GLACIER PARK COMPANY v. McCOMIC

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Court of Appeal, Fourth District, Division 1, California.

GLACIER PARK COMPANY, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent; R.B. McCOMIC et al., Real Parties in Interest.

D004693.

Decided: December 19, 1986

Latham & Watkins, Lance B. Wickman and Robert P. Dahlquist, San Diego, Perkins, Coie, Stone, Olsen & Williams, Harry H. Schneider, Jr. and Paul B. Goodrich, Seattle, Wash., for petitioner. No appearance for respondent. Monaghan & Metz, Brian D. Monaghan, San Diego, and James A. Roberts, Oakland, Lance C. Schaeffer, San Diego, for real parties in interest.

Glacier Park Company (Glacier) petitions for a writ of mandate to compel the trial court to stay the San Diego Superior Court action filed by real parties/plaintiffs McComic, R.B. McComic, Inc., and Copson.   Glacier seeks a stay on the grounds of forum non conveniens and comity in favor of a similar action pending in the trial court of King County, Washington.   Glacier also asks the injunction issued by the court enjoining Glacier from further pursuing the Washington cause be vacated.

The San Diego court denied a stay because the San Diego plaintiffs allege torts arising out of claimed breaches of the covenant of good faith and fair dealing implicit in contract relationships (see, e.g., Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 206 Cal.Rptr. 354, 686 P.2d 1158), and seek punitive damages.   Washington law allegedly does not recognize these torts or permit punitive damages.

For reasons we shall state, we have concluded the trial court should have stayed the California action in favor of the Washington state court case and erred in issuing the injunction.

 The Parties

The parties to these proceedings may be briefly described as follows:  Burlington Northern, Inc. (Burlington) is a Delaware corporation with its corporate offices and principal place of business in Seattle, Washington.   Glacier is a wholly-owned subsidiary of Burlington.   Glacier develops and manages real property owned by it and other Burlington affiliates.   Glacier is a plaintiff in the Washington action, and both Glacier and Burlington have been served as defendants in the San Diego action.   The San Diego Superior Court, however, granted Burlington's motion to quash for lack of in personam jurisdiction;  that matter is on appeal in a companion case here, D003037.

The “McComic parties”—plaintiffs in San Diego, defendants in Washington—are R. Barry McComic, Chairman and Chief Executive Officer of the corporation R.B. McComic, Inc.;   the corporation;  and McComic's wife.   The corporation agreed to provide real estate consulting services to Glacier by written contract entitled “Consulting Agreement” signed by officials for Glacier Park and for R.B. McComic, Inc.

The entity Trans West Land, Inc. (TWL), sued as a defendant in both San Diego and Washington, is a Delaware corporation formed by written agreement between Glacier and McComic.   TWL was a potential joint venture partner with Glacier in development of certain real estate ventures.   McComic owns 50 percent of the stock of TWL and is also its chief executive officer and chairman.   Real parties here (the McComic parties, and Copson) contend TWL is essentially defunct and has never appeared in any action.

Gary Copson, a plaintiff in San Diego and a real party in interest here, is president of R.B. McComic, Inc. and its only stockholder other than McComic.

James D. McMenamin, defendant in San Diego, is a former chairman and chief executive officer of Glacier from September 1981 to June 30, 1983.

Steven L. Wood was sued as a defendant in the San Diego action, and, like Burlington, his motion to quash was granted in the trial court and that matter is involved in the companion appeal, D003037.   He is a Washington resident and a former officer of Glacier.

