had been brought.
The ‘quality and nature’ of the insurance company's activity in McGee made it fair, in the due process sense, to require the company to defend itself in California in a suit on the insurance it had placed in force in California. Here, in contrast, plaintiff would utilize her single contact with the Hawaiian corporation to subject it to suit on behalf of herself and many others. Although this case and McGee both involve a single contact, the analogy fails for other reasons.
In general, the affidavits portray the American Express reservations service as an independent travel agency. Such an agency places reservations with practically any hotel or transportation firm throughout the world; the latter, in turn, usually accept reservations and deposits from any established travel agency on a nonexclusive basis. In effect, plaintiff seeks a holding that a hotel or transportation firm subjects itself to lawsuits in any and all jurisdictions in which an independent travel agency sells its accommodations. Established decisional law calls for a contrary holding. “Although a foreign corporation may have sufficient contacts with a state to justify an assumption of jurisdiction over it to enforce causes of action having no relation to its activities in that state, . . . more contacts are required for the assumption of such extensive jurisdiction than sales and sales promotion within the state by independent nonexclusive sales representatives.” (Vibration Isolation Products, Inc. v. American Nat. Rubber Co., 23 Cal.App.3d 480, 483–484, 100 Cal.Rptr. 269, 271, and cases cited).
An analogy occurs in Kenny v. Alaska Airlines, S.D.Cal., 132 F.Supp. 838. There a federal court held that the defendant airline was not ‘doing business' in California by selling tickets through ticket agencies or connecting carriers. The court suggested that subjection to jurisdiction through ticket sales by local carriers or independent contractors ‘would present a policy problem of such magnitude that we believe the California courts would hold that such ticket sale activities did not constitute doing business.’ (132 F.Supp. at p. 852.) In Miller v. Surf Properties, 4 N.Y.2d 475, 176 N.Y.S.2d 318, 151 N.E.2d 874, the New York Court of Appeals held that the activities of an independent New York travel agency, which solicited business and received reservations for many hotels, including a Florida hotel, did not make the Florida hotel amenable to New York process.
Nevertheless, we are not ready to sustain the order quashing service of summons. The affidavits supporting the motion are unsatisfactory. The affidavit of Hotel Operating Co. of Hawaii Ltd. states that the corporation has an interest in three hotels (including the Waikiki Surf), permitting the inference that it has less than full ownership; declares that no hotel owned by it has solicited business or advertised ‘its properties' in California in recent years, a statement which (particularly in juxtaposition to the preceding averments) opens the possibility that some hotel in which it has an interest engages in California activity or advertises something other than than ‘properties.’ It concludes with a denial of ‘special relationships,’ a vague, conclusionary statement. The affidavit of the American Express official reveals some sort of contract between American Express and the Hawaiian hotels, opening the possibility of some arrangement other than nonexclusive sales representation.
Ambiguous affidavits like these form an inacceptable basis for judicial decisions. We shall set aside the order quashing service and direct the trial court to reconsider the motion, giving both sides the opportunity for additional and more satisfactory affidavits which will clearly lodge the case on one side or the other of the governing rules of law.
The order granting defendants' forum non conveniens motion is reversed with a direction to deny the motion. The order quashing service of summons on Waikiki Hotels-Seven is reversed with a direction to reconsider the motion on such additional affidavits as the parties may present.
1. Gulf Oil, supra, 330 U.S. at pp. 508 and 512, 67 S.Ct. 839, 91 L.Ed. 1055, and Koster, supra, 330 U.S. at page 528, 67 S.Ct. 828, 91 L.Ed. 1067, make references to the trial court's discretion but not in the context of a comparison between trial and appellate functions. Each of these decisions represents a full-fledged analysis by the reviewing court and a plenary exercise of that court's discretion. Neither limits itself to the narrow inquiry whether the trial court's discretion ‘exceeded the bounds of reason.’ The authoritative California cases (Price, supra, and Leet, supra) speak of judicial discretion generally, without revealing any preference for the trial court. Goodwine v. Superior Court, supra, 63 Cal.2d at page 485, 47 Cal.Rptr. 201, 407 P.2d 1, declares that the trial court must in the first instance consider the relevant factors.
2. Starrs, The Consumer Class Action, 49 B.U.L.Rev. 211, 49 B.U.L.Rev. 407; McCall, Consumer Protection and Class Actions, 25 Hast.L.J. 1351; Eckhardt, Consumer Class Actions, 45 Notre Dame Law. 663; Goldhammer, The Consumer Class Action in California, 46 L.A.Bar Bull. 235; Notes, 25 Hast.L.J. 1411; 18 U.C.L.A.L.Rev. 1002.
3. We generalize at this point. The facts of the present case are unproven and an actionable wrong by the present defendants not established.
4. In Vasquez v. Superior Court, 4 Cal.3d 800, 808, 94 Cal.Rptr. 796, 484 P.2d 964, the court refers to the ‘therapeutic effect’ of consumer class actions. In Daar v. Yellow Cab Co., supra, 67 Cal.2d at page 751, 63 Cal.Rptr. at page 738, 433 P.2d at page 746, the court states: ‘. . . absent a class suit, recovery by any of the individual [customers] is unlikely. The complaint alleges that there is a relatively small loss to each individual class member. In such a case separate actions would be economically unfeasible. . . . It is more likely that, absent a class suit, defendant will retain the benefits from its alleged wrongs. A procedure that would permit the allegedly injured parties to recover the amount of their overpayments is to be preferred over the foregoing alternative.’ (See also, 25 Hast.L.J. at pp. 1360–1378; 49 B.U.L.Rev. at pp. 417–419.)
5. Some of the jurisdictional difficulties are described in a note, Consumer Class Actions with a Multistate Class: A Problem of Jurisdiction, 25 Hast.L.J. 1411, 1423–1438. multiple actions is not a substantial factor.
6. The statute in question is section 507–12, Revised Statutes of Hawaii, which provides: ‘The keeper of every hotel shall post in a conspicuous place in the office or public room and in every bedroom of the hotel a printed copy of sections 507–6 to 507–12 and a statement of charge or rate of charges by the day, and for meals or items furnished and for lodging. No charge or sum shall be collected or received by any keeper for any service not actually rendered, or for any item not actually delivered or contracted for, or for any greater or other sum than he is entitled to by the general rules and regulations of the hotel. For any violation of this or any provision herein contained, the offender shall forfeit to the injured party three times the amount of the sum charged in excess of what he is entitled to.’
FRIEDMAN, Acting Presiding Justice.
RICHARDSON, P.J., and PUGLIA, J., concur.