Filed 5/17/21 Sharkh v. Continentale Krankenversicherung A.G. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MIRIAM ABU SHARKH et al., B303219
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. SC127208)
v.
CONTINENTALE
KRANKENVERSICHERUNG
A.G. et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gerald Rosenberg and Marc D. Gross,
Judges. Reversed and remanded.
McKennon Law Group, Robert J. McKennon and Andrea
Soliz for Plaintiffs and Appellants.
Wilson Elser Moskowitz Edelman & Dicker, Gary S. Pancer
and Adam Le Berthon for Defendant and Respondent
Continentale Krankenversicherung a.G.
Daniels, Fine, Israel, Schonbuch & Lebovitz and Mark R.
Israel for Defendant and Respondent Global Medical
Management, Inc.
_______________________________
Miriam Abu Sharkh, both in her individual capacity and as
guardian ad litem for her minor sons, LM Abu Sharkh Holfeld
and LV Abu Sharkh Holfeld, appeals from the judgment of
dismissal entered after the trial court granted the motion to
dismiss under the doctrine of forum non conveniens filed by
defendant Continentale Krankenversicherung a.G. and joined by
Global Medical Management, Inc. (GMMI). We reverse and
remand for the trial court to reconsider the motion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties and the Insurance Policy
Continentale is a German insurance company with its
principal place of business in Dortmund, Germany. Continentale
sells comprehensive health and long term care insurance directly
to individuals in Germany and through group policies in
partnership with organizations in Germany. In 1992
Continentale contracted with the German Academic Exchange
Service (Deutscher Akademischer Austauschdienst e.V. or
DAAD) to provide health insurance to individual members of
DAAD. The contract has been renewed annually since 1992.
DAAD, headquartered in Bonn, Germany, is a consortium
of German higher education institutions and their student bodies.
DAAD provides scholarships and grants to students, researchers
and lecturers to study and work in Germany and internationally.
Pursuant to the contract between Continentale and DAAD,
2
Continentale agreed to provide health insurance to DAAD
funding recipients and their immediate families while those
recipients travelled, worked and studied outside Germany.
DAAD collects premium payments from its individual members
and pays the policy premium to Continentale in a lump sum each
month. In order to be covered under the policy an individual
must be registered by DAAD with Continentale. The policy
states its “area of application is countries outside of Germany,
unless otherwise agreed” and the “scope of the insurance
cover[age] is based on the [policy] as well as the statutory
regulations of the Federal Republic of Germany.”1
GMMI is a Texas corporation with its principal place of
business in Pembroke Pines, Florida. In 2012 Continentale and
GMMI entered into a contract pursuant to which GMMI would
“provide medical cost containment services” for Continentale in
the United States, including “medical case management,”
providing evidence of coverage to insureds’ medical providers,
processing submitted claims and paying approved medical
claims.2 According to Continentale, although GMMI issued
payments for approved claims in the United States, all coverage
decisions were made by Continentale employees in Germany.
1 The policy was issued in German. The record contains an
English language translation of the policy prepared by a
translator in Cologne, Germany in 2017 and submitted by
Continentale in support of its motion to dismiss.
2 In exchange for services provided Continentale agreed to
pay GMMI “twenty-two percent (22%) of the amount saved or
recovered on [Continentale’s] behalf from medical providers,
insurance companies and all third parties.”
3
The contract between GMMI and Continentale was executed in
both German and English.
Sharkh is a citizen of both Germany and the United States.
In 2007 she took a position at Stanford University, initially as a
visiting scholar with the Center of Democracy, Development and
Rule of Law and later as a consulting associate professor with the
Center for International Development. Because of her position at
Stanford, Sharkh was eligible for health insurance through
DAAD’s group policy with Continentale. DAAD registered
Sharkh as an insured under the group policy in October 2006
with an address in Mainz, Germany. In January 2007
Continentale was provided with an updated address for Sharkh
in Palo Alto, California. It is undisputed that Sharkh was a
resident of California continuously from 2007 to mid-2016.
LM was born in California in 2011. LV was born in
California in 2013. Upon his birth each child was registered with
Continentale as an insured under the DAAD group policy.