The two pending actions are not precise mirror images.   In San Diego, plaintiffs McComic, R.B. McComic, Inc. and Copson filed suit against Glacier, Burlington, McMenamin, Wood, and TWL alleging seven tort causes of action, plus one allegation of alter ego (claiming Glacier is Burlington's alter ego).   The complaint says pursuant to agreements for rendering real estate development consulting services to Glacier and Burlington, McComic and Copson between March 1982 and December 1983 provided over 10,000 hours of work enhancing the value and development potential of Burlington's properties, increasing their value by more than $30,000,000.   They were promised shares in the eventual development profits, to be attained through formation of joint development ventures.   However, Glacier and Burlington never intended to perform and repudiated their commitments.   They fraudulently deprived McComic and Copson of the benefit of the agreements, repudiated the agreements maliciously and for the purpose of cheating plaintiffs, and damaged plaintiffs both by depriving them of the promised opportunities to share in ultimate development profits, and also by having lured them away from other lucrative career opportunities.   The precise causes of action alleged are (1) conspiracy to defraud plaintiffs by intentional breach of joint venture agreements also amounting to breach of fiduciary duty, (2) promissory estoppel, with detrimental reliance, (3) joint venturer's breach of fiduciary duty, (4) breach of implied covenant of good faith and fair dealing, with malice, repudiation, and conscious disregard of plaintiffs' rights, (5) defamation (against Wood only), (6) intentional interference with economic advantage, (7) negligent interference, and (8) alter ego.

The Washington complaint was filed by Glacier against McComic, R.B. McComic, Inc., “Jane Doe McComic,” and TWL.   Thus, the parties are not identical;  missing from the Washington action are Burlington, McMenamin, Wood and Copson.   Glacier filed its complaint in the Superior Court of Washington for King County on May 9, 1984.   Captioned an action for declaratory judgment and damages, the complaint sought damages for alleged negligent performance by the McComic defendants of consulting services and advice in connection with the proposed development of properties as per the parties' Consulting Agreement, dated May 17, 1982, and entered into at Seattle, Washington.   This agreement stated its term would expire November 16, 1983, and thereafter would continue from month to month unless terminated on 30 days' notice.   The agreement expressly stated it would be governed by Washington law.   The complaint alleged McComic did not exercise reasonable care in performing services under this agreement.   Glacier sought damages resulting from such negligence, as well as a declaratory judgment Glacier was no longer obligated under the agreement or under separate joint venture agreements between the parties.

Glacier now argues its complaint was based on an evaluation it performed in the fall of 1983 considering whether to renew the Consulting Agreement, which review resulted in a written critique concluding McComic had no experience in mixed-use urban development regarding hotel and executive conference centers;  there had been no proper marketing analysis to establish needs, occupancy, rates, and like matters;  and no conference center consultants had been retained by the McComic organization.

 Procedural History of the Litigation

Glacier first filed two actions against the McComic parties in the state of Washington:  action number one in the United States District Court, Seattle, Washington;  and action number two in the Washington state court for King County, both filed on March 5, 1984, each seeking damages for negligence and declaratory relief.   Both complaints were served on McComic, his wife and his company on April 17, 1984.   In the federal action, Glacier sought an ex parte stay preventing McComic from filing any actions connected with these matters outside Washington;  the District Court denied a stay on April 19.   Next, McComic removed action number two, the state action, to the District Court in Seattle, on May 2, 1984;  whereupon Glacier dismissed that action.   Glacier then filed a third action in the Washington state court, identical to the dismissed action, only adding TWL as a defendant (allegedly with the intent of destroying diversity jurisdiction, although that fact has not been established).   In any event, that action was filed on May 8, 1984, with service effected on TWL on May 8, 1984, and is the Washington action presently pending.

McComic filed a “limited” notice of appearance in the Washington state court action on May 10, 1984.   Then, on June 4, 1984, he filed the San Diego action.   In that action, he served McMenamin on June 27, 1984;  Glacier on June 28, 1984;  Burlington on July 11, 1984.   The McComic parties (McComic and his corporation) were served as defendants in the Washington action on July 21, 1984.

On June 7, 1984, McComic removed Glacier's Washington state court action (action number three) to the Seattle Federal District Court and then moved for a stay in favor of California in both that action and in action number one still pending there.   Glacier, on July 6, 1984, removed McComic's San Diego state court action to the Federal District Court here, then moved to either stay it in favor of the Washington action or transfer it to the Federal District Court in Seattle.   On August 8, 1984, the San Diego Federal District Court remanded the McComic action to the state court, for the reason the removal was not proper.

