Filed 3/5/21 United States Aviation Underwriters, Inc. v. Apical Industries, Inc. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

UNITED STATES AVIATION 

UNDERWRITERS, INC., 

Plaintiff and Appellant,

v.

APICAL INDUSTRIES, INC.,

Defendant and Respondent.

 D076860

 (Super. Ct. No. 

 37-2018-00057420-CU-NP-NC)

APPEAL from an order of the Superior Court of San Diego County, 

Jacqueline M. Stern, Judge. Affirmed.

Cunningham Swain, Steven D. Sanfelippo, Michael J. Terhar and 

Jonathan E. Hembree for Plaintiff and Appellant. 

Michaelis Montanari & Johnson, Garry L. Montanari and Wesley S. 

Wenig for Defendant and Respondent. 

Plaintiff and appellant United States Aviation Underwriters, Inc. 

individually and on behalf of United States Aircraft Insurance Group 

(Underwriters) appeals from an order entered after the trial court granted 

the motion of Apical Industries, Inc, (Apical) to stay or dismiss Underwriters’ 

lawsuit on forum non conveniens grounds, and stayed the action pending 
2

completion of another proceeding in New York. Underwriters contends the 

court abused its discretion in its ruling; that it misapplied the law and failed 

to consider all of the relevant public and private interest factors necessary to 

assess whether the action should remain in California. It further contends 

that no reasonable court could have weighed the relevant factors in favor of 

staying the case, and the cases relied upon by Apical do not support the 

court’s decision. We reject these contentions, and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2018, Underwriters, a New York corporation with its principal place 

of business there, filed a complaint in subrogation against Apical. It alleged

that Apical, a designer and manufacturer of emergency flotation systems for 

helicopters, supplied a defective and dangerous emergency flotation system 

causing a sightseeing helicopter in New York to roll and sink upon an 

emergency water landing and resulting in the death of five passengers. 

Underwriters alleged it had issued a policy of aircraft insurance to tour 

company Liberty Helicopters (Liberty) and paid on its policy for the 

helicopter’s loss. Underwriters brought tort and products liability causes of 

action under theories of manufacturing and design defects, failure to warn, 

negligence and negligent failure to warn, and breach of implied warranty. 

Apical unsuccessfully demurred to the complaint on grounds the claims were 

barred under New York’s economic loss rule. 

Apical thereafter moved to stay or dismiss the lawsuit on grounds of 

forum non conveniens. It asserted that as a result of the accident and before 

Underwriters filed its complaint, a wrongful death lawsuit had been filed in 

New York County—Cadigan, et al. v. Liberty Helicopters, et al. (March 13, 

2018, No. 152286) [2018 WL 1312212] (N.Y. Sup.) (the Cadigan action)—in 

which Apical, a California-based corporation, had stipulated to submit to the 
3

New York court’s jurisdiction in exchange for the plaintiffs’ waiver of punitive 

damages and also with respect to Underwriters’ property claims in 

subrogation in the California action. Apical argued Underwriters’ causes of 

action closely mirrored those against it in the Cadigan action, and thus there 

was “no practical impediment to [Underwriters] or Liberty . . . making their 

claims against A[pical] in the Cadigan action.” It argued Underwriters’ 

complaint involved the same evidence and liability issues involving the other 

Cadigan defendants, but those defendants were not parties to the California 

action or California residents, presenting challenges to personal jurisdiction 

in California if Apical were to bring them into the case via cross-complaint. 

