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Court of Appeal, Second District, Division 5, California.

Nancy Louise REHM, Individually and as Administratrix, etc., et al., Plaintiffs and Appellants, v. AERO ENGINES, INC., Defendant and Respondent.

Civ. B003800.

Decided: February 13, 1985

Speiser, Krause & Madole and Joseph T. Cook and Graham Kelly, Jr., Los Angeles, for plaintiffs and appellants. Kern & Wooley and Ralph S. LaMontagne, Jr., Los Angeles, for defendant and respondent.

The question presented on this appeal is whether the trial court abused its discretion in granting defendant's motion to dismiss based upon forum non conveniens.   We conclude that it did not.


This case arose from the crash of a single engine aircraft near Whitehorse, Canada, on September 10, 1980.   As a result of the crash, the pilot and two passengers were killed and a third injured.   Plaintiffs in this action were the surviving passenger and the survivors of the deceased passengers.

Defendant Aero Engines, Inc., (Aero) is in the business of rebuilding aircraft engines.   It rebuilt the engine of the ill-fated aircraft approximately March 1979, 18 months before the accident.

The Canadian Ministry of Transport investigated the accident.   In a portion of its report, it concluded that the engine in the aircraft failed and the failure was primarily caused by failure of a piston pin.   Plaintiffs contend that the engine failure was result of a defect in the engine at the time defendant completed its rebuilding and returned the engine to commerce.


Plaintiffs commenced this action in the Superior Court of Los Angeles County on September 8, 1981.   A similar action was commenced in the Supreme Court of the Yukon Territories.   Although the exact date does not appear in the record, the Canadian action apparently was commenced prior to November 4, 1981.   Plaintiffs in both actions are residents of the States of Missouri and Texas.   The defendants named in the complaint are Aero, a California corporation, Alkan Air Ltd. (Alkan), a Canadian corporation, that operated the aircraft, Kimba Air Services Ltd. (Kimba), a Canadian corporation that owned the aircraft, and Pratt & Whitney, Inc., a Delaware corporation that manufactured the engine.   Alkan is a small charter service with no international contacts.   Kimba also is a local Canadian company with no international contacts.

On November 6, 1981, defendant Aero appeared specifically by a motion to dismiss based on forum non conveniens.   Shortly thereafter, the two Canadian defendants were dismissed without prejudice.   Pratt & Whitney apparently was never served.   The motion to dismiss was granted December 29, 1981, on condition that Aero make a general appearance in Canada and that Aero waive statute of limitations defenses it might have in Canada.   Aero complied with these conditions, and the matter was dismissed on March 22, 1983.   From this dismissal plaintiffs appeal.


 The determination of whether to apply the doctrine of forum non conveniens rests within the sound discretion of the trial court, to be exercised on a case-by-case basis.  (National Life of Florida Corp. v. Superior Court (1971) 21 Cal.App.3d 281, 288, 98 Cal.Rptr. 435;  Great Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105, 113–115, 90 Cal.Rptr. 461.)   The primary factors to be considered by the court in exercising its discretion, are as follows:

1. The amenability of the defendant to personal jurisdiction in the alternative forum.

2. The relative convenience to the parties and witnesses of trial in the alternative forum.

3. The differences in conflict of law rules applicable in this state and in the alternative forum.

4. The principal place of business of the defendant.

5. Whether the situation, transaction or events out of which the action arose exists, occurred in, or had a substantial relationship to this state.

6. Whether any party would be substantially disadvantaged in having to try the action (a) in this state or (b) in the forum in which the moving party asserts it ought to be tried.

7. Whether any judgment entered in the action would be enforceable by process issued or other enforcement proceedings undertaken in this state.

8. Whether witnesses would be inconvenienced if the action were prosecuted (a) in this state or (b) in the forum in which the moving party asserts it ought to be prosecuted.

9. The relative expense to the parties of maintaining the action (a) in this state and (b) in the state in which the moving party asserts the action ought to be prosecuted.

10. Whether a view of premises by the trier of fact will or might be necessary or helpful in deciding the case.

11. Whether prosecution of the action will or may place a burden on the courts of this state which is unfair, inequitable or disproportionate in view of the relationship of the parties or of the cause of action to this state.

12. Whether the parties participating in the action have a relationship to this state which imposes upon them an obligation to participate in judicial proceedings in the courts of this state.