2. LM’s Illness and Cancellation of the Policy
When he was five months old, LM contracted measles. As a
result he developed a rare, progressive and usually terminal
brain disorder that includes inflammation and irritation in the
brain. By the time he was four years old, LM’s condition had
deteriorated significantly, requiring him to be hospitalized for
almost six months during late 2014 and early 2015. LM did not
have control over his extremities; he suffered from frequent
seizures, was fed through a tube in his stomach and often
required supplemental oxygen.
In March 2015 LM’s doctors informed Sharkh that LM
likely had only three months to live. LM’s doctors recommended
he be discharged to the family home with 24-hour nursing and
4
hospice care. Continentale agreed to the treatment plan.
According to the first amended complaint, in July 2015, as LM
lived beyond his three-month life expectancy, Continentale and
GMMI began to deny or delay payment of claims for reasons that
had never previously been raised and in some cases denied
coverage for preapproved claims or claims substantially similar
to those that had been previously paid.
In January 2016 Sharkh received an email from GMMI
inquiring about LM’s current life expectancy. When the family’s
physician replied that LM had already outlived his anticipated
life expectancy, GMMI responded the answer was not sufficient.
In February 2016 Continentale and GMMI began refusing to pay
for LM’s nursing care.
Sharkh contacted Continentale in an attempt to resolve the
claim denials but was told GMMI handled claims in the United
States and Continentale did not have access to information
necessary to explain the claims decisions. Sharkh then reached
out to GMMI and was told she would be contacted by the GMMI
employee who handled her claims. Sharkh never received a
response.
On April 29, 2016 Sharkh received an email from
Continentale stating it was terminating the family’s coverage
under the policy. The email stated Continentale had signed an
agreement with DAAD to terminate coverage without prior notice
and cited as a legal basis a provision of the German Civil Code.3
The email also stated, “In particular, the duration and
3 According to the first amended complaint the cited section
of the German Civil Code provides that a contract may be
terminated for “a compelling reason” but in certain circumstances
termination may require notice and opportunity to cure.
5
multiplicity of the fraudulent actions as well as the high damages
incurred in this context are decisive.”4 The email provided no
information regarding the fraudulent actions Sharkh was alleged
to have taken.
3. The First Amended Complaint
On March 9, 2017 Sharkh filed a complaint and on
November 6, 2017 a first amended complaint against
Continentale and GMMI asserting claims for breach of contract
and breach of the implied covenant of good faith and fair dealing
against both defendants and a claim for negligence against
GMMI only. The first amended complaint alleged Continentale
and GMMI had breached the policy by unreasonably delaying
payment or failing to pay properly submitted claims for care that
was medically necessary and covered under the terms of the
policy. It further alleged Continentale and GMMI breached the
implied covenant by, among other things, asserting false,
baseless reasons for denying claims; failing to search for evidence
supporting payment of claims; failing to provide prompt and
reasonable explanations for claim denials; and unreasonably and
in bad faith terminating coverage. The cause of action for breach
of the implied covenant also included multiple references to
California Insurance Code sections and California Regulations
the defendants were alleged to have violated. The negligence
claim alleged GMMI had breached the duty of care imposed by
California law on administrators of group benefits insurance
policies.
4 The email was written in German, and a translation was
provided in the first amended complaint.
6
The first amended complaint stated that, after
Continentale’s cancellation of the policy, the family was no longer
able to afford medical care for LM in the United States and had
relocated to Peru in May 2016. As a result, for purposes of
diversity jurisdiction, “Plaintiffs currently permanently reside
outside of the United States” and could not bring their claims in
federal court.
4. Continentale’s Motion to Quash Service or Dismiss
On January 8, 2018 Continentale moved to quash the
service of summons for lack of personal jurisdiction or, in the
alternative, to dismiss the first amended complaint on the ground
of forum non conveniens. Continentale argued it was not subject
to general jurisdiction in California because it was a German
corporation and it was not subject to specific jurisdiction because
it did not have sufficient minimum contacts with California.