According to Apical, access to evidence from those parties—all but one of 

whom had already submitted to New York jurisdiction and could be subject to 

coordinated discovery and compulsory process there—would be significantly 

more difficult, costly and time-consuming in the California action, causing it 

unfair prejudice because the parties were highly relevant to the accident 

flight and their evidence was required for a fair result. Apical argued New 

York was a suitable alternative forum, and the balance of public and private 

interest factors—access to sources of proof, the cost of obtaining and 

availability of compulsory process for witnesses, burdens on local courts, 

protecting jurors’ interests, California’s interests and competitive 

disadvantages to its businesses—favored New York as the forum for 

Underwriters’ claims. It argued Liberty and Underwriters would not be 

inconvenienced by dismissal of the California lawsuit because they were both 

New York corporations and their evidence was located in New York. Apical 

submitted a declaration from its counsel attaching Underwriters’ complaint 

and the Cadigan second amended complaint. 
4

In opposition, Underwriters argued that Apical’s motion should be 

denied because California was the sole location of all the documents and 

witnesses relevant to the design and manufacturing issues presented by its 

lawsuit. It pointed out that Apical, which is located in Oceanside, California, 

had initially objected to the New York court’s assertion of personal 

jurisdiction over it in the Cadigan action and claimed it had no nexus with 

New York. Underwriters asserted it would be inconvenient for Apical to 

litigate anywhere other than its home forum. Underwriters argued that all of 

the information and witnesses relating to Apical’s design and manufacture 

were in California and sale of the flotation system occurred in California. It 

asked the court to reject Apical’s “procedural maneuvering” and maintain the 

action in California 

The trial court tentatively denied Apical’s motion, finding the public 

and private interests weighed in favor of keeping the action in California.1

After considering the parties’ arguments on the motion and taking the matter 

under submission, however, the court granted the motion. It ruled Apical 

met its burden of showing the balance of private and public interests required 

using New York as the alternate forum: “[Apical] has entered into a 

stipulation to submit to personal jurisdiction in New York and there is no 

dispute that any of [Underwriters’] claims are time-barred. Moreover, while 

[Apical] is a California corporation that designs and manufactures its 

1 The tentative ruling reads in part: “[T]he Court is not persuaded that 

it would be in the interest of substantial justice to have this matter 

adjudicated in New York. Although [Apical] has established that New York 

is a ‘suitable’ alternative forum, the private interests of the parties and the 

interests of the public weigh in favor of the action remaining in California. 

. . . The gravamen of the instant lawsuit is that [Apical] allegedly defectively 

manufactured and/or designed one of its products. . . . California has an 

interest in regulating products manufactured here and there is no evidence 

that this case will impose an undue burden on California courts.” 
5

products exclusively in California, the Court is persuaded that much of the 

evidence relating to causation and damages is located in New York, where 

the accident occurred. As such, the Court finds that it is in the interest of 

substantial justice to have the action adjudicated in New York.” The court 

stayed the action until completion of the New York Cadigan case. 

Underwriters filed this appeal from the order. 

DISCUSSION

I. Legal Principles 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 tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 

Cal.3d 744, 751 (Stangvik).) The doctrine is codified in Code of Civil 

Procedure section 410.30.2 Both case authority and the statute distinguish 

between the dismissal of an action on this ground and a stay. (Archibald v. 

Cinerama Hotels (1976) 15 Cal.3d 853, 857; see Verdugo v. Alliantgroup, L.P.

(2015) 237 Cal.App.4th 141, 161.) When, as here, a court stays an action on 

ground of forum non conveniens, it retains jurisdiction over the parties and 

the cause to protect the interests of the California resident pending the 

2 Code of Civil Procedure section 410.30, subdivision (a) provides: “When 

a court upon motion of a party or its own motion 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.” The Judicial Council comments to the statute state in 

part: “Under the doctrine of inconvenient forum, a court, even though it has 

jurisdiction, will not entertain the suit if it believes that the forum of filing is 

a seriously inconvenient forum for the trial of the action. But in such 

instances a more appropriate forum must be available to the plaintiff.” 

(Judicial Council of Cal., com., reprinted at 14A West’s Ann. Code Civ. Proc. 

(2004 ed.) foll. § 410.30, p. 486.)
6

foreign forum’s final decision. (Archibald, at p. 857.) Apical as the moving 

defendant bears the burden of proof on a motion to stay or dismiss on 

grounds of an inconvenient forum. (Stangvik, at p. 751; David v. Medtronic, 

Inc. (2015) 237 Cal.App.4th 734, 743.)

In ruling on a motion based on this doctrine, the trial court engages in 

a two-step process, first determining whether the proposed alternative forum 

is a suitable place for trial. (Stangvik, supra, 54 Cal.3d at p. 751; David v. 

Medtronic, Inc., supra, 237 Cal.App.4th at p. 741; National Football League v. 