13. The interest, if any, of this state in providing a forum for some or all of the parties to the action.

14. The interest, if any, of this state in regulating the situation or conduct involved.

15. The avoidance of multiplicity of actions and inconsistent adjudications.

16. The relative ease of access to sources of proof.

17. The availability of compulsory process for attendance of witnesses.

18. The relative advantages and obstacles to a fair trial.

19. The public interest in the case.

20. Whether administrative difficulties and other inconveniences from crowded calendars and congested courts are more probable in the jurisdiction chosen by plaintiff.

21. Whether imposition of jury duty is imposed upon a community having no relation to the litigation.

22. The injustice to, and burden on, local courts and taxpayers.

23. The difficulties and inconvenience to defendant, to the court, and to jurors hearing the case, attending presentation of testimony by depositions.

24. Availability of the forum claimed to be more appropriate.

25. Other relevant considerations.

(Jagger v. Superior Court (1979) 96 Cal.App.3d 579, 585–586, 158 Cal.Rptr. 163;  Henderson v. Superior Court (1978) 77 Cal.App.3d 583, 595–597, 142 Cal.Rptr. 478;  Great Northern Ry. Co. v. Superior Court, supra, 12 Cal.App.3d at 112–115, 90 Cal.Rptr. 461.)

 Without belaboring this opinion with an overly detailed discussion of each individual point, it is evident that a great many factors favor applying the doctrine to shift the litigation to the Canadian forum.   The accident occurred in Canada's Yukon Terrorities.   The control tower personnel and three witnesses to the crash or the crash scene are residents of Canada.   The immediate medical treatment of the survivor and medical examination of the deceased passengers all occurred there.   The crash was investigated by the Royal Canadian Mounted Police and the Canadian Ministry of Transport.   The estate of the pilot is pending in Canada, and is not subject to California jurisdiction.   In addition, all the records and personnel of the corporations that owned, maintained, and operated the aircraft are located in Canada.

Most important of all, it appears that the owner and operator of the aircraft, Kimba and Alkan, are not amenable to California's jurisdiction.   Both appear to be small local Yukon based operations with no contacts in California.   The absence of these parties is particularly important because plaintiffs also allege that the engine failure was due, in whole or in part, to negligent maintenance by the owner or operator of the aircraft.   Plaintiffs also allege that Alkan negligently operated the aircraft with excessive weight and that the pilot negligently operated it after the engine failure.   Aero, for its part, alleges that it performed its overhaul in strict accordance with the manuals and instructions of the manufacturer, using parts manufactured or approved by the manufacturer;  that it had no dealings with either Alkan or Kimba, that 18 months and 600 flight hours had elapsed since it last had possession or control of the engine.   Thus, in the absence of Alkan and Kimba, California courts could not litigate conclusively the cause of the crash.

On the other hand, there are several factors that favor retaining the action in California.   First, California is Aero's principal place of business.   Secondly, it is the forum choosen by the plaintiffs, this factor is entitled to great weight.  (Judicial Council comment to Code Civ.Proc., § 410.30;  Brown v. Clorox Co. (1976) 56 Cal.App.3d 306, 311, 128 Cal.Rptr. 385.)   In addition, plaintiffs observed that if the trial were held in Canada the relevant records and employees of Aero would have to be transported to Canada at substantial costs and inconvenience.   Moreover, plaintiffs also cite some additional litigation expense and difficulty confronting them because the Canadian law regarding discovery is more restrictive than American law.   Plaintiffs also cite California's interest in insuring that defective products are not distributed by California corporations.1

The most substantial argument raised by plaintiffs is that equitable considerations compel the denial of dismissal because the Canadian law does not follow strict liability for defective products.   Indeed, plaintiffs contend that this consideration virtually mandates that the case be retained in California in light of Holmes v. Syntex Laboratories, Inc. (1984) 156 Cal.App.3d 372, 202 Cal.Rptr. 773.

Defendant, on the other hand, contends that Holmes was incorrectly decided in light of the holding of the United States Supreme Court in Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419.   Aero urges that we not follow it.  (Letter of October 16, 1984.)

In Holmes British citizens sought to sue, in Santa Clara County Superior Court, the domestic parent of a British subsidiary corporation, which subsidiary was the source of the drug Norinyl to the plaintiffs.   The trial court granted the motion to dismiss because the distribution of the drug and the great bulk of the liability evidence all occurred in Great Britain, and because keeping the action in Santa Clara would overburden the Santa Clara courts and its taxpayers, which had recently experienced a serious budget crisis.   The trial court also observed that the alternative forum was not an unreasonable one like “Chile with its military junta.”   The court continued, “I don't see why we should suddenly come over and say:  Well, American courts give you a brighter day than an English court.”