Specifically, Continentale argued it did not receive premium
payments from Sharkh in California, instead receiving payments
from DAAD, and it was not licensed or authorized to do business
in California. As to forum non conveniens Continentale argued
the action could be litigated more efficiently and economically in
Germany because the majority of witnesses and documents were
located in Germany, including employees of Continentale and
DAAD who had knowledge of the insurance policy and claims.
Continentale also argued German law applied to the dispute
pursuant to the policy provision stating the scope of coverage was
based on German statutory regulations. Further, it argued,
California had no interest in the dispute because Sharkh no
longer resided here. The motion included the declaration of
Manfred Hoffman, Continentale’s department manager of special
health insurance contracts. Hoffman’s declaration, executed in
7
English, stated Continentale’s employees reside in Germany and
“primarily speak German, not English.”
Sharkh opposed the motion, arguing, as to forum non
conveniens, that Germany was not a suitable available forum
because plaintiffs in Germany must pay attorney fees in advance,
do not have the option of hiring an attorney on a contingency
basis and could be responsible for the opposing parties’ attorney
fees if the litigation were unsuccessful. Such costs would be
prohibitive to Sharkh pursuing legal action in Germany. Even if
Germany were a suitable available forum, Sharkh argued, it
would not be more convenient to litigate the case there because
the majority of witnesses reside in California, including doctors
and nurses who participated in LM’s medical care. Sharkh
submitted a declaration stating she and her sons were residents
of California at the time of the alleged injuries and she left
California only because she could no longer afford healthcare for
LM after Continentale’s cancellation of the policy. She stated she
had initially moved to Peru and, as of March 2018, was living in
Spain. Sharkh also recounted having received correspondence
from Continentale while living in California. The opposition also
included the declaration of a German attorney who explained the
purported choice of law provision cited by Continentale referred
only to the “scope of insurance” provided and did not dictate
German law would apply to any dispute arising under the policy.
In reply papers Continentale submitted the declaration of
its own German attorney disputing the points raised in Sharkh’s
opposition but conceding the policy language was “not a classical
choice of law provision,” however, “it can be used to determine the
law applicable to disputes arising under the DAAD policy.”
8
Counsel for GMMI also submitted a declaration stating GMMI
did not object to jurisdiction or litigation in Germany.
In April 2018 the trial court denied the motion to quash
service for lack of personal jurisdiction, finding Continentale had
the minimum contacts necessary to confer specific jurisdiction:
“By extending the insurance to Plaintiffs knowing they resided in
California, [Continentale] purposefully availed itself of
California’s benefits by creating a continuing obligation to its
California insureds and the claims filed by the Plaintiffs that
were reviewed and approved by Defendant Continentale.” The
court further stated California had an important interest in
providing redress to California residents whose insurance claims
were unreasonably denied. The court did not take up the issue of
forum non conveniens, denying that part of the motion without
prejudice.5
5. Continentale’s Renewed Motion To Dismiss or Stay for
Forum Non Conveniens
On August 27, 2018 Continentale filed a renewed motion to
dismiss or stay the action based on forum non conveniens.6 The
motion reiterated the points raised in its prior motion, focusing
on its argument the dispute had no nexus to California because
the Sharkh family no longer resided here and German law would
apply to the dispute. The motion included a second declaration
5 Continentale filed a petition for writ of mandate seeking
review of the trial court’s jurisdiction findings, which we denied.
(Continentale Krankenversicherung a.G. v. Superior Court
(May 9, 2018, B289817).)
6 GMMI joined the motion by means of a declaration from its
counsel.
9
from Continentale’s German attorney discussing the difficulty of
obtaining pretrial discovery from Germany and the inability to
compel the attendance of witnesses from Germany and stating
that, under German choice of law principles, German law would
apply to this dispute. Hoffman also submitted a second
declaration explaining Continentale had already produced
12,000 pages in discovery, most of which were written in German.