Fireman’s Fund Insurance Company (2013) 216 Cal.App.4th 902, 917.) “ ‘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.] . . . “[I]t is 

sufficient that the action can be brought, although not necessarily won, in the 

suitable alternative forum.” ’ ” (Investors Equity Life Holding Co. v. Schmidt

(2011) 195 Cal.App.4th 1519, 1529.) A lawsuit “ ‘will be entertained, no 

matter how inappropriate the forum may be, . . . if the plaintiff’s cause of 

action would elsewhere be barred by the statute of limitations, unless the 

court is willing to accept the defendant’s stipulation that he will not raise this 

defense in the second state [citations].’ ” (Stangvik, at p. 752; see also

Investors Equity Life, at p. 1531.) Any concerns regarding the “ ‘suitability’ ” 

of the alternative forum may be avoided by defendant’s agreement to comply 

with certain conditions, such as submission to jurisdiction or waiver of the 

statute of limitations defense. (Stangvik, at p. 752; see Investors Equity Life, 

at pp. 1536-1537.) The threshold issue of a suitable forum is 

nondiscretionary and subject to de novo review. (Diaz-Barba v. Superior 

Court (2015) 236 Cal.App.4th 1470, 1483-1484; American Cemwood Corp. v. 

American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436; see Stangvik, 

at p. 752, fn. 3.)
7

If the court finds the forum a suitable alternative, “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. 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.” (Stangvik, supra, 54 Cal.3d at p. 751; see

National Football League v. Fireman’s Fund Insurance Company, supra, 216 

Cal.App.4th at p. 917.) “The court can also take into account the amenability 

of the defendants to personal jurisdiction, the convenience of witnesses, the 

expense of trial, the choice of law, and indeed any consideration which 

legitimately bears upon the relative suitability or convenience of the 

alternative forums.” (Archibald v. Cinerama Hotels, supra, 15 Cal.3d at 

p. 860.) Courts reviewing the doctrine have identified as many as 25 

somewhat-overlapping factors to be considered on these interests. (See Great 

Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105, 113-114; 

Northrop Corp. v. American Motorists Inc. Co. (1990) 220 Cal.App.3d 1553, 

1560.)

We review the court’s weighing and balancing of public and private 

factors for abuse of discretion, giving “substantial deference” to the trial 

court’s ruling. (Stangvik, supra, 54 Cal.3d at p. 751; Laboratory Specialists 

International, Inc. v. Shimadzu Scientific Instruments, Inc. (2017) 17 
8

Cal.App.5th 755, 764.) “ ‘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.” ’ ” (National Football League v. Fireman’s

Fund Insurance Company, supra, 216 Cal.App.4th at p. 918.)

II. New York as a Suitable Alternate Forum

Whether an alternative forum is a suitable place for trial entails an 

inquiry into whether the action can be brought: there is jurisdiction and no 

statute of limitations bars hearing the case on the merits. (Roulier v. 

Cannondale (2002) 101 Cal.App.4th 1180, 1186; see Piper Aircraft Co. v. 

Reyno (1981) 454 U.S. 235, 254, fn. 22.)3 The trial court determined New 

York was a suitable alternative forum, and Underwriters does not contest 

that part of the court’s ruling. We proceed to the court’s decision on the 

second step of the forum non conveniens analysis.

3 The United States Supreme Court in Piper explained: “Ordinarily, this 

requirement will be satisfied when the defendant is ‘amenable to process’ in 

the other jurisdiction. [Citation.] In rare circumstances, however, where the 

remedy offered by the other forum is clearly unsatisfactory, the other forum 

may not be an adequate alternative, and the initial requirement may not be 

satisfied. Thus, for example, dismissal would not be appropriate where the 

alternative forum does not permit litigation of the subject matter of the 

dispute.” (Piper Aircraft Co. v. Reyno, supra, 454 U.S. at p. 254, fn. 22.) 

Piper’s “ ‘no remedy at all’ ” exception applies only in rare circumstances as 

where the alternate forum is a foreign country without an independent 

judiciary or due process of law. (Shiley Inc. v. Superior Court (1992) 4 

Cal.App.4th 126, 134.) Under Stangvik, however, the court may not consider 

the fact that the alternate forum fails to recognize a particular remedy that 

would be available to the plaintiff under California law. (Stangvik, supra, 54 

Cal.3d at pp. 754 [“the fact that California law would likely provide plaintiffs 

with certain advantages of procedural or substantive law cannot be 

considered as a factor in plaintiffs’ favor”], 764; Shiley Inc., at p. 133; Boaz v. 