In the Federal District Court in Seattle, McComic's stay motion was granted by Judge McGovern on September 19, 1984.   In his order, Judge McGovern said exceptional circumstances existed favoring California as the more appropriate forum.   His decision said the case lacked substantial federal issues and complete relief could only be obtained in the state court because three essential parties—Burlington Northern, McMenamin and Wood—were not before the federal court but had been served in the San Diego state court action.   Accordingly, he stayed the federal action.

Glacier sought review of Judge McGovern's order.   The Ninth Circuit, although denying writ review (because the appellate remedy was adequate) decided on appeal that although Judge McGovern did not err in finding exceptional circumstances, the presence of TWL as a party destroyed diversity jurisdiction, and therefore the Ninth Circuit remanded the action to the Washington state court.

Judge McGovern's order, it should be noted, did not compare two state forums, California and Washington;  rather, it said all essential parties could not be served in the federal action, and no substantial federal law issues were involved, making deference appropriate to the then pending state action, which was in San Diego.   When, however, the Ninth Circuit remanded the action to the King County state court, a duplication of state forums was created, a problem not before Judge McGovern when he ruled.

After the remand to Washington state court, the McComic defendants apparently agreed to the appointment of Judge Gerard M. Shellan as the assigned judge for all purposes in the lawsuit.   They stipulated to orders whereby he scheduled events in the case and set a trial date of March 9, 1987.   They also submitted to him for decision the question whether a stay should issue in favor of the California forum.   Judge Shellan on January 30, 1986, denied that stay.   He gave these reasons:  the two forums are equally convenient as to proximity of witnesses and availability of evidence;  Washington can, if necessary, apply California law, just as California can apply Washington law;  jurisdiction was first obtained in Washington (based on the earlier filing);  and the contacts with Washington are substantial, because during the more than 19 months when the real estate consulting services were rendered, a very substantial part of the hours billed related to properties owned by Glacier in Washington, about 40 percent of a total of a million dollars paid to McComic for services, most of which were performed outside of California.   Further, the “flavor” of the contracts is Washingtonian, because the parties made Washington law applicable in their consulting agreement.   Accordingly, Judge Shellan declined to stay the Washington action.

DISCUSSION

 The general principles governing a choice of forum decision are stated, for example, in Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 59 Cal.Rptr. 101, 427 P.2d 765, holding that a stay in deference to an out-of-state action is a discretionary matter for the trial court's resolution, not a matter of right.   Relevant considerations include discouraging multiple litigation designed to harass an adverse party;  avoiding unseemly conflicts with other courts;  deciding in which forum the parties' rights can best be determined;  and examining the relative stages to which the proceedings have advanced.   The Thomson court weighed all these relevant factors to reach a reasoned result.  (See also Farmland Irrigation Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215, 308 P.2d 732;  Tinney v. Tinney (1963) 211 Cal.App.2d 548, 553, 27 Cal.Rptr. 239.

Here, Glacier says the most important consideration, comity, requires deference to the Washington state court decision mandating trial there.   McComic, however, says the earlier decision of Judge McGovern in the Federal District Court in Seattle chose California as the more suitable forum.   Also, he argues, other federal court decisions in this matter have ruled similarly.1

1. Washington Law

Because the basis for the trial court's choice of forum here was its perception that Washington law would not afford complete relief to the McComic parties, we first examine the soundness of that premise.

It is not clear that Washington law will afford no cause of action for breach of the implied covenant.   Cited in support of that proposition is Thompson v. St. Regis Paper Co. (1984) 102 Wash.2d 219, 685 P.2d 1081.   That case, however, was a wrongful discharge employment case, holding there is no duty to discharge only for cause under an employment at will contract.   The decision does hold that discharges in violation of public policy are actionable.