In opposition Sharkh again argued the majority of the
material witnesses were in California. In addition to the medical
personnel who could testify regarding the necessity of LM’s
treatment, Sharkh explained the witnesses who could rebut
Continentale’s claims of alleged fraud on her part were also in
California. Sharkh had learned through discovery that
Continentale had terminated coverage, at least in part, based on
an April 2016 memorandum from GMMI (written in English),
which in turn had been based on information from an anonymous
caller, alleging that Sharkh had established a scheme to “recoup”
$40 for every hour of nursing care billed by a particular agency
and paid by Continentale. That nursing agency and its
employees, who could testify regarding the falsity of the
allegations, were in California. Sharkh also stated in a
declaration that LM had passed away in June 2018 and she
intended to return to California with LV. In a supplemental
opposition filed three weeks later, Sharkh stated she and LV had
returned to California indefinitely and had no intention of
returning to Germany.
Continentale filed a “supplemental reply” containing
information it had recently discovered concerning Sharkh’s
residency since 2016 and suggesting the family’s recent return to
California was mere forum shopping. Through documents filed in
10
Sharkh’s family law proceeding in northern California and
through conversations with Sharkh’s former father-in-law,
Continentale had learned Sharkh had been living in Germany
since May 2017. Further, Sharkh had sought to transfer her
family law case to Germany in March 2017, citing the
convenience of a German forum for the family’s child support and
custody issues.
On October 10, 2018, one day prior to the hearing, Sharkh
filed a declaration in response to Continentale’s supplemental
reply explaining she had left Peru in May 2017 because LM had
developed pneumonia and needed to undergo a medical procedure
that could not be provided in Peru. Sharkh was able to arrange
an ambulance flight to transport LM, but it would take them only
to the United States or Germany. Because she had no way of
paying for medical care in the United States, she chose to take
LM to Germany, where the family stayed for 10 months before
relocating to Spain in March 2018. Sharkh again claimed she
had always intended to return to California and planned to stay
here indefinitely. She stated her tax returns showed her address
in California and she still had a valid California driver’s license.
The trial court granted Continentale and GMMI’s motion
on October 11, 2018. In its brief tentative ruling the court found
Germany was an adequate alternative forum and stated, “For
Plaintiff, who resides in Spain, litigation in Germany is not any
less convenient than litigation in California. [¶] . . . All parties
are outside of California. California has no interest in providing
a forum for disputes between nonresidents involving claims about
which California has no interest.” During argument Sharkh’s
counsel reiterated that Sharkh had moved back to California in
September 2018. The court acknowledged this and stated the
11
tentative had been written prior to receiving that information in
the supplemental declarations. Sharkh’s counsel also
acknowledged Sharkh had lived in Germany for a short time in
2017 and 2018 and “we did not disclose that to defense counsel.”
The court responded, “But that’s very important.” The court later
commented, “She’s been moving around. It doesn’t make sense.”
Without providing any additional explanation or analysis, the
trial court adopted its tentative ruling and granted the motion to
dismiss.7
6. Sharkh’s Motion for Reconsideration
On November 21, 2018 Sharkh filed a motion for
reconsideration pursuant to Code of Civil Procedure section 1008,
arguing her October 10, 2018 declaration had not been considered
by the court and therefore contained new facts. In addition,
Sharkh argued a November 8, 2018 family court order
prohibiting LV from leaving northern California constituted new
information that was unavailable at the time of the court’s ruling.
In a declaration in support of the motion, Sharkh stated she had
left California for Spain on November 6, 2018 to make
arrangements for LM’s burial.8 Sharkh and LV initially intended
to be in Spain for two weeks, but extended their stay due to the
7 The motion was granted by Judge Gerald Rosenberg, who
retired in early 2019, at which point Judge Marc D. Gross
presided over this matter.
8 Although LM had passed away in Spain in June 2018, he
had not yet been laid to rest because his brain had been donated
to a Spanish hospital for research into the rare condition from
which he suffered.
12
ongoing wildfires in northern California. Sharkh stated she
planned to return to California in late December 2018.
Due to a series of continuances Continentale’s opposition to
the motion was not filed until August 2019. Continentale argued
Sharkh had failed to present any new or different facts that could
not have been submitted prior to the court’s ruling. Further,
Continentale noted Sharkh had failed to return to California in
the nine months since filing the motion for reconsideration, but
instead remained in Spain.
