Filed 8/21/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


OLIVIER AUFFRET, et al.,                            H040630
                                                   (Monterey County
        Plaintiffs and Appellants,                  Super. Ct. Nos. M99601, M104580,
                                                    M110557, M111913)
        v.

CAPITALES TOURS, S.A., et al.,

        Defendants and Respondents.


        This is the second appeal arising out of a 2009 bus accident carrying 34 French
tourists and their guide, which resulted in a consolidated action brought by most of the
passengers or their families against respondent Capitales Tours, S.A. and others. In the
first appeal, this court affirmed an order staying the action for one year under the doctrine
of forum non conveniens, pursuant to Code of Civil Procedure section 410.30 and
Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744 (Stangvik). We found no abuse of discretion
in the superior court’s determination that the action would be more suitably tried in
France.
        Two years after the stay, the superior court dismissed the action, finding that
plaintiffs had failed to pursue their claims in France and had even opposed the
assumption of jurisdiction by the French courts. Plaintiffs again appeal, contending that
the order was premature and failed to comply with procedural and substantive
requirements for dismissal. We agree that further proceedings are necessary before
dismissal is appropriate. Accordingly, we must reverse the order.
                                        Background
       The facts and procedural history underlying the ruling now before us were
described in our previous opinion (Auffret v. Capitales Tours, S.A., (Apr. 24, 2013,
H037551) [nonpub. opn.], (Auffret I)) and need be only briefly summarized here. The
accident that led to this litigation occurred on April 28, 2009, on Highway 101 in
Monterey County. While driving across a bridge the bus operator, John Egnew, lost
control of the vehicle, which collided with the right and left bridge rails and eventually
rolled onto its side. Eighteen of the occupants were ejected; several of them were thrown
over the bridge onto the railroad tracks below. Egnew and four passengers were killed,
21 were severely injured, and 10 sustained minor injuries.
       Four lawsuits were brought by 26 plaintiffs, naming Capitales Tours and other
defendants, both corporate and individual. On May 27, 2011, Capitales Tours and two
other defendants1 moved to dismiss or, alternatively, stay the action, asserting that France
was a suitable alternative forum and that both public and private interest factors
supported moving the litigation to France. Plaintiffs vigorously opposed the motion,
anticipating “untold hardship and a grossly unjust result.” They pointed out that most of
the material witnesses, particularly the emergency and hospital personnel, were in
California, and they would be available to testify. Those personnel and the treating
hospitals “would very likely receive NOTHING” if the cases were transferred to France,
and plaintiffs themselves would not recover enough to pay more than $5 million in
outstanding medical bills. In addition, most of the documentary evidence, including
medical records and deposition transcripts, were in California.



  1
    The other moving defendants were two Canadian parties, Contact Amerique and its
sole shareholder, Silvy Joncas. These parties join in the arguments in Capitales Tours’s
brief on appeal.


                                             2
       The superior court, however, agreed with defendants that France was a suitable
alternative forum and that both public and private interest factors favored France as a
forum for plaintiffs’ claims. Among its reasons were the facts that none of the plaintiffs
or the remaining defendants was a California resident and that plaintiffs were seeking
application of the French Tourism Code in their primary cause of action, which, along
with translation expenses, would be “logistically challenging.” The court further
expressed reluctance to “spend lots of time for a case in which California really has
hardly any interest left.” The court thus concluded that “France’s competing interest in
this litigation clearly outweighs California’s.” In its ensuing order on September 21,
2011, the court stayed the consolidated actions for one year. If France accepted
jurisdiction by that time, the actions would be dismissed.
Proceedings in France
       In December 2011, Capitales Tours initiated proceedings in the Court of First
Instance of Paris,2 summoning plaintiffs along with certain travel agencies and other
entities. Capitales Tours asked the French court to accept jurisdiction to adjudicate the
existing dispute. The pretrial judge, however, accepted plaintiffs’ argument invoking lis
pendens, because the Monterey court had not completely declined jurisdiction but had
only stayed the proceedings there. Capitales Tours then appealed the pre-trial judge’s
decision to the French appellate court, the Cour d’Appel. In December 2012 the
Cour d’Appel reversed, noting that the parties were not entirely the same in the


  2
    In his declaration supporting Capitales Tours’s motion to dismiss, its attorney
provided a comparison of the Paris tribunals with those of California. Procedural
challenges, he explained, are heard by the pre-trial judge in the Court of First Instance of
Paris (“Tribunal de Grande Instance de Paris”), whereas a full three-judge panel of that
court decides the factual and legal issues involved. Appeals of decisions by the pre-trial
judge are heard by the Court of Appeal (Cour d’Appel de Paris) and finally to the
Supreme Court (Cour de Cassation).