Many jurisdictions have been slow to impose limitations on the power of an employer to hire and fire, so that a decision reluctant to do so, such as Thompson, supra, does not necessarily presage that the same court would refuse to permit tort remedies for contract breaches in all situations.   Particularly where the jurisdiction is willing, as is Washington, to provide redress for actions that are against public policy, it is probably also willing to entertain tort claims based on fraud allegations or on claims of deliberate contract repudiation, such as McComic alleges here.

It is clear, however, that punitive damages are normally unavailable in Washington.   Nevertheless, a Washington court would grant such damages if California law applied to the dispute.  (See Kammerer v. Western Gear Corp. (1981) 96 Wash.2d 416, 635 P.2d 708.

In arguing that we should emphasize the change of applicable law from California to Washington, to plaintiffs' detriment, McComic plaintiffs cite the decisions in Holmes v. Syntex Laboratories, Inc. (1984) 156 Cal.App.3d 372, 383, 202 Cal.Rptr. 773 and International Harvester Co. v. Superior Court (1979) 95 Cal.App.3d 652, 660, 157 Cal.Rptr. 324.   The decision in Holmes v. Syntex Laboratories, Inc. differs from this case, however, in important respects.   There, British citizens brought products liability actions against defendants for tort damages caused by an oral contraceptive;  the appellate court reversed a dismissal of the lawsuit on the ground of forum non conveniens.   The court held (1) the plaintiffs' choice of forum was entitled to substantial deference and (2) the available alternate forum in Great Britain was not “suitable” because British law was greatly less favorable to the plaintiffs than was California law, allowing no cause of action based on strict liability law and otherwise falling far short of the available relief under California law for damage caused by defective products.

The first, obvious difference between Holmes and this case is in the former there was no earlier decision of a British (or any) court holding Great Britain to be the suitable forum, hence the considerations of collateral estoppel and comity present here were absent in that case.  Holmes does not present the spectre we have here of the trial court's simply ignoring the effect of a full-blown considered decision on the issue by a foreign, but presumably competent, tribunal.

Second, as we have already noted, it is not established that Washington law is significantly less favorable to the plaintiffs here than California law, in light of the Washington court's commitment to apply California law if, under relevant principles of choice of law, California law should govern the matter.  (See Kammerer v. Western Gear Corp., supra, 96 Wash.2d 416, 635 P.2d 708.   Despite a strong local public policy against punitive damages, the Washington court was willing, in Kammerer, to grant such relief where California law governed the matter.   As for the cause of action for breach of the implied covenant of good faith and fair dealing, real parties have not convincingly demonstrated that the Washington courts would not recognize such a cause of action, either as a matter of local Washington law, or by applying California law based on choice of law principles.   As we stated, the decision in Thompson v. St. Regis Paper Co., supra, does not necessarily imply the absence in Washington law of an enforceable covenant for breach of good faith in a contract matter.   Further, Washington courts, like California courts, are committed to reasonable choice of law principles which call for deciding which law to apply by evaluating the the relevant competing states' interests in the matter.  (Compare, e.g., Barr v. Interbay Citizens Bank of Tampa, Fla. (1981) 96 Wash.2d 692, 649 P.2d 827 and Johnson v. Spider Staging Corporation (1976) 87 Wash.2d 577, 555 P.2d 997 with Hurtado v. Superior Court (1974) 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666 and Reich v. Purcell (1967) 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727.)   Thus, although, as we are sure all parties will admit, there is some possibility the plaintiffs will receive more favorable treatment in the California forum, nevertheless this case is a far cry from the situation in the Holmes case where the foreign forum would not recognize the parties' principal cause of action for defective product damages.

In the case of International Harvester Co. v. Superior Court, supra, the Court of Appeal affirmed a trial court decision refusing to stay or dismiss proceedings on a cross-complaint where the underlying accident happened in Kansas and had been settled, leaving at issue the relative liabilities of defendants Sears, Roebuck and International Harvester.   The Court of Appeal, after detailing many relevant factors to be considered on a request for a stay or dismissal for forum non conveniens, opted to retain the trial of the cross-complaint in California because (1) the showing in support of inconvenience of the California forum was deemed slight and (2) most important, the Court noted that under Kansas choice of law rules Kansas law would apply to the controversy (because in Kansas the concept of the situs of the injury controlled the choice of law) and unlike the California law of proportionate indemnity among concurrent tortfeasors (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 and progeny) Kansas had abrogated the rule of joint liability, determining the obligation of each concurrent tortfeasor separately in proportion to fault, so that it was thought “at least an open question whether under Kansas law Sears and Armstrong have any right of indemnity from International.”  (International Harvester Co. v. Superior Court, supra, 95 Cal.App.3d at p. 660, 157 Cal.Rptr. 324.)   Thus, as in the Holmes case, supra, the International Harvester court opted for a California trial because of the unavailability of any significant recovery for the plaintiff (or cross-complainant) in the foreign forum.

Further, like the Holmes decision, the International Harvester case differs from the situation here in that there was no earlier decision resolving the choice of forum issue.

2. Comity

 In our view, the most important factor here weighing against the trial court's decision is that it ignores a reasoned decision of a competent trial court of another state.   That judicial effort ought not to be lightly disregarded.   Like the California rule that the first of two California tribunals to obtain jurisdiction retains it to the exclusion of other forums (see Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 81–82, 293 P.2d 18), similarly the comity doctrine counsels deference to the judicial decisions of other states or jurisdictions, in the interests of judicial economy and avoidance of unseemly conflict between co-equal courts.   Thus, it has been said:

“The rule which forbids a later action in the same state between the same parties involving the same subject matter rests upon principles of wisdom and justice, to prevent vexation, oppression and harassment, to prevent unnecessary litigation, to prevent a multiplicity of suits,—in short, to prevent two actions between the same parties involving the same subject matter from proceeding independently of each other.   We think there is no distinction in reason or difference in principle between a case where a later action between the same parties involving the same subject matter is commenced in the same state and a case where a later action between the same parties involving the same subject matter is commenced in another state.   If proceedings should be stayed in the first case mentioned, it is in order to avoid a multiplicity of suits and prevent vexatious litigation, conflicting judgments, confusion and unseemly controversy between litigants and courts.   Any and all of this may occur where the later action is commenced in another state, as well as where it is commenced in the same state.  (14 Am.Jur. § 243, p. 436.)”  (Simmons v. Superior Court (1950) 96 Cal.App.2d 119, 124–125, 214 P.2d 844.)

Here, the alleged derelictions are all closely related to breaches of contract.   Those contracts expressly make Washington law relevant.   Further, a Washington trial judge has fully considered the issue of relative suitability of the California and Washington forums, and has elected to let the matter proceed there.   Thus, the considerations of discouraging multiple litigation and of avoiding conflicts between courts both militate in favor of staying the California action, as does the general principle of judicial economy which is violated by repeated hearings on the identical issue—here, the question which state provides the better forum.   The relative stages to which the proceedings have advanced are roughly equivalent;  neither matter has yet come to trial, and whatever discovery has been engaged in to date in either case is presumably useful in both lawsuits.

Further, McComic's reliance on the decision of Judge McGovern in the Seattle District Court litigation is unconvincing.   As we have stated, Judge McGovern did not compare the two state forums, but rather determined exceptional circumstances mandated a stay in favor of the then pending San Diego action.   When the Ninth Circuit remanded to the Washington state court (for lack of jurisdiction), the potential conflict of state forums surfaced.   McComic directly submitted that decision to the Washington state court judge, but then, rather than appealing the adverse decision, chose instead to proceed in California and seek a stay here.   That is blatant forum shopping.2

3. Choice of Law

Although the Consulting Agreement between Glacier and McComic's corporation specifies that Washington law shall govern the bargain, McComic has argued Washington law should not apply because (1) the agreement is allegedly unconscionable and (2) the choice of law bargain should not affect the tort causes of action.   The first allegation, of unconscionability, obviously cannot control the choice of forum issue, which must be decided in advance of development of the evidence.   The agreement is not unconscionable as a matter of law.

 As to the second argument, although we agree there is no requirement the contract provision choosing Washington law must be applied to the tort causes of action, nevertheless, given the close relationship of contract and tort principles in cases of this nature, the parties' choice of law is at least a relevant factor which may be weighed in the balance.   Further, we are here concerned with the choice of forum, not with choice of applicable law.   Nevertheless, as we have pointed out, in choice of forum cases a relevant factor is the availability at the forum of basic legal tenets underlying the plaintiff's cause of action.   In mixed contract and tort actions, as here, where although the parties' relationship began in contract it has terminated in charges of tortious conduct arising out of the contract, a still unanswered question is whether the law the parties have chosen to control the contract should also govern the tort allegations, or whether the latter should be subject to the law of the situs of the alleged torts or to some other law determined upon by a traditional choice of law analytical process.   No case we have found squarely resolves that issue.3  The point we make here is simply to emphasize that our determination the matter should be tried in Washington neither predetermines the choice of applicable law nor makes application of California law impossible.   As the Washington trial court judge noted, the courts of Washington are capable of performing both the choice of law analysis and the application of either state's law, as may appear correct after consideration.

4. Other Considerations

The procedural history which we summarized ante shows the presently pending Washington state court action was filed slightly before the San Diego action, but that the San Diego defendants, Glacier and Burlington, were served slightly before McComic was served in the Washington action.   These facts are not dispositive as to which action should have priority.   For one thing, the presently pending Washington action is but a continuation of the earlier filed Washington lawsuits, lodged by Glacier in both state and federal courts in Seattle, so that priority as to filing clearly pertains to the Washington litigation.   Also, a defendant, TWL, was served in Washington before any defendant was served in San Diego.   McComic claims service on TWL should be disregarded because TWL is defunct, a sham defendant, added in Washington to destroy jurisdiction in the federal court.   We do not have the necessary facts before us to decide the truth or falsity of that assertion.   It is clear from this record, however, that Glacier did file lawsuits in Seattle concerning the subject matter of this action, namely, performance of the real estate consulting contract between Glacier and McComic;  McComic did acquiesce in the assignment of the Washington state court action to an all-purpose judge, did submit to that judge the decision regarding whether the matter be tried in California or in Washington, and then, instead of appealing the Washington court's determination, simply pressed forward with the later filed California action.   Further, priorities of filing and service in this action amount to meaningless differences of short periods of time.   Most important is that the first forum fully to consider the question where the action should be tried opted for Washington.   That decision resulted from a noticed decisionmaking process to which both Glacier and McComic were parties.   To ignore that decision is to encourage blatant forum shopping in violation of the policy why we give comity to sister state decisions.

The fact the identities of the parties differs in the Washington and California lawsuits is not necessarily determinative.   The gravamen of both lawsuits is the same, namely, the rights and obligations growing out of the parties' conduct in relation to their consulting and joint venture agreements and dealings during a specified time period.   Presumably McComic can sue the absent defendants Burlington, McMenamin, and Wood in Seattle if they are essential to complete determination of the cause, by way of cross-complaint or other ancillary pleading;  and similarly Copson can be brought into the lawsuit there, by Glacier, or on his joinder motion if he chooses that procedure.   No one has alleged any of these parties is not amenable to jurisdiction in Washington;  whereas the jurisdiction of the California court over two parties, Burlington and Wood, has been challenged and is presently in question after grant of their motions to quash service.

5. Injunctive Relief

Code of Civil Procedure section 526 says an injunction cannot be granted “1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings.”   Glacier here argues because the Washington state court action clearly was pending at the commencement of the San Diego action, having been filed first and served on at least one defendant before the San Diego filing, the trial court had no power to stay that action in favor of the California action.   Responding, real parties rejoin first, the action in Washington is not stayed;  rather, Glacier is enjoined from proceeding in Washington.   Second, they say the statutory exception applies, to prevent a multiplicity of proceedings, pointing to Glacier's several filings in the state and federal courts in Seattle.

 It is not strictly necessary for us to resolve this contention, inasmuch as we have concluded the Washington action should go forward.   We note, however, there is no authority specifically authorizing the injunction which issued here.   As Glacier notes, the statute refers to a “ ‘multiplicity of such proceedings.’ ”   The word “such” presumably refers to the earlier filed proceedings and requires that more than one such action exist.   On the other hand, cases have permitted injunctions where only one prior proceeding was involved, e.g., Scott v. Industrial Acc. Com., supra, 46 Cal.2d 76, 81–82, 293 P.2d 18 (not directly construing Code Civ.Proc. § 526).   Here, although Glacier did file more than one action in Washington, all were directed to one end, achieving a trial in Washington;  and under such facts we think the statutory exception inapplicable, so that the trial court lacked power to enjoin the first filed, Washington action.   What it could not do directly it could not accomplish indirectly by enjoining Glacier;  any other holding would completely subvert the statute.

DISPOSITION

 We conclude the trial court abused its discretion in not granting Glacier a stay of the California action in favor of the pending action in Washington.   If follows the court also erred in enjoining Glacier from proceeding in that action.

Let a writ of mandate issue ordering the trial court to vacate its orders denying Glacier's request for a stay and enjoining Glacier from proceeding on its complaint filed in King County, Washington, and instead to make an order granting Glacier a stay of all proceedings in this matter pending disposition of Glacier's lawsuit in the trial court in King County, Washington.

I wholeheartedly endorse this court's emphasis on the principle of comity and that we should honor a reasoned decision of a sister state.   I agree this court should not perpetuate the stay of the Washington action in light of McComic's counsel's willingness to submit that precise issue to the Washington court.   I therefore concur with the majority that the trial court erred in enjoining Glacier from proceeding in the King County, Washington case.   However, I respectfully, but strongly disagree with the remaining conclusions reached by the majority.

In the context of comity it is essential that we recognize what it is the Washington court did.   The Washington court did not stay the California action.   The Washington court only declined to stay the Washington action.   The effect of this decision was to permit the two lawsuits—one in California, one in Washington—to proceed on parallel tracks.   It is clear the Washington court contemplated this result expressly ordering that discovery obtained in each action could be used in the other.   The court said all discovery was “useable in ․ the parallel California litigation regardless of the case in which the discovery originated.”   Implicit in this statement is the Washington court's recognition that California had a legitimate interest in allowing McComic to proceed in California and attempted to accommodate the California action.   Thus the Washington court's decision is consistent with the trial court's ruling here not to stay the California action.   In that sense the decision is only inconsistent with the trial court's issuance of the preliminary injunction enjoining the Washington action.   I agree we should eliminate that inconsistency.   By permitting the California action to proceed, however, we do not deny comity to the Washington state court decision or interfere with the Washington procedure.

I am particularly disturbed by this court's decision which holds that McComic waived his right to proceed in California by participating in the Washington action.   As noted earlier I can understand why that participation precludes McComic from enjoining the Washington action.   It nonetheless remains a mystery to me why that participation results in McComic's waiver of his right to proceed in California.   My intellectual frustration is heightened by my analysis of that conclusion against the backdrop of what I believe to be Glacier's counsel's shameless manipulation of the judicial system.

Glacier's counsel has argued the identical issue presented to us on eleven earlier occasions in four forums.   Inordinate judicial time has been spent examining this question.   No court until now, a California appellate court, has decided that a California litigant should be prevented from proceeding in California, the forum of its choosing.   Glacier's counsel had already submitted the same question of forum to the federal court in Seattle.   While this issue was pending in the federal court Glacier's counsel actually represented to the San Diego Superior Court a federal ruling would be a “comprehensible resolution of the forum dispute” and “would decide whether California or Washington was the more appropriate forum.”   A similar representation was also made to the San Diego federal court.   Notwithstanding these representations and even though Judge McGovern ruled California was the more appropriate forum, a decision with which the Ninth Circuit agreed, Glacier proceeded to bring the identical issue before the Washington state court.