In a declaration in support of her reply, Sharkh explained
she had intended to return to California at the end of 2018, but
she discovered LV’s passport had expired. Due to difficulty in
getting consent from LV’s father, she was unable to obtain the
renewed passport until April 2019, at which time she decided to
have LV finish the school year in Spain. She then planned to
return to California in August 2019, but both she and LV had ear
infections and were advised to avoid air travel. As of the date of
her declaration, August 13, 2019, Sharkh stated she had leased a
home in northern California and intended to return here within a
week.
The motion for reconsideration was denied on August 20,
2019. An amended judgment of dismissal was entered on
November 1, 2019.
DISCUSSION
1. Governing Law and Standard of Review
“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
13
tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744,
751 (Stangvik).) The doctrine is codified in Code of Civil
Procedure section 410.30, subdivision (a), which provides, “When
a court upon a motion of a party . . . finds that in the interest of
substantial justice an action should be heard in a forum outside
this state, the court shall stay or dismiss the action in whole or in
part on any conditions that may be just.”
In determining whether to grant a motion based on forum
non conveniens, a court must first determine whether the
alternative forum is a “‘suitable’ place for trial.” (Stangvik,
supra, 54 Cal.3d at p. 751.) If a suitable alternative forum exists,
“the next step is to consider the private interests of the litigants
and the interests of the public” to determine whether the balance
lies in favor of retaining the action in California or requiring that
it be prosecuted in the alternative forum. (Ibid.)
The first question—whether a suitable alternative forum
exists—involves a “nondiscretionary determination” whether the
defendant is subject to jurisdiction in the alternative forum and,
if so, whether the plaintiff's cause of action would be barred in
the alternate forum by a statute of limitations that would not
operate to bar the suit in California. (Chong v. Superior Court
(1997) 58 Cal.App.4th 1032, 1036 (Chong); accord, Guimei v.
General Electric Co. (2009) 172 Cal.App.4th 689, 696 (Guimei).)
If either of those factors would preclude a hearing on the merits,
the alternative forum is not suitable; and the motion to dismiss
or stay is properly denied no matter how inappropriate the forum
may be. (Chong, at p. 1037 [forum is suitable only “if there is
jurisdiction and no statute of limitations bar to hearing the case
on the merits”]; see Stangvik, supra, 54 Cal.3d at p. 752, fn. 3
[“question of a suitable alternative forum depends not on the
14
factors relevant to the convenience of the parties and the
interests of the public, but on whether an action may be
commenced in the alternative jurisdiction and a valid judgment
obtained there against the defendant”]; American Cemwood Corp.
v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 435.)
A forum is suitable if the action can be brought there, even if it
cannot necessarily be won there. (Chong, at pp. 1036-1037;
Guimei, at p. 696.)
Only if a suitable forum exists does the court proceed to the
next step—balancing “the private interests of the litigants and
the interests of the public in retaining the action for trial in
California”—to determine whether the action should be retained
in California or prosecuted in the alternative forum. (Stangvik,
supra, 54 Cal.3d at p. 751.) “The private interest factors are
those that make trial and the enforceability of the ensuing
judgment expeditious and relatively inexpensive, such as 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. The 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.)
This analysis requires a “weighing and balancing.” (National
Football League v. Fireman’s Fund Ins. Co. (2013)
216 Cal.App.4th 902, 918.) “A case-by-case examination of the
parties, their dispute and the relationship of each to the state of
California is the heart of the required analysis.” (Id. at p. 921.)
“The private and public interest factors must be applied flexibly,
15
without giving undue emphasis to any one element.” (Stangvik,
at p. 753; accord, Guimei, supra, 172 Cal.App.4th at p. 701 [“no
one factor is determinative”].)
The trial court’s determination on the existence of a
suitable alternate forum, when based on undisputed facts, is a
legal question subject to de novo review. (Guimei, supra,
172 Cal.App.4th at p. 696; Roulier v. Cannondale (2002)
101 Cal.App.4th 1180, 1186.) The trial court’s balancing of the
public and private interests, in contrast, is a highly discretionary
evaluation that is accorded “substantial deference” on appeal and
is subject to reversal only for abuse of discretion. (Chong, supra,
58 Cal.App.4th at p. 1037; Morris v. AGFA Corp. (2006)
144 Cal.App.4th 1452, 1464.) We will interfere with a trial
court’s exercise of that discretion only “‘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.’” (Guimei, at p. 696.)