                                              3
French and American actions. The appellate court thus overturned the pre-trial judge’s
lis pendens ruling. It nevertheless declined to retain jurisdiction over the matter, the
merits of which had to be decided by the Court of First Instance of Paris. It was that
lower court which had “rationae materiae jurisdiction and rationae loci jurisdiction to
hear the dispute which was submitted by Capitales Tours.” Plaintiffs appealed the
decision of the Cour d’Appel to the highest court of France, the Cour de Cassation.
       On April 24, 2013, while that final appeal was pending before the Cour de
Cassation, this court issued its opinion in Auffret I. Applying the appropriate deferential
standard of review to the superior court’s September 2011 order, we found no abuse of
discretion in the superior court’s decision to stay the matter under forum non conveniens.
Following plaintiffs’ unsuccessful petition for review by the California Supreme Court, a
remittitur issued on July 15, 2013.
       On August 19, 2013, Capitales Tours moved to dismiss the entire action, citing
plaintiffs’ failure to initiate proceedings in France as anticipated by the Monterey court
judge in staying the action. Moreover, Capitales Tours noted at the October 2013
hearing, plaintiffs had actively resisted the assumption of jurisdiction by the French
courts, by arguing lis pendens and appealing the Cour d’Appel’s reversal of the pre-trial
judge’s ruling to the French supreme court, the Cour de Cassation. According to
Capitales Tours, the Cour d’Appel had held that France did have jurisdiction, so for that
additional reason it urged the court to dismiss the Monterey action.
       Plaintiffs responded that the exact nature of the French courts’ jurisdiction was
unclear, as the concept did not translate easily between French and English, and there
were “pre-jurisdictional issues” that did not involve the merits of plaintiffs’ claims and
could result in the dismissal of Capitales Tours’s summons against plaintiffs. In any
event, the jurisdictional issue was still pending before the Cour de Cassation. Plaintiffs
further maintained that during the period following the superior court’s stay order they
were only exercising their right to appeal the stay order. By taking that “wait and see

                                              4
approach,” and given that they had not been ordered to proceed in France, they were
under no obligation to initiate another action in France. At the October 18, 2013 hearing,
plaintiffs urged the superior court to extend the stay just until the Cour de Cassation
issued its decision, which was expected to occur within a few months, in early 2014.
       The superior court expressed its inclination not to wait, however, and it issued its
ruling the same day. Citing Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162
Cal.App.4th 122 (Van Keulen), the court found that “[p]laintiffs—non-residents of
California—have had more than two years to pursue their claims in France, the
alternative, convenient venue. Plaintiffs not only failed to do so, but acted to prevent
French court jurisdiction. It is not the court’s duty to assure Plaintiffs an adequate
alternative forum to pursue their claims. Thus, dismissal is proper for the reasons set
forth by Defendants.” One month later, November 18, 2013, the court filed its order
dismissing the action “on the ground of inconvenient forum.” Plaintiffs filed their notice
of appeal from that order on January 17, 2014.
                                          Discussion
       In Auffret I, we noted that a ruling on a forum non conveniens motion is reviewed
for abuse of discretion. (Stangvik, supra, 54 Cal.3d at p. 751.) We also noted, however,
that “[t]he availability of a suitable alternative forum for the action is critical.”
(American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th
431, 435.) An alternative forum will be found suitable where an action “ ‘can be
brought,’ although not necessarily won. There is no balancing of interests in this
decision, nor any discretion to be exercised.” (Shiley Inc. v. Superior Court (1992) 4
Cal.App.4th 126, 132; accord, American Cemwood Corp. v. American Home Assurance
Co., supra, at p. 437 [forum is generally suitable “ ‘if there is jurisdiction and no statute
of limitations bar to hearing the case on the merits’ ”].) That California provides a more
favorable or “meaningful” remedy, or that recovery is more difficult in the alternative
forum, does not make the alternative forum unsuitable. (Roulier v. Cannondale (2002)