Boyle & Co. (1995) 40 Cal.App.4th 700, 710.) On this prong, there is no 

balancing or discretion to be exercised. (Shiley Inc., at p. 132.) 
9

III. Balancing of Private and Public Interests

The court determined that the balance of private and public interests 

favored New York as the appropriate forum for Underwriters’ lawsuit, in part 

finding “much of the evidence relating to causation and damages is located in 

New York, where the accident occurred.” Underwriters contends the court 

misapplied the law by failing to evaluate all of the relevant factors. It points 

to the court’s tentative ruling, characterizing it as finding Apical “failed to 

produce any evidence in support of any of the public interest factors.” 

Underwriters argues Apical came forward with no new evidence establishing 

any burden on California courts in retaining the lawsuit, and even after the 

hearing the court recognized the product was designed and manufactured 

exclusively in California. It argues for these reasons the court could not have 

reached its ruling on the motion because Apical did not attempt to meet the 

public interest factors, and on this ground alone we should reverse. 

In assessing whether the trial court’s decision is an abuse of discretion 

we look to whether its act “is within the range of options available under 

governing legal criteria in light of the evidence before [it].” (Hansen v. 

Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 758, disagreed 

with on other grounds in National Football League v. Fireman’s Fund Ins. 

Co., supra, 216 Cal.App.4th at p. 933.) We ask whether the court’s ruling 

“ ‘ “exceed[ed] the bounds of reason,” ’ ” after considering all of the 

circumstances before it; if not, we affirm the ruling regardless how we might 

have decided the issue in the first instance. (Quanta Computer Inc. v. Japan 

Communications Inc. (2018) 21 Cal.App.5th 438, 447 [review of grant of 

forum non conveniens motion].) In the context of a forum non conveniens 

analysis, as is generally the case on appellate review, we presume the order 

is correct. (Ibid.) We are ultimately concerned with the correctness of the 
10

lower court’s decision rather than its reasoning. (Ibid.; see Guimei v. General 

Electric Co. (2009) 172 Cal.App.4th 689, 696 [appellate court must uphold 

order if there is a reasonable or even fairly debatable justification under the 

law for the court’s action]; accord, In re Marriage of Ditto (1988) 206 

Cal.App.3d 643, 647.) 

Underwriters’ focus on the court’s tentative ruling is misplaced. “ ‘[A] 

court is not bound by its statement of intended decision and may enter a 

wholly different judgment [or order] than that announced.’ ” (In re Marriage 

of Ditto, supra, 206 Cal.App.3d at p. 646.) Even if we were to consider it, 

Underwriters mischaracterizes the court’s tentative ruling as finding no 

evidence of any public interest factor. The court’s tentative ruling addressed 

only evidence of undue burden on the California court. Court congestion or 

burden is but one factor in the forum non conveniens public interest analysis. 

The court had wide discretion in weighing and balancing all of the factors,

including after its tentative ruling. We reject the suggestion that the court 

was bound by its tentative finding or precluded from revisiting or reassessing 

the strength of certain factors in its final ruling. 

Citing Stangvik, Underwriters argues “the lower court must weigh all

of the public and private interest factors” and “may not base its conclusion on 

some factors to the exclusion of others.” Stangvik involved a medical product

designed and manufactured in California by a California corporate defendant 

causing injury to foreign plaintiffs. The California Supreme Court 

acknowledged the relevant cumulative California connections with the 

defendant: the presumption of California’s convenience and close connection 

with the alleged wrongful conduct committed here. (Stangvik, supra, 54 

Cal.3d at pp. 757 [summarizing the plaintiffs’ showing on the point]), 760.) 

However, it rejected decisions holding these factors necessarily meant the 
11

California court would not be unfairly burdened, stating such an analysis 

“would require that the court congestion factor always be decided in favor of 

the plaintiff and against a California corporation which caused injury to 

consumers anywhere in the world, if the product was manufactured here.” 

