factors did that failure to balance the factors properly constitute reversible error this this analysis has to start with the overlay of the  the fact that the standard to be applied here is that the plaintiffs choice of form is rarely to be disturbed especially in the circumstances where the plaintiff has filed in their home jurisdiction the plaintiff is entitle to great deference when the plaintiff brings the action in their home jurisdiction and that's the case in this situation the defendant has a very high burden to overcome in that situation of the defendant has to establish that there is such a press vaccination of the defendant to be out of proportion with the plaintiff's convenience which has these slight or nonexistent and that was just not present in the present case the question that the court first looks at involving these factors is evaluating the case that was filed and in this situation the court was looking at a different case it seems than what was filed in the complaint the complaint that was filed was an action based on fraudulent statements made by an agent of tokyo marine to human detail to induce her to come to the united states and continue her medical treatment to the point where she would be determined to be and american terms of permanent stationery at which point they could determine what the total value of her claim was she did that she listened to the insurance company she believed what they said and she came back to the united states in july of one thousand nine hundred six after she did that there were then questions about whether they were going to pay her or not subsequently raised and while they paid they started paying slowly they didn't have result of the representations that were made by the insurance company based on their obligation to pay her as a third party when they told her to go to the united states we will pay for your medical care there that's the contract that we're at the point time in which they feel they stopped paying her and at that point in two thousand and two when she first learned that they had no intention of paying her despite the representations between the time of nine hundred ninety seven in two thousand evaluating what he said is well all that's happening is the plaintiff is trying to get her medical expenses back that she incurred when she went to the united states completely missed the issue of the fact that there was a fraud cl and that there was a preacher contract claim all of which related to things that occurred when she was in the united states to her in the united states when the court balanced the factors what they did was they looked at the judge looked at the private and public interest factors and framed those in light of what was presented to him by the defendant and didn't evaluate the plaintiff's claims  lawsuit in the private interest factors that was where the first real problem occurred when the judge looked at the residence of the parties or the witnesses as a starting point what he did was time what is the purpose of the testimony of any of those witnesses while there are witnesses related to the car accident who are relevant there are basically three witnesses the two drivers of the cars and appellant in this case those were the only three witnesses for those actions that were the to that accident that was identified in any of the documentary evidence you think that it should be removed so that the court could determine what these witnesses case or just reversed in general there is some evidence for there is some case law that has the court has that you didn't properly balance in the eleventh district i believe it was  that there was just not enough evidence presented to the court needed to properly balance the case to balance all of the evidence presented to the court so that in that situation there are situations where it has been remanded for further consideration by the court if there were that many witnesses who were material that it might be swayed to some agree i'm sure it's got its favor but that i've never seen a case where you have so many attorneys what it was that those attorneys would be testifying to that would even be relevant in addition the fact that when you look at their designation of eleven representatives from the insurance company from claims adjusters t managers to assistant managers there were three specific people from the insurance company who had communications with the pallet that's all yet they identified eleven different people there's just no relevance or at testify to right well that's not evidence there was no evidence presented right that the district court relied on their statement that they had thirty two the witnesses yes ok the district where did rely on that in fact there was evidence presented by the as to the witnesses that she was going to present which included a number of people here in the united states some of whom were specifically identified but were specify who would perform those surgeries they were necessarily surgeries conducted by another doctor it was another discipline so they clearly had to be conducted where they had surgery where the appellant's breast cancer that she suffered in addition she had  surgery for her job those are surgeries that would not be done by either a plastic surgeon or an orthopedic surgeon so clearly those are additional witnesses that would be relevant to the situation with respect to the appellants testimony  they to be proven in this that her subsequent medical expenses were consequence of the automobile accident well there are a couple of things number one there is the issue of how the injuries related to the that related to the car and lying whore accident but the evidence with respect to her damages i would imagine with respect to future medical needs would be expert testimony there would be  your honor i quite frankly i don't know how the court concluded that other than the statement that there were basically four categories of documents that were in the statement provided by the defense counsel which included  underlying filed related to the car accident the courts file the medical records and again the attorney's files how any of that related to this action i quite frankly don't get  it this is about the frog claim this is about the breach of contract it's not about wealthy chinese had their file in the underlying action that was resolved so that that is not related to the situation and in fact the court made an error in what it stated in its order when it said all of the events prior to august of one nine hundred ninety seven took place in japan were in fact that's not correct thirteen months of that period of time occurred in the united states all of that medical treatment during that thirteen months time