Filed 8/20/14 Bowers v. Abercrombie & Fitch CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


BENJAMINE BOWERS,                                                    B246196

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC486638)
         V.

ABERCROMBIE & FITCH CO., et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H.
Strobel, Judge. Affirmed.
         Law Offices of Zomber & Panagiotis and Matthew E. Panagiotis for Plaintiff and
Appellant.
         No appearance for Respondent Brian Hilburn.


                                          _______________________
       Benjamine Bowers’s action was stayed by the trial court on the basis of forum non
conveniens. Bowers appeals, and we affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       Bowers filed a complaint alleging 14 causes of action against eight named
defendants. Bowers claimed that while employed as a model in a Hollister store, he
attended a casting call for J.M. Hollister, LLC, Hollister Co. California, LLC,
Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., and Abercrombie & Fitch
Trading Co. (collectively, Abercrombie). Bowers alleged that the casting call was
conducted by Daisy Ashburn, an Abercrombie casting director, and that she subsequently
provided agent Brian Hilburn with Bowers’s name, photograph, and contact information.
Ashburn, Bowers alleged, recommended Hilburn to Bowers as a highly experienced
agent who could assist him in starting his modeling career.
       According to his complaint, Bowers signed a management agreement with
Hilburn’s company, AIG Model and Talent Management, and then went to Mississippi
for a photo shoot at Hilburn and AIG’s office. In Mississippi, Bowers alleged, Hilburn
persuaded him to disrobe and masturbate in front of the camera by telling him that this
was an industry secret for achieving a desirable facial expression for photographs.
Bowers alleged that Hilburn said he needed to be photographed in the nude to prepare for
the experience of being photographed by Abercrombie’s photographer. Bowers alleged
that at the photo shoot Hilburn exposed his penis to Bowers in an unwanted sexual
advance.
       Bowers alleged that Hilburn’s representations about how to achieve facial
expressions were false and that the photographs and video taken of him were never used
to advance his career but were in fact intended for distribution as pornography. He
claimed that Hilburn had a pattern of similarly inappropriate behavior with other
employees of Abercrombie; that Ashburn, as Abercrombie’s agent, was aware, or should
have been aware, of Hilburn and AIG’s intent to fraudulently induce Bowers to sign with
AIG and to film him posing nude and masturbating, but that she concealed that


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information from Bowers. Accordingly, Bowers alleged causes of action against
Abercrombie and Ashburn for fraud, negligent misrepresentation, intentional infliction of
emotional distress, negligent infliction of emotional distress, negligence, and negligent
hiring and supervision. He sued Hilburn and AIG for fraud in inducing him to sign the
management agreement; rescission due to fraud; breach of contract; breach of fiduciary
duty; fraud; deceit; sexual harassment; intentional and negligent infliction of emotional
distress; and negligence; and he further sought a declaratory judgment rescinding the
management agreement.
       Abercrombie moved to dismiss or stay the action based upon the doctrine of forum
non conveniens. Soon thereafter, Ashburn specially appeared to file a motion to quash
the service of summons and complaint, or, in the alternative, to dismiss or stay the action
on the basis of forum non conveniens.
       Hilburn specially appeared to file a motion “to quash service of the summons and
complaint, or, in the alternative, to dismiss based on a binding arbitration provision, or
based on the doctrine of forum non conveniens.” The motion, signed and filed by
Hilburn personally, purported to be on behalf of Hilburn and AIG. At argument on the
motion, the court advised Hilburn that the motion could be considered as to Hilburn only,
because AIG was a corporate defendant that could only appear through counsel.
       The court granted Ashburn’s motion to quash service of summons and complaint
on the ground that the court lacked personal jurisdiction over her, then granted
Abercrombie and Hilburn’s motions to stay the action based on forum non conveniens.
Bowers appealed both rulings. Bowers subsequently reported to this court that he has
resolved his claims against Abercrombie and Ashburn, and the parties stipulated to the
dismissal of the appeal as to them.