2. Germany Is a Suitable Alternative Forum
Sharkh does not challenge the trial court’s determination
that Continentale and GMMI would be subject to jurisdiction in
Germany on the claims alleged in this case. Continentale is a
German company doing business in Germany, and GMMI has
consented to German jurisdiction regarding Sharkh’s claims.
(See Morris v. AGFA Corp., supra, 144 Cal.App.4th at p. 1464
[defendants’ consent to jurisdiction in Texas supported finding
Texas was suitable alternative forum].) Nor does Sharkh argue
Germany lacks an independent judiciary capable of rendering a
just outcome based on due process of law. (See Boaz v. Boyle &
Co. (1995) 40 Cal.App.4th 700, 711 [“a forum is suitable if . . .
adjudication in the alternative forum is by an independent
16
judiciary applying what American courts regard, generally, as
due process of law”].) As for the statute of limitations, Sharkh
recognizes it did not expire until December 31, 2019—more than
a year after the forum non conveniens ruling and two months
after the amended judgment. In addition, Continentale’s German
attorney testified, citing German law, it was possible this action
would toll the statute of limitations in Germany. Sharkh has not
contested the accuracy of that conclusion. Accordingly, Germany
is a suitable alternative forum for this action.9 (Chong, supra,
58 Cal.App.4th at p. 1037.)
Sharkh’s argument to the contrary relies on the assertion it
would be cost-prohibitive to bring the action in Germany because
she would have to pay fees and costs upon the commencement of
the action, may not be able to find an attorney to work on a
contingency basis, may be liable for the defendants’ attorney fees
if the action were unsuccessful and may not qualify for legal aid.
While these factors may make litigating in Germany more
expensive, less convenient and ultimately impossible for Sharkh,
they do not support a finding Germany is an unsuitable
alternative forum as a matter of law. (See Guimei, supra,
172 Cal.App.4th at p. 696 [“[t]hat the law is less favorable to the
9 On remand, if the trial court is otherwise inclined to grant
defendant’s motion, the court should stay, rather than dismiss
the action pending suit in Germany to verify Germany in fact is a
suitable forum and Sharkh’s claims are not barred by the
governing limitations periods. (See Investors Equity Life Holding
Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1382-1383 [because
it relied on defendants’ representations concerning consent to
personal jurisdiction in another forum and agreement to waive a
statute of limitations defense, trial court should have stayed,
rather than dismissed, the California proceeding].)
17
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”]; Boaz v. Boyle & Co., supra,
40 Cal.App.4th at p. 711 [“[t]he fact that a plaintiff will be
disadvantaged by the law of that jurisdiction, or that the plaintiff
will probably or even certainly lose, does not render the forum
‘unsuitable’ in this analysis”].)
3. The Trial Court Abused Its Discretion by Failing To
Weigh the Public and Private Interests
The trial court’s ruling relied solely on its finding that none
of the parties resided in California at the time of the hearing and,
therefore, California had no interest in the dispute. While
location of the parties at the time of the litigation is certainly
relevant to the court’s analysis, it cannot be the exclusive factor
on which a court relies. (See Shiley Inc. v. Superior Court (1992)
4 Cal.App.4th 126, 135 [trial court’s reliance on choice of forum
and defendant’s residence in that forum without weighing other
factors resulted in “‘giving undue emphasis to any one element’”];
see also Stangvik, supra, 54 Cal.3d at p. 753, fn. 4 [“An undue
emphasis on a single factor is especially threatening to a
balanced analysis because some of the matters to be weighed will
by their nature point to a grant or denial of the motion. For
example, the jurisdiction’s interest in deterring future wrongful
conduct of the defendant will usually favor retention of the action
if the defendant is a resident of the forum, whereas the court
congestion factor will usually weigh in favor of trial in the
alternate jurisdiction”].)