all the additional surgeries that was in the united states that was not in japan so those records of that period of time sixty percent of the period between the car accident and august one thousand nine hundred seventy eight that the court cites took place in the united states so all of those records are here in the united states not in japan i guess you'd still have to show some circumstances of what happened that the in order to show that these subsequent andrews and the go expenses came from that right that's right you would show she had a broken leg or back or whatever it was that's right well that the from from the japanese experts there it wouldn't need to be from japanese experts it would need to be presented from you would have some course if you witness testimony you would also have some testimony from certain experts perhaps accident reconstructionist for experts if necessary as to the causation issue if causation were denied continue they paid directly to hospital when she was in japan when she became the united states part of the promises that were made to her involved her finding her own physicians to treat her in the united states that was incumbent on her she came the united states she found the doctors necessary to treat her she paid them out of pocket and then was reimbursed from the insurance company they didn't pay directly and those payments stopped in august of one thousand nine hundred seventy when in addition when she received payments  payments that she received while she was in japan and were specifically identified as to what they were for but when she received payments here in the united states the relaunch sums that were received not identified nothing was specified in terms of whether it was payment for  her injuries payment for future medical payment for the medical expenses she had already incurred solutions no way for her to determine what those numbers were for what the dollars were for its japanese law applicable in this case or  this in japanese in the japanese insurance policy there are two different insurance policies there's a comprehensive underlying policy that is capped by japanese law and then there is the voluntary policy that is essentially an excess policy and the matters relating to the comprehensive policy were resolved in the japanese litigation and determined by that court it was matters relating to the voluntary policy that were coming over to the united states li i like to reserve my remaining time for well thank you dispute about whether or not japan's an adequate alternative for him in that the focus of the appellant's appeal is that there was not a proper balancing of the public and private factors and we contend that there was the first thing the point they argue was that there was no consideration whatsoever given by the court in its decision about you ito's residents for citizenship in california yet the court did  since sixty two and that she's a california resident since seventy six it discusses the fact that she filed her suit in the l a superior court at the next page it talks about the fact that the courts give substantial deference to the plaintiffs choice to form especially when they're a u s citizen so that's a pretty crucial in a case that is that is an important factor to be sure but it's not it's not the end all of the i and now to me that seems to be the question is this so question because if they were cosily related then your client is obligated to pay and that prior litigation has nothing to do with that because we're insurance company reasonable and how do you determine that you look at the situation today that they're not paying enough for the given accident in this case the tokyo marine assured mr only suga they didn't insure you  itoshi was a passenger in his car and they were basically what we would call making an advance under their policy they behave differently in japan and we'd say the insurance companies do in america they were making an advance against the ultimate liability of the insured mr only suga to the extent that they thought that there was no liability and that the damages recently unnecessarily related to that liability but at a certain point they started to dispute that that's this cut in tokyo district court seeking damages from mr only token marines insured which is to say to get whatever else is reasonable and necessary damages arising out of that accident and then that case contract then there's bad faith based upon the insurance contract that is talking reason contract mr only suga then she asserts that there's a no vacation when she came here and actually it's important to note in her complaint she alleges that the statements that were made to her to stay in the u s and not keep going back and forth like she was doing that those were made to her by i can't remember the name of the gentleman made to her in japan before she came circus created by this statement and her and her decision to stay in the u s and then she tries bad faith on that no haitian contract and then she has a fraud plain and then they basically  in professions code section seven thousand two hundred claim for restitution and injunction that type of stuff so all of these tie back to the insurance contract all of them tie back to mr only zucker's liability that's that's her that's her connection to tokyo marina's mr own he still has liability to her and so now she's trying to so this lawsuit basically is really seeking to retry that personal injury lawsuit to say even though there was a full and final settlement in that prior lawsuit ing that this is going to go ahead and california that's right the court did acknowledge that that was put in at the instance the museo in the courts basically this if you read the court statements the statement of comedy basically we're not going to tell the california courts what they can or cannot do just we're settling this case ok and tokyo marine is released in that settlement with regard to all damages arising out of the accident again i took a marine was an intervenor in that case and so all of this all of the damages because of medical care etc those are all wrapped up in that settlement and that's why all that evidence is so important that's why it's important to know what are the what was the understanding of all the attorneys there are some you know statements on the record there's apparently negotiations off the record as to what's going to be settled and how much is going to be paid at which point there was a payment an additional twenty eight million yen in terms of resolving that case then and there so well doesn't seem relieved that this was a final was there is the only thing that's like open is whether she can sue tokio marine for bad faith ok i think that's how i read the settlement they're leaving open you know we're selling the claim everything that happened on the car accident over and done with twenty million more young and we're over and done with and what's left then is you can still if you can figure out how to do it you can sue talking marine for bad faith you know the problems are that in  i don't view it that way from my perspective this is just the struggling to get things translated to understand what went on to figure out what's the factual background of the case as is done let's say in a rule twenty six disclosure and so our position is that this is an adequate disclosure for these purposes and again in a bad faith case you know the just the focus of it is is the conduct of the defendant insurance company reasonable and that contact is what's done by its employees as they handle a claim and those people who handle this claim are all in japan all their documentation is in this is going to involve an inquiry about reasonableness that's going to involve looking at all of this documentation talking to all of these witnesses and looking at they're all going to be speaking japanese that's going to be translated is that your  all that there was was a motion to dismiss report on convenience without any answer having been filed and without even an attorney affidavit identifying witnesses or a rule twenty six disclosure to indicate that in the plaintiff's position  was we're just going to put on our three bills of lading and we didn't get the goods at the other end of the ocean carriage and therefore we have just a prima fashion liability this type of case that you need always bringing is just nowhere near contention is that settled everything except for possible bad the then we have all of the things that occurred that would have to be shown here in california  as to the injuries and so forth but are we just talking about the settlement and whether or not that forecloses these other aspects and with regard to forecloses as you say it was further action in california we certainly take that position but the appellant doesn't even in oral argument today they're talking about injuries caused by that accident that that they want to additional damages for as a result of that auto accident i think that's one of the questions that they want to let again yes that's how i read their complaint that their witnesses would seem to be the united states witnesses who tre may hospital there's also the doctors who treated her initially for the first forty days that would you know me is to the hospital and you know just from experience and personal injury litigation most of the medical correct yeah but the amount they paid is the total for all the medical care japan and the u s all the loss of earnings for the entire time relevant really it's nice and that they were continuing to advance payment as long as they believe that they were reasonable and necessary medical expenses related to  in that case there was an issue about copyright in the japanese translation of the bible and planes of the sort of they were they had the copyright to that they were entitled to copyright damages and that suit to be tried in california but the court pointed out the defense is the defendants raise a defense that they own the copyright and all of the other claims then fell in line with that if they own the copyright there would be no specific performance there would be no accounting would be no fraud there be no breach of produce there be no conversion claim and just like that in this case everything comes out of these obligations come out of this japanese contract insurance a liability insurance contract and all the obligations come out of this auto accident which in which he was either was injured and all of those since all of those were resolved in the japanese action or else relate to japanese documents japanese witnesses that the motion for foreign on convenience was probably granted you just a couple points i'd like to make your honors first of all with respect to the statement that was made that the representations were made to ms ito in japan in fact when you look at the record what happened was when she just before she left for the united states in july one thousand nine hundred six she was told that the insurance company was contemplating having her stay in the united states but there was no statement that she should stay in the united states it was after she returned to the united states that she would see the call from tokyo marines representatives saying yes to stay in the united states we decided we want you to stay there find your own doctors and do what's necessary to take care of yourself those representations were made to her when she was in the united states i was not all settled as part of the settlement settlement action related to the comprehensive policy only that was all it was about and that's why there was the reference in the articles of settlement that talked about this case and they were talking specifically about the comprehensive liability policy and that it did not resolve all of those matters that's something that would be addressed by the district court once the case was tried it's not an issue for the foreign non convenience motion formed on convenience motion is determining what interests they are the court is to protect in terms of the different parties in this situation they are protecting an american citizens lockman case the court specifically said that there's no local interest in protecting your copyright that's for your financial interests in this situation there is a very clear local interest which is protecting the rights of american citizens who are defrauded in the united states by foreign companies especially in a situation where here what they've done is by defrauding her they've basically taken all of her resources that she has spent now on all of her medical bills that may ultimately ultimately mean that the state becomes liable for her at some point when she can no longer pay her bills the state the united states clearly has an interest in this situation and in protecting  american citizen with respect to the disclosure that was referenced in piper it's true that there is no more disclosure necessary but when you only make a disclosure about a number of people and not what they're going to testify about it doesn't give the court the ability to evaluate properly what's going to happen in the trial in which witnesses are relevant if you make that limited disclosure you take your chances that either the court is not going to properly evaluate the situation as occurred here or that they're going to say we don't know what your witnesses are about so we're not going to accept this so that doesn't save the situation thank you