Perhaps I am naive, but I still believe a lawyer's statements to a court cannot be categorized into truthful representations and representations “for the purpose of advocacy only.”   A lawyer as an officer of the court should not be allowed to make express representations with the unspoken intention of not complying with the court's ruling if the advocacy should prove unsuccessful.

In the spirit of comity I am quite comfortable with the Washington state court decision to leave both actions on course.   I am also comfortable leaving the parties where they placed themselves, particularly where Glacier's counsel has attempted to manipulate the legal system.   I see no reason why this court should use its extraordinary power to extricate Glacier from the dilemma of its own making.   And frankly, I am at a loss to understand in light of the foregoing why this court accuses McComic's counsel of “blatant forum shopping” (Maj. at p. 718) with the resultant sanction of being prevented from proceeding in California until the Washington case is concluded.

I admit the result which I reach sacrifices some efficiency.   I am nonetheless convinced that the benefits of my proposed conclusion outweigh any possible detriment caused by the alleged loss of efficiency.   I say this for a number of reasons including the fact that the California and Washington cases are not mirror images.   The parties and the pleaded causes are not identical.   Any loss of efficiency may well be illusory since the Washington action cannot be res judicata on causes of action not pleaded there nor for damages which Washington does not allow.   Of equal importance is that my proposed decision does not allow the parties to use us as a fifth forum to reward what at best can be described as legal gamesmanship.   It also does not interfere with the Washington forum;  it merely tracks the result reached in Washington while deferring to the sound discretion of our trial court.

And if and when McComic were to seek to advance his case for trial in California to preempt the March 7, 1987 trial date in Washington, the presiding judge of the superior court could decide whether to grant or deny that request.   I see no reason why this court should function as a super master calendar department of the superior court anticipating problems of calendar management before they arise.

The decision which I reach is also consistent with the fundamental principles of choice of forum which are deeply rooted in California precedent.  “Since it is for the plaintiff to choose a place of suit, his choice of forum should not be disturbed except for weighty reasons ․” (Code of Civ.Proc., § 410.30, Judicial Council Comment;  Corrigan v. Bjork Shiley Corp. (1986) 182 Cal.App.3d 166, 173, 227 Cal.Rptr. 247.)   When a California resident such as McComic brings a tort cause of action seeking punitive damages which is barely if at all accepted in the foreign forum, all precedent calls for opening the California forum to the plaintiff.  (See e.g., Archibald v. Cinerama Hotels 15 Cal.3d 853, 858, 126 Cal.Rptr. 811, 544 P.2d 947;  Corrigan, supra;  Holmes v. Syntex Laboratories, Inc. (1984) 156 Cal.App.3d 372, 378–379, 202 Cal.Rptr. 773.)

In light of the foregoing I would limit the grant of our extraordinary relief and not order the trial court to stay the California case pending disposition of Glacier's lawsuit in Washington.

FOOTNOTES

1.   These rulings resulted from Glacier's unsuccessful attempts to obtain stays from the District Court in California and to have the Federal District Court in Washington enjoin McComic from proceeding in California.   None of these early denials of stay requests and injunctions, however, amounted to considered decisions on the merits of the choice of forum issue, but were preliminary rulings which we do not consider dispositive.

2.   Also, Judge McGovern's decision is undercut by the challenge of Burlington and Wood to the jurisdiction of the California court over them, involved in the related appeal now pending here (D003037).   It will be recalled a ground of Judge McGovern's decision was that all essential parties had been served in California but might not be amenable to federal jurisdiction.   Now it appears as to at least two California defendants that they may be amenable to suit only in Washington.

3.   In one case, where the parties' license agreement provided California law should govern, but fraud, among other things, was alleged, the Maryland intermediate appeals court held that as to the breach of contract allegations there was no reason why the parties' choice of California law should not control, and as to the fraud, it did not matter because under the law of either state no fraud was shown.  (See Finch v. Hughes Aircraft Co. (1984) 57 Md.App. 190, 469 A.2d 867, 887.)

BUTLER, Associate Justice.

KREMER, P.J., concurs.