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                                      DISCUSSION
       I.     Alleged Error in Considering AIG’s Motion

       Bowers first argues that the trial court erred in granting what he terms “both AIG’s
and Hilburn’s Motions to Dismiss.” The motion in question, which was a motion to
quash, or, in the alternative, to dismiss for arbitration or based on forum non conveniens,
was filed by Hilburn personally, but purported to be on behalf of himself and AIG. The
trial court advised Hilburn in court that because he was not an attorney, he could not
represent AIG, and in its minute order, the court stated that “the Motion to Quash filed on
behalf of corporate Defendant AIG Model and Talent Management, LLC and individual
defendant Brian Hil[]burn can be considered as to individual Defendant Brian Hil[]burn,
only. The Court cannot consider the Motion as to corporate Defendant AIG because a
corporate defendant must be represented by Counsel.”
       Although the court made it clear that it was considering the motion to have been
filed only by Hilburn, Bowers argues that it nonetheless granted AIG’s motion. Bowers
bases this assertion on two references in the minute order staying the action: first, the
court’s one-time reference to the motion as being filed by “Hilburn/AIG”; and second, a
statement at the end of the minute order granting “the motion” without limitation.
Neither one of these citations establishes that the court considered the motion as to AIG,
and in light of the court’s express statement that the motion would be considered only as
to Hilburn, as well as its statement at oral argument that the forum non conveniens
motions were “from the Abercrombie defendants as well as Mr. Hilburn,” it is clear from
the record that the court restricted its consideration of the motion to Hilburn personally.
       Bowers further argues that the “Trial Court should not have considered a motion
to dismiss, motion to quash or any evidence submitted by AIG, and the Trial Court erred
in basing its dismissal of the Action on evidence and arguments presented by AIG.”
Bowers, however, does not identify any instance in the record in which the trial court
ruled on any motions as though they were filed by AIG, or considered any evidence or
arguments from non-appearing defendant AIG. As we have already discussed, when


                                              4
Hilburn filed his motion on behalf of both himself and AIG, the trial court considered that
motion only with respect to Hilburn personally. Moreover, the court did not dismiss the
action, as Bowers claims, but instead stayed it. As Bowers has not identified any instance
in which the court made these alleged errors, he has failed to demonstrate any error by
the trial court.

       II.     Forum Non Conveniens

       “Forum non conveniens is an equitable doctrine invoking the discretionary power
of a court to decline to exercise the jurisdiction it has over a transitory cause of action
when it believes that the action may be more appropriately and justly tried elsewhere.”
(Stangvik v. Shiley (1991) 54 Cal.3d 744, 751 (Stangvik).) The defendant has the burden
of proof in a forum non conveniens motion. (Ibid.) In analyzing such a motion,
California courts follow the procedure outlined in Stangvik. The first step is determining
“whether the alternate forum is a ‘suitable’ place for trial.” (Ibid.) “An alternative forum
is suitable if it has jurisdiction and the action in that forum will not be barred by the
statute of limitations. [Citation.] It bears emphasis that ‘[i]t is sufficient that the action
can be brought, although not necessarily won, in the suitable alternative forum.’
[Citations.] That the law is less favorable to the plaintiffs in the alternative forum, or that
recovery would be more difficult if not impossible, is irrelevant to the determination
whether the forum is suitable unless ‘the alternative forum provides no remedy at all.’
[Citations.] [¶] The ‘no remedy at all’ exception applies ‘only in “rare circumstances,”
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.’ [Citation.]”
(Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696-697 (Guimei).) This
threshold determination is nondiscretionary, involves no balancing of interests (Shiley v.
Superior Court (1992) 4 Cal.App.4th 126, 132), and has been held to be subject to either
a de novo or substantial evidence review on appeal. (Investors Equity Life Holding Co. v.
Schmidt (2011) 195 Cal.App.4th 1519, 1528 (Investors Equity) [de novo standard];
Guimei, at p. 696 [substantial evidence standard].)


                                               5
       If the trial court determines an alternative forum is a suitable place for trial, “the
next step is to consider the private interests of the litigants and the interests of the public
in retaining the action for trial in California.” (Stangvik, supra, 54 Cal.3d at p. 751.)
Private interest factors to consider include “the ease of access to sources of proof, the cost
of obtaining attendance of witnesses, and the availability of compulsory process for
attendance of unwilling witnesses.” (Ibid.) Public interest factors “include avoidance of
overburdening local courts with congested calendars, protecting the interests of potential
jurors so that they are not called upon to decide cases in which the local community has
little concern, and weighing the competing interests of California and the alternate
jurisdiction in the litigation.” (Ibid.)
       We review the trial court’s determination on balancing private and public interests
for an abuse of discretion. (Guimei, supra, 172 Cal.App.4th at p. 696.) As we noted in
Guimei, “We ‘will only interfere with a trial court’s exercise of discretion where [we
find] that under all the evidence, viewed most favorably in support of the trial court’s
action, no judge could have reasonably reached the challenged result. [Citation.] “[A]s
long as there exists ‘a reasonable or even fairly debatable justification, under the law, for
the action taken, such action will not be . . . set aside . . . .’” [Citations.]’ [Citation.]”
(Id. at p. 696.)

       A. Suitable Alternative Forum

       Here, the trial court determined that Mississippi was a suitable alternative forum.
The court observed that the photo shoot during which the sexual abuse allegedly occurred
took place in Mississippi; that the Abercrombie defendants consented to jurisdiction in
Mississippi; that both Hilburn and the Abercrombie defendants agreed to waive or toll the
relevant statute of limitations on the intentional infliction of emotional distress claim if
the case were tried in Mississippi; and that Ashburn, as to whom personal jurisdiction in
Mississippi was questionable, had successfully moved to quash service of summons and
the complaint and was no longer a party to the action. Accordingly, the court concluded



                                                 6
that “Mississippi appears to be a suitable alternative forum for those parties who are now
before the court.”
       Under either standard of review we find no error in this ruling. All the defendants
who had appeared in the action agreed to subject themselves to the jurisdiction of the
Mississippi courts and to waive the statute of limitations defense to the intentional
infliction of emotional distress claim.1 Therefore, the evidence showed that Mississippi
had jurisdiction and that the action would not be barred by the statute of limitations as to
the defendants who had appeared in the case. (Guimei, supra, 172 Cal.App.4th at p. 696
[forum suitable if it has jurisdiction and the action will not be barred by the statute of
limitations].) This was enough to permit the court to determine that Mississippi was a
suitable alternative forum and to issue a stay if the balancing of public and private
interests so warranted.
       As Bowers notes, non-appearing Mississippi defendant AIG has not waived the
statute of limitations on the intentional infliction of emotional distress claim. By staying
the action, however, the trial court retained the power to verify that Bowers is able to
bring his action in Mississippi. Should AIG appear in Mississippi proceedings and assert
a meritorious statute of limitations defense, Mississippi may no longer be a suitable
alternative forum for plaintiff’s action, and Bowers may request that the Los Angeles
County Superior Court lift the stay and reset the matter for trial. (See Guimei, supra, 172
Cal.App.4th at p. 704; see also Investors Equity, supra, 195 Cal.App.4th at p. 1534 [a

1       Bowers argues that the trial court erred in concluding that Abercrombie had agreed
to waive the statute of limitations defense if the case were to be filed in Mississippi and
that they would consent to jurisdiction there. Bowers acknowledges, however, that these
alleged errors are moot due to Abercrombie’s dismissal, and we agree. (Simi Corp. v.
Garamendi (2003) 109 Cal.App.4th 1496, 1503 [matter is moot when a “ruling can have
no practical impact or cannot provide the parties with effective relief”].) Bowers also
claims the court “incorrectly concluded that AIG had waived any statute of limitations
defenses” in Mississippi, but the record does not support this contention. The trial court
observed that Hilburn and Abercrombie had waived the statute of limitations but did not
make any conclusions concerning non-appearing defendant AIG, noting only that
Mississippi was a suitable alternative forum “for those parties who are now before the
court.”

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court has considerably wider discretion to grant stays because California retains
jurisdiction; if other forum does not in fact prove suitable, plaintiff will have the
opportunity to seek relief in California courts].)

       B. Public and Private Interests

       Although it is well established that the balance of private and public interests is
reviewed for an abuse of discretion (Guimei, supra, 172 Cal.App.4th at p. 696), Bowers
argues that the court’s ruling is subject to de novo review because the court misapplied
the law. According to Bowers, the trial court determined not whether California was a
seriously inconvenient forum but whether Mississippi was a more convenient forum. He
contends that the appropriate test requires a defendant to demonstrate that California is a
“seriously inconvenient forum.” (Ford Motor Co. v. Insurance Co. of North America
(1995) 35 Cal.App.4th 604, 611 (Ford).) Ford’s characterization of the standard of
proof, however, is not derived from statutory language or California Supreme Court
decisions, and the decision has been criticized for imposing a burden of proof higher than
that stated by the Supreme Court in its forum non conveniens cases. (National Football
League v. Fireman’s Fund Insurance Company (2013) 216 Cal.App.4th 902, 930-933
(NFL).)
       Moreover, because Ford involved a dismissal rather than a stay, its test is
inapplicable here. (Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th
408, 412; NFL, supra, 216 Cal.App.4th at p. 931.) While a resident plaintiff is entitled to
a strong preference for his chosen forum, residence in California “is not dispositive
either. As our Supreme Court has stated ‘[i]n considering whether to stay an action, in
contrast to dismissing it, the plaintiff’s residence is but one of many factors which the
court may consider.’ (Archibald v. Cinerama Hotels [(1976)] 15 Cal.3d [853,] 860[].)”
(Century Indemnity, at p. 413.)
       The trial court cited the Stangvik case, examined the public and private interests in
detail, and concluded that based on the balance of those interests Mississippi was the
proper forum to decide the dispute. We find no abuse of discretion. While the private

                                              8
interest factors did not particularly favor either Mississippi or California, the public
interest factors tended strongly to support trial in Mississippi. With respect to the private
interest factors, the percipient witnesses to the events identified in this case were
primarily located in Mississippi and Ohio. Bowers contended that “many” of the 31
models Hilburn and AIG have who are currently signed with California modeling
agencies would be needed for deposition and trial, as would his own managers and
agents, but none of these California-based witnesses were percipient witnesses to the
events alleged in the complaint and it was not clear how all of Hilburn and AIG’s other
clients in California would be required for the litigation of this matter. Hilburn had
already been deposed in Mississippi, and Bowers offered to depose Ashburn in Ohio.
The parties did not offer evidence of the location of documentary evidence, and this
factor is of limited significance in this age of electronic document transfer. (Ford, supra,
35 Cal.App.4th at p. 617) “Documents, however, may be transported easily from one
jurisdiction to another”].) The parties, moreover, did not provide specific evidence
concerning the availability of compulsory process for obtaining the attendance of
unwilling witnesses. None of the tortious acts alleged in the complaint occurred in
California: the contact with the casting director took place in Utah, and the photo shoot
in Mississippi. While a resident plaintiff’s choice of forum in his or her home state is
afforded substantial weight in the forum non conveniens analysis (Ford, supra, 35
Cal.App.4th at p. 611), California’s interest in providing Bowers with a forum for his
action is diminished by the fact that he was not a California resident when the events
giving rise to the action occurred. Although the litigation is related to the entertainment
industry, an industry in which California has an interest (Animal Film, LLC v. D.E.J.
Productions, Inc. (2011) 193 Cal.App.4th 466, 475 (Animal Film), the link to California’s
interests is not strong because the gravamen of the complaint concerns acts occurring
outside California prior to the time that Bowers became a California resident.
       Mississippi, in contrast, has a strong interest in this litigation. The alleged sexual
abuse took place in Mississippi and the litigation concerned the conduct and practices of
Mississippi resident Hilburn and AIG, a Mississippi limited liability company. Bowers

                                              9
entered into a contract with Hilburn and AIG, and the contract specified that it would be
subject to the laws of Mississippi and that disputes would be resolved by arbitration.
Based on the balance of these factors, the court concluded that California was an
inconvenient forum. We cannot say that no reasonable judge would make the same
ruling.2

                                     DISPOSITION

       The judgment is affirmed. In absence of respondent’s brief, each party is to bear
its own costs on appeal.




                                                 ZELON, J.
We concur:




       PERLUSS, P. J.




       WOODS, J.




2      In keeping with his argument that our review of the court’s private and public
interest balancing analysis should be de novo, Bowers presents a series of arguments as
to how to apply the relevant factors in the forum non conveniens analysis. As we have
concluded that the appropriate standard of review for this portion of the forum non
conveniens analysis is an abuse of discretion standard and that the trial court did not
abuse its discretion here, we need not address Bowers’s arguments as to how the
evidence, analyzed independently, supports a determination to retain jurisdiction in
California.

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