                                                5
101 Cal.App.4th 1180, 1187; Stangvik, supra, at p. 753, fn. 5.) Only if the foreign
jurisdiction offers “ ‘no remedy at all’ ” does the law of that jurisdiction contravene its
suitability. (Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696-697;
accord, Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519,
1530.) This no-remedy exception is applied rarely, “such as where the alternative forum
is a foreign country whose courts are ruled by a dictatorship, so that there is no
independent judiciary or due process of law.” (Shiley Inc. v. Superior Court, supra, at
pp. 133-134; accord, Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1188-1189;
Guimei v. General Electric Co., supra, at p. 697.)
       In undertaking our review in this appeal we have been immediately confronted
with a procedural anomaly. The effect of Auffret I was to delay dismissal of plaintiffs’
case until it was established that the French courts would assume jurisdiction over the
issues presented. In upholding the superior court’s stay, we noted “the tentative nature of
the procedural posture before us.” We specifically stated, “If the French courts finally
decline to take jurisdiction over Capitales Tours’s lawsuit, it will be obvious that France
is not a suitable alternative forum for plaintiffs’ action, and we presume that the
Monterey County Superior Court will lift the stay and reset the matter for trial.”
       The contingency on which the dismissal depended had not yet occurred at the time
of the October 18, 2013 hearing and ruling. The superior court, however, declined to
wait for the ruling of the Cour de Cassation on the jurisdictional question. Having
already weighed the Stangvik factors in Auffret I, the superior court on this occasion
dismissed plaintiffs’ case less for forum non conveniens than for plaintiffs’ failure to
initiate their lawsuit in France for “more than two years.”
       But during that period plaintiffs were pursuing their appeal here and in the
Supreme Court, while also challenging the French court’s jurisdiction to act on Capitales
Tours’s separate action. We do not agree that plaintiffs should be effectively sanctioned
for pursuing their appellate remedies in California and for exercising their right to oppose

                                              6
the exercise of jurisdiction in France. It was only one month after the remittitur in
Auffret I that Capitales Tours moved to dismiss the case. Because the Cour de Cassation
had not yet issued its ruling on jurisdiction at that point, no final decision could be relied
on to fulfill the clear prerequisite of the dismissal—that jurisdiction first be established in
France. Consequently, the superior court’s dismissal was premature.
       Capitales Tours, however, has submitted a copy of the decision by the Cour de
Cassation and an English translation of that document. Its decision, of which we have
taken judicial notice, was not issued until October 22, 2014. While plaintiffs’ current
appeal of the Monterey court’s dismissal was pending, this court granted Capitales
Tours’s request to take judicial notice of those documents.
       According to Capitales Tours, the Cour de Cassation’s ruling confirms that the
French courts have accepted jurisdiction over the controversy between plaintiffs and
Capitales Tours. In their reply brief plaintiffs respond that Capitales Tours has
mischaracterized the Cour de Cassation’s decision, that the English translation of the
decision is “unintelligible,” and that the legal effect of the decision is obscure. We agree
with plaintiffs that the decision does not permit any conclusion regarding its effect on the
case brought by plaintiffs in superior court here. The decision appears to pertain to two
appeals of unclear origin based on various articles of the French Code of Civil Procedure.
The proceedings arose from a summons brought by Capitales Tours, who was suing
numerous defendants, including various travel agents which Capitales Tours believed
should indemnify it for any damages it would have to pay plaintiffs. The successive
appeals in France primarily appear to have concerned the applicability of the lis pendens
doctrine, since that was the issue originally raised to the pretrial judge. We simply
cannot discern from the decision of the Cour de Cassation whether the alleged liability of
Capitales Tours to plaintiffs will be adjudicated in France. And it is not for this court to
take new evidence on this critical procedural issue. What is required is a further hearing
by the superior court, based on expert opinion or whatever other evidence is necessary to

                                               7
determine the effect of the Cour de Cassation’s decision on the viability of the lawsuit
presently in abeyance in Monterey.
       Van Keulen, supra, 162 Cal.App.4th 122 does not convince us otherwise. In that
case the appellate court upheld the dismissal of a wrongful termination action under Code
of Civil Procedure section 583.4103 because the plaintiff airline pilots had not diligently
prosecuted the action. The superior court, relying on forum non conveniens, had
previously stayed the action with respect to the plaintiff airline pilots who were
California residents, while dismissing it as to the non-California plaintiffs. All nine
plaintiffs unsuccessfully appealed, ending with the Supreme Court’s denial of review on
March 19, 2003. (Van Keulen, supra, at p. 126.) Thereafter the California plaintiffs
failed to pursue their action in Hong Kong, the alternative forum. Plaintiffs offered no
evidence to support their asserted diligence; on the contrary, it appeared to the appellate
court that they “[did] absolutely nothing for three years” after the stay and “pursued no
discovery for over four years” after the stay. (Id. at p. 132.) In affirming the final
dismissal order, the Court of Appeal, Second Appellate District, Division Three, applied
the factors set forth in California Rules of Court, rule 3.1342(e), finding no abuse of
discretion.
       The procedural posture of the case before us does not afford wholesale reliance on
Van Keulen at this point. There was no uncertainty as to whether Hong Kong would
accept jurisdiction, and yet the Van Keulen plaintiffs did not join in the existing
consolidated actions or bring suit in Hong Kong until February 2006, nearly three years
after the Supreme Court denied review. (Van Keulen, supra, 162 Cal.App.4th at p. 127.)


  3
     Code of Civil Procedure section 583.410, subdivision (a), states: “The court may in
its discretion dismiss an action for delay in prosecution pursuant to this article on its own
motion or on motion of the defendant if to do so appears to the court appropriate under
the circumstances of the case.”


                                              8
Here it was only one month after plaintiffs exhausted their state appellate rights that
Capitales Tours moved to dismiss the Monterey action. Furthermore, it is unclear what
additional procedural obstacles may be presented to the courts in France before they
agree that the controversy may be heard there. With no conclusive proof that Capitales
Tours’s action in France will be heard, the superior court’s dismissal was not only
premature but unreasonable.
       In short, the continuing uncertainty of the parties’ status in the French judicial
system requires further determination before it can be affirmatively demonstrated that
France will indeed hear the issue of Capitales Tours’s liability to plaintiffs for the bus
accident in 2009. On remand the superior court may receive whatever evidence is
necessary to establish conclusively that the matter will be heard in the alternative forum.
At that point, should plaintiffs themselves determine that the issues they wish to be
determined cannot be decided in Capitales Tours’s action, it would be incumbent on them
to bring their own lawsuit in France. If, on the other hand, the superior court is unable to
determine conclusively that plaintiffs’ grievance will be heard in the French courts, it
should lift the stay and hear the action so that these parties may finally have their dispute
resolved.
                                         Disposition
       The order of dismissal is reversed. On remand, the superior court shall extend the
stay until, upon further hearing, it determines that plaintiffs have a suitable alternative
forum available in France. If it cannot make that determination, the case should proceed
in Monterey County Superior Court.




                                               9
                                                      _________________________________
                                                      ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
WALSH, J.*




Auffret et al. v. Capitales Tours S.A. et al.
            4
H040630

   *
     Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
Trial Court:                                     Monterey County Superior Court
                                                 Superior Court Nos. M99601, M104580,
                                                 M110557, M111913
Trial Judge:                                     Hon. Kay T. Kingsley

Counsel for Plaintiffs/Appellants:               Luscutoff Lendormy & Associates
Olivier Auffret, et al.                          Jean-Yves Pierre Lendormy
                                                 Conor D. Mack

Counsel for Defendant/Respondent:                McKay, de Lorimier & Acain
Capitales Tours, S.A., et al.                    John P. McKay
                                                 Michael Paul Acain

                                                 Musick Peeler & Garrett
                                                 Catherine Mi Lee




Auffret et al. v. Capitales Tours S.A., et al.
H040630