On appeal the trial court was found to have abused its discretion primarily because the British courts were “not a suitable alternative.”  (156 Cal.App.3d at 383, 202 Cal.Rptr. 773.)   This is because the British law does not recognize the doctrine of strict liability for products liability.   Rather, Great Britain follows only negligence liability.  (156 Cal.App.3d at 384, 202 Cal.Rptr. 773.)

Although we are tempted to explore some of the interesting questions raised by Holmes, and its diversions from Piper, we are not required to do so to resolve the case at bar.   There are many factors that distinguish this case from Holmes.   First, the comparative disadvantage of the liability law of Canada in this case is not substantial.   If plaintiffs can show that the aircraft engine and the piston pin were defective at the time the engine left Aero's hands, they would have the benefit of strict liability under California law, and of res ipsa loquitur under Canadian law.  (See Waddams, Products Liability (2d ed. 1980) p. 257;  McMorran v. Dominion Stores, Ltd. (1977) 14 O.R.2d 559, 74 D.L.R.3d 186 (H.C.);  Phillips v. Ford Motor Company (1970) 2 O.R. 714, 739, 12 D.L.R.3d 28, 53, rev'd on other grounds (1971) 2 O.R. 637, 18 D.L.R.3d 614 (Ct.App.).)   This difference seems to be of primarily academic significance in this case.   The report of Ministry of Transport indicates that at the time of its inspection, the piston pin was a 13-ounce pin rather than a 22-ounce pin recommended by the engine manufacturer.   If plaintiffs can prove that the engine left Aero's hands with the wrong pin, the comparative disadvantage of the res ipsa loquitur doctrine of Canadian law does not appear to be great.

In Holmes, by contrast, the comparative burden was that of a purchaser of a prescription drug who sought to recover on a negligence theory against the manufacturer contrasted with that of one who sought to recover on a strict liability test.   Such a comparative difference is substantial.

Moreover, applying the doctrine of strict liability to a prescription drug case, such as Holmes, would relieve the plaintiffs of litigating extraneous issues.   This is entirely appropriate because the manufacturer of a drug is in complete control of its formulation and testing and of the manufacturing processes.   The product normally remains unchanged until it is consumed by the ultimate purchaser.   In the case at bar, however, there appears to be substantial dispute about whether the case is indeed a products liability case.   After Aero completed its work, the engine passed through the hands of least one intermediary, Progressive Air Services, before ultimately being put into service in the Yukon.   It accumulated 600 flight hours before the accident.   Thus, the focus of this litigation appears to be whether engine failure resulted from the fault of Aero in its rebuilding, Alkan or Kimba in its maintenance, or possibly with an intermediary or other person.   In addition, plaintiffs allege the aircraft was negligently flown by the pilot after the engine failure.

 The foregoing discussion illustrates another factor of great importance that distinguishes this case from Holmes.   If the action was tried in Los Angeles, defendant Aero would be severely limited in its ability to present its case that much or all the fault lay with the Canadian owner or operator of the aircraft.   Moreover, if it prevailed on any such theory, it would not be able to recover a judgment for full or partial indemnification from them.   It would have to commence its own separate action in Canada in order to receive the benefit of any equitable indemnification.2  One of the purposes of the doctrine of forum non conveniens is to prevent unnecessary multiplicity of actions.  (Great Northern Ry. Co. v. Superior Court, supra, 12 Cal.App.3d 105, 114, 90 Cal.Rptr. 461.)   This purpose holds whether the actions would be brought by plaintiffs or by defendant.   The defendant, like plaintiffs, is also entitled to have fairness weighed in the court's consideration.   This result is in accord with Hemmelgarn v. Boeing Co. (1980) 106 Cal.App.3d 576, 588–590, 165 Cal.Rptr. 190.  Hemmelgarn also arose from a Canadian air crash.   It also was an action brought by non-California plaintiffs against a corporate defendant resident of California.   A forum non conveniens dismissal was affirmed in part because California's policy of promoting of fair and just apportionment of damages in multiparty tort litigation would be frustrated because some important Canadian defendants were not amenable to California's jurisdiction.

In summary, it appears that substantial factors appear in the record to support the exercise of discretion of the trial court.   No abuse of discretion has been shown.

The judgment is affirmed.



1.   This case does not engage California's interest in protecting its citizens from wrongful injury since none of the plaintiffs is a resident of this state.

2.   Indeed, defendant claims it is doubtful whether a separate action for indemnification would even be viable under Canadian law.

CHERNOW, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

HASTINGS, Acting P.J., and EAGLESON, J., concur.

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