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Diaz-Barba v. Superior Court (Wolfgang Hahn)

California Court of Appeals, Fourth District, First Division

April 27, 2015

ALEJANDRO DIAZ-BARBA et al., Petitioner,
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent WOLFGANG HAHN et al., Real Parties in Interest.

ORIGINAL PROCEEDINGS in mandate. San Diego County Super. Ct. No. 37-2009-00083805-CU- BT-CTL Joel M. Pressman, Judge.

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Niddrie, Fish & Addams and David A. Niddrie for Petitioners.

No appearance for Respondent.

Cooley, Ali M.M. Mojdehi, Janet D. Gertz and Allison M. Rego for Real Parties in Interest.



In Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177 [125 Cal.Rptr.3d 242] (Hahn I), this court affirmed an order, issued under the forum non conveniens doctrine, staying an action against residents of California for tortious interference with contract and related claims for the sale of an interest in a Mexican business. We determined that petitioners (hereafter defendants) met their burden of proving Mexico was a suitable alternative forum, based on their stipulations to submit to the jurisdiction of Mexican courts and waive applicable statutes of limitation, and on balance the private and public interests favored Mexico as the more convenient forum. (Id. at pp. 1192, 1198-1199.) The trial court retained the power to verify that real parties (hereafter plaintiffs) had a remedy in Mexico, and we acknowledged that "[i]f, for any reason plaintiffs cannot bring their action in Mexico, they may return to California and request that the court lift the stay." (Id. at p. 1192.)

In this petition, the issue is whether the court erred by granting plaintiffs' motion to lift the stay on the ground Mexican courts dismissed two separate

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suits they filed in that country, making it an unavailable alternate forum. Defendants contend the ruling is erroneous because the evidence shows plaintiffs did not prosecute their action in Mexico in good faith. Among other things, defendants claim they unreasonably delayed filing suit in Mexico and purposely drafted deficient complaints to ensure their rejection. Additionally, defendants contend the court prejudicially erred by denying their request to cross-examine the independent expert it appointed on Mexican law. We conclude defendants' contentions lack merit, and thus we deny the petition.


A. The Parties

Plaintiffs are Wolfgang Hahn, a German citizen who resides in Switzerland and Mexico, and his company, Nikita II, S.A. (Nikita), a Luzembourg corporation. Nikita is the majority owner of Impulsora de Chamela, SA de CV (Impulsora), a Mexican company with property in Chamela, State of Jalisco, Mexico. Hahn intended to develop the property into an exclusive resort called La Tambora.

Defendants are Alejandro Diaz-Barba (Diaz); his mother, Martha Barba De La Torre (Barba); and their friends, brothers Michael Kocherga, Nicholas Kocherga and Alexander Kocherga (collectively, the Kochergas). Diaz and Barba are Mexican citizens who reside in San Diego County and do business here. Two of the Kochergas were born in Mexico and one of them was born in Spain. The Kochergas reside in San Diego County.[2]

B. Villa Vista Hermosa/Underlying Bankruptcy Proceeding

In 2004, Diaz and Barba purchased property in Mexico called Villa Vista Hermosa, which is the childhood home of the Kochergas, along with a fourth brother, Eugenio Kocherga, who is not a party to this litigation.[3] Eugenio Kocherga was a minority shareholder in Impulsora.

Villa Vista Hermosa had been owned by Jerry and Donna Icenhower, and during their bankruptcy proceeding they purported to transfer it to a sham company, Howell & Gardner Investors, Inc. (H&G), which sold it to Diaz and Barba. In 2005, the bankruptcy trustee added Diaz and Barba as defendants in a fraudulent conveyance action he had filed against the

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Icenhowers and H&G. Subsequently, a Hahn entity negotiated with the trustee to purchase the bankruptcy estate's assets, including an assignment of the fraudulent conveyance action. In 2008, the bankruptcy court found the Icenhowers' transfer of Villa Vista Hermosa to H&G was fraudulent, the property was an asset of the bankruptcy estate, and Diaz and Barba, who had knowledge of the bankruptcy proceeding, lacked good faith and exercised insufficient due diligence in their purchase. The court ordered Diaz and Barba to convey the property to the bankruptcy estate. (Kismet Acquistion, LLC v. Icenhower (In re Icenhower) (9th Cir. 2014) 757 F.3d 1044, 1047, 1049.)

C. Complaint Filed in San Diego County Superior Court

In July 2009, plaintiffs filed a first amended complaint (complaint) against defendants for tortious interference with contract, and intentional and negligent interference with prospective economic advantage. The action arises from defendants' conduct during the pendency of the fraudulent conveyance action against Diaz and Barba in bankruptcy court.

The complaint alleges as follows: Hahn sought to purchase Eugenio Kocherga's minority interest in Impulsora to attract investors in La Tambora. In 2006, they began negotiations and, in 2007, they reached an agreement for the sale of his shares for $2.5 million. On February 6, 2007, the deal was memorialized in a letter agreement signed by Eugenio Kocherga. Defendants knew of the letter agreement.

Diaz and Barba pressured Hahn to dismiss them from the fraudulent conveyance action in the bankruptcy proceeding. Having no success, they enlisted the Kochergas to assist them, as they knew the Kochergas had a "deep emotional attachment" to Villa Vista Hermosa. Diaz and Barba promised the Kochergas an opportunity to purchase an interest in the property, contingent on their success in getting Hahn to dismiss them from the fraud action. After the letter agreement was signed, defendants influenced Eugenio Kocherga not to honor it. He reneged on the deal, after which he used his minority interest in Impulsora to harass Hahn and derail the La Tambora project.

The breach of the letter agreement forced plaintiffs to reevaluate La Tambora's feasibility because they lost financing. Plaintiffs had to put the project on hold, which caused a substantial increase in carrying costs and expenses, and deprived them of anticipated operating income and profits. Additionally, defendants' conduct harmed plaintiffs' business reputation and destroyed goodwill.

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D. Forum Non Conveniens Motions/Hahn I

Defendants brought and/or joined in motions for the dismissal or stay of the action on the ground of forum non conveniens. They stipulated to submit to the jurisdiction of the courts in Mexico, and to waive the applicable statute of limitations in Mexico. In support of their argument Mexico was the superior forum, they submitted declarations by three Mexican attorneys. Plaintiffs submitted no countervailing evidence.

The court granted the motions and issued an order staying the action, and in Hahn I we affirmed the ruling. (Hahn I, supra, 194 Cal.App.4th at p. 1199.) We determined that as a matter of law, Mexico was a suitable alternative forum, meaning it would have jurisdiction over defendants and an action would not be barred by the statute of limitations. (Id. at pp. 1190-1192.) We also determined the court did not abuse its discretion by finding that on balance, public and private interests favored litigation in Mexico. Among other reasons, we explained "all of the effect, harm, and damages caused by defendants' alleged conduct occurred in Mexico and would require proof through third party witnesses in Mexico." (Id. at p. 1196.) We explained that "by staying the action rather than dismissing it, the court retains the power to verify both that the Mexico courts accept jurisdiction of the action and that defendants abide by their stipulations. If, for any reason plaintiffs cannot bring their action in Mexico, they may return to California and request that the court lift the stay." (Id. at p. 1192.)

E. First Motion to Lift Stay

Hahn I, supra, 194 Cal.App.4th 1177, was filed on April 29, 2011. In March 2012, plaintiffs moved to lift the stay based on defendants' conduct. By this time, a new judge was handling the matter. Plaintiffs argued Diaz and Barba had irreparably chilled their "ability to receive a fair trial in Mexico in connection with this action, due to their acts of intimidation of witnesses and harassment of [p]laintiffs' Mexican civil counsel through various improper means, including... gross misuse of criminal process against such persons in Mexico."

Plaintiffs advised the court that Diaz and Barba had filed two criminal actions, and Eugenio Kocherga had filed a third criminal action, against Hahn and related persons and entities, which arose from the Icenhower bankruptcy and sought to collaterally attack the bankruptcy court's order for transfer of Villa Vista Hermosa. The first action was closed, but plaintiffs argued defendants had used the second and third actions "to make it more burdensome and difficult for [them] to bring this action in Mexico." Plaintiffs claimed that ordinarily, under Mexican criminal procedure, "no arrest warrant

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may be issued unless and until the accused has the right to be heard, " but "the judge issued warrants for... Hahn's and the other accused['s] arrests in connection with the [t]hird [c]riminal [p]roceeding."

Plaintiffs also advised that one of their attorneys in Guadalajara received a call from Marco Antonio Del Toro Carazo (Del Toro), an attorney for Diaz, Barba, and Eugenio Kocherga in the criminal actions. Del Toro requested a meeting, during which he "used the threat of execution of [arrest] warrants to attempt to force concessions from... Hahn." Del Toro said Hahn, his attorneys, and others would be arrested unless Hahn agreed to dismiss this action; pay Eugenio Kocherga for his shares in Impulsora; pay sanctions of approximately $2 million, which were awarded against Diaz and Barba for their contempt of the bankruptcy court; and transfer Villa Vista Hermosa to Diaz and Barba. The motion states: "Del Toro also threatened that, unless... Hahn conceded to [defendants'] demands, he would cause... Hahn to be referred by the Mexican authorities to Interpol for placement on a fugitive/criminal watch list, which would subject him to extradition to Mexico from virtually anywhere in the world and thereby restrict his ability to travel."

The motion also stated Hahn rejected defendants' demands, and as a result as of "January 2011 [Hahn] has been... subject to arrest in Mexico and is unable to travel because of concern[s] that he might be subject to extradition to Mexico...." Further, "several of... Hahn's longstanding corporate counsel in Mexico City... are subject to arrest in Mexico and are currently living in exile, " and potential witnesses in this action "are currently subject to arrest in Mexico."

In their opposition, defendants argued the court should not lift the stay because plaintiffs had not attempted to file their action in Mexico, in violation of Hahn I. Defendants claimed that under Mexican law, "parallel criminal proceedings are very common, " and the existence of an arrest warrant against ...

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