Further, the court’s finding California had no interest in
the dispute was unreasonable given the facts of this case. While
the trial court found Sharkh resided in Europe at the time of the
18
hearing, it is undisputed Sharkh had lived continuously in
California from 2007 to mid-2016 and LM and LV had lived
exclusively in California from the time of their births in 2011 and
2013, respectively, until mid-2016. Accordingly, until the time it
cancelled the family’s insurance coverage in 2016, Continentale
performed its obligations under the policy in California by
evaluating coverage for expenses incurred in California and
paying claims to California medical providers. The wrongful
actions and resulting injuries alleged in the first amended
complaint all took place while the family resided in California.
These circumstances give California a definite interest in the
litigation, even if, like any other single factor, that interest is not
outcome-determinative. (See Stangvik, supra, 54 Cal.3d at
p. 759, fn. 12 [“the locus of the alleged culpable conduct is a
consideration in the forum non conveniens analysis”]; Roman v.
Liberty University, Inc. (2008) 162 Cal.App.4th 670, 684 [“‘with
respect to regulating or affecting conduct within its borders, the
place of the wrong has the predominant interest’”]; Ford Motor
Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604,
612 [California had “a significant relationship to the underlying
facts” in insurance coverage action where affirmative defense
“depends entirely on events that happened in California” and
relevant insurance policies “pertain expressly to risks located in
California”].)
California’s interest in this litigation is even more
pronounced given the unique nature of insurance contracts. The
Supreme Court has repeatedly recognized that “‘[t]he field of
insurance so greatly affects the public interest that the industry
is viewed as a “quasi-public” business, in which the special
relationship between the insurers and insureds requires special
19
considerations.’” (Pitzer College v. Indian Harbor Ins. Co. (2019)
8 Cal.5th 93, 106; accord, Calfarm Ins. Co. v. Deukmejian (1989)
48 Cal.3d 805, 830 [“‘It is no longer open to question that the
business of insurance is affected with a public interest. . . .
Neither the company nor a policyholder has the inviolate rights
that characterize private contracts. The contract of the
policyholder is subject to the reasonable exercise of the state’s
police power’”].)
California’s public interest in contracts of insurance
includes “assuring that injuries and losses suffered in the state
are afforded insurance coverage” and “encouraging fair claims
handling practices and holding insurers answerable for bad faith
practices.” (Southeastern Express Systems v. Southern Guaranty
Ins. Co. (1995) 34 Cal.App.4th 1, 7.) Those interests are not
vitiated simply because the insured or insurance company is not
a California resident. (See id. at p. 7 [finding, for personal
jurisdiction purposes, California had a “significant interest” in
insurance coverage litigation despite both plaintiff and defendant
being residents of Georgia where injuries were sustained in
California]; People v. United National Life Ins. Co. (1967)
66 Cal.2d 577, 593 [California had interest in regulating out-of-
state insurance company that paid and denied claims in
California because “California might be called upon to provide
assistance for the persons within its borders who were intended
to be financially assisted by the benefits under the policies”];
Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 206-
207 [California had interest in regulating automobile liability
insurance sold in Mexico to residents of Mexico because “the risks
to the insured were those arising from driving in the United
States. This also constitutes a sufficient nexus between the
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insurance transactions [the insurance broker] facilitated and the
protection of the California public”].)
In the present case, where Continentale issued insurance
policies to three California residents, evaluated claims arising in
California, paid claims to California providers and terminated
coverage while the insureds resided in California, the
“substantial interest of California in these transactions is
obvious.” (People v. United National Life Ins. Co., supra,
66 Cal.2d at p. 593.) However, as discussed, California’s interest
in the dispute is not dispositive. On remand, the trial court must
weigh that interest against Germany’s interest, if any, in hearing
the case (see Stangvik, supra, 54 Cal.3d at p. 18 [court must
“weigh[ ] the competing interests of California and the alternate
jurisdiction in the litigation”]) and evaluate those interests
within the context of the other relevant private and public
interest factors.10 In doing so, the court should consider Sharkh’s
current residence and how it affects the convenience of California
as a forum.
10 Because we remand for the trial court to reconsider the
forum non conveniens motion, we need not reach Sharkh’s
argument the court erred in denying her motion for
reconsideration.
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DISPOSITION
The amended judgment and order granting the renewed
motion for forum non conveniens are reversed, and the cause
remanded for further proceedings not inconsistent with this
opinion. Sharkh is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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