(Id. at pp. 760-761.) The court stated “we cannot look only to such 

circumstances,” since other matters were relevant such as the complexity of 

the case and condition of the court’s docket. (Id. at p. 761.) The import of 

Stangvik is that even where, as here, there are strong considerations favoring 

California as a forum (a California corporation designs and manufactures an 

allegedly defective product in California), those circumstances are not 

dispositive on the public and private interest factors, but may be outweighed 

by other considerations.

The trial court’s ruling in this case, which expressly acknowledges the 

law requires a balancing of private and public interests and states it applied 

those standards, does not suggest the court placed undue emphasis on any 

particular factor to the exclusion of others. (Compare Shiley Inc. v. Superior 

Court, supra, 4 Cal.App.4th at pp. 130, 135 [court’s ruling that petitioners 

had “ ‘failed to show the kind of weighty reasons to interfere with the 

plaintiff’s [sic] choice of forum that case law requires’ ” and finding it was

“ludicrous” for Orange County defendant to say California was inconvenient,

showed court did not consider the relevant factors but relied too heavily on 

plaintiffs’ choice of forum and defendant’s residence].) Additionally, the 

public and private factors are not fixed and inflexible. The California 

Supreme Court has explained that “[t]he trial court retains a flexible power 

to consider and weigh all factors relevant to determining which forum is the 

more convenient . . . .” (Archibald v. Cinerama Hotels, supra, 15 Cal.3d at p.

860.) The “private and public interest factors must be applied flexibly, 
12

without giving undue emphasis to any one element” and no court should 

decide there are circumstances in which the doctrine will always apply or 

never apply. (Stangvik, supra, 54 Cal.3d at p. 753.) The strength, weakness 

or absence of any particular factor is not fatal to a finding that other relevant 

factors warrant granting or denying a motion to dismiss or stay on forum non 

conveniens grounds.

To the extent Underwriters suggests Stangvik requires the court to 

make express findings on each and every factor, it is incorrect. The law is to 

the contrary: no structured analysis or express ruling on the record is 

required for a proper exercise of the court’s discretion on a forum non 

conveniens motion. (Campbell v. Parker-Hannifin Corp. (1999) 69 

Cal.App.4th 1534, 1542.) And as stated, the factors are not immutable. (See 

Stangvik, supra, 54 Cal.3d at p. 751 [describing factors as examples, listing 

them using the phrases “such as” and “including”]; Archibald v. Cinerama 

Hotels, supra, 15 Cal.3d at p. 860 [trial court may take into account “any 

consideration which legitimately bears upon the relative suitability or 

convenience of the alternative forums”].)

There is no indication that the trial court in this case failed to consider 

the relevant factors. As we set out more fully below, Apical’s motion

addressed the private and public interest factors. The trial court could have 

reasonably decided that other public and private interest factors weighed in 

favor of New York as the forum even if no appreciable burden to the 

California court would result from retaining the case here. (See, e.g., 

Stangvik, supra, 54 Cal.3d at p. 760 [“the [appellate] court was justified in 

upholding the judgment on the basis of the other public and private interest 

factors which it considered”].) Or the court could have decided that Apical 

did in fact demonstrate burden on the California court in, for example, 
13

compelling the presence of unwilling New York witnesses if the action were to 

remain here to warrant its ruling. The trial court was not required to explain 

its reasoning. In short, Underwriters has not shown the court misapplied the 

law by failing to consider relevant factors.4

A. Private Interests

The private interest factors focus on the litigants. (Price v. Atchison, T. 

& S.F. Ry. Co. (1954) 42 Cal.2d 577, 584-585.) As stated, in determining 

whether to grant a forum non conveniens action, those 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.” (Stangvik, supra, 54 Cal.3d at 

p. 751.) The private interests broadly involve “ ‘all other practical problems 

that make trial of a case easy, expeditious and inexpensive.’ ” (Price, at p. 

585.) It may be that both sets of parties suffer inconvenience and expense 

from litigating the case in the forum preferred by the other side. But such 

problems “are implicit in many cases in which forum non conveniens motions 

are made, and it is for the trial court to decide which party will be more 

inconvenienced.” (Stