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Fox Factory, Inc. v. Superior Court (Peter Isherwood)

California Court of Appeals, Sixth District

April 27, 2017

FOX FACTORY, INC., Petitioner,

         Santa Clara County Superior Court, No. 1-13-CV-245098, Honorable Beth McGowen Judge

          Counsel for Petitioner: FOX FACTORY, INC. Paul J. Killion, Duane Morris

          Counsel for Respondent: THE SUPERIOR COURT OF SANTA CLARA COUNTY “No Appearance for Respondent”

          Counsel for Real Party in Interest: PETER ISHERWOOD, Law Office of Gary L. Simms, Gary L. Simms, Rouda, Feder, Tiejen & McGuinn, Cynthia McGuinn

          ELIA, J.

         Petitioner Fox Factory, Inc., doing business as Fox Racing Shox (Fox), is the defendant in an action for personal injuries brought in Santa Clara County by plaintiff and real party in interest Peter Isherwood. Fox moved to dismiss or stay plaintiff's lawsuit under the doctrine of forum non conveniens, but the superior court denied the motion, citing authority requiring California to be a “seriously inconvenient” forum for the motion to succeed. Fox seeks writ review, contending that the court applied the wrong legal standard in denying the motion. We agree. Accordingly, we will grant the petition and direct the superior court to reconsider Fox's motion under the proper standard.


         Plaintiff Isherwood is a Canadian citizen and resident of British Columbia. Fox, a California corporation, manufactures bicycle parts, including front fork racing shocks. On April 24, 2011, plaintiff was mountain biking downhill in British Columbia on a full suspension mountain bike purchased from Oak Bay Bikes, a retail bicycle shop in British Columbia. The mountain bike was assembled with specialized component parts selected by plaintiff from various manufacturers, including a frame manufactured by Specialized Bicycle Components, Inc. (Specialized), a California corporation; an adapter made by Full Speed Ahead, Inc., a Washington corporation; a headset made by King Cycle Group, Inc., (King), an Oregon corporation;[1] and Fox Vanilla 36 RC forks which “a lot of professionals rode.” According to plaintiff's first amended complaint, the steerer tube used in the Fox racing shocks broke as plaintiff landed a jump. Plaintiff was thrown forward, resulting in a spinal cord injury.

         Plaintiff filed this action on April 22, 2013, alleging negligence, strict products liability, breach of the implied warranty of merchantability, and breach of the implied warranty for a particular purpose. Tamara Jayne Bickerton, who later became plaintiff's wife, [2] also alleged loss of consortium, but she subsequently obtained dismissal of her claim with prejudice. In addition to Fox, plaintiff named Specialized, King, and Full Speed Ahead.

         The following day, April 23, 2013, plaintiff filed another court action in Vancouver, British Columbia, naming as defendants SNC Cycles Ltd. (SNC Cycles) and three Doe corporations, as well as three individuals as John Doe defendants. In this pleading plaintiff alleged that the identities of the corporate and individual Doe defendants were unknown to him, even though the allegations were the same as those in the California action filed one day earlier. He also alleged that SNC Cycles was the owner and operator of Oak Bay Bicycles. As in the California action, plaintiff claimed that the negligence of these defendants was responsible for the April 24, 2011 accident that had caused his injuries.

         The caption of the British Columbia pleading named “Peter Dilwyn Iserwood” as plaintiff. According to Fox, the misspelling of plaintiff's name, together with the intentional withholding of the defendants' true names, precluded discovery of this lawsuit despite “multiple searches” of the dockets of the Vancouver courts. In addition, plaintiff had testified in his October 2014 deposition that he had never been a plaintiff “in a lawsuit other than this one.” He also answered “no” to an interrogatory question about whether, in the past 10 years, he had “filed an action or made a written claim or demand for compensation for [his] personal injuries.”

         Full Speed Ahead obtained summary judgment in the California action on December 18, 2014. Specialized and King likewise obtained summary judgment on February 19, 2016, leaving only Fox as a defendant in this case.

         On March 1, 2016, Fox moved to dismiss or, in the alternative, stay all further proceedings in the California case on the ground of forum non conveniens. Citing Code of Civil Procedure section 410.30, subdivision (a), [3] and section 418.10, subdivision (a)(2), Fox argued that British Columbia, where the Canadian case was ongoing, was a suitable forum because plaintiff was a British Columbia resident, the accident took place in British Columbia, and all relevant evidence, medical personnel, and percipient witnesses were located there. Fox believed it was at an unfair disadvantage because it had “no way to compel the appearance at trial of any of the crucial Canadian witnesses, ” whereas plaintiff would be able to obtain the cooperation of his most favorable witnesses. Furthermore, Oak Bay Bikes, the British Columbia retailer, was a defendant in the Canadian action. The two cases should be tried together, Fox argued, to prevent piecemeal litigation, assure plaintiff a full recovery, and ensure the participation of Oak Bay Bikes, which was potentially liable. Finally, Fox argued that public interests favored sending this case-which could result in a lengthy, technically complex trial-to Canada, to avoid the further congestion of California's already “overburdened” courts by a plaintiff with no connection to this state. Fox stipulated that it would subject itself to jurisdiction in British Columbia.

         Plaintiff responded that Fox's motion was precluded as a matter of law because it had already taken advantage of California's legal process by conducting discovery in the case. Plaintiff did not dispute that British Columbia was a suitable forum, but he maintained that California was “equally suitable.” In his view, the private and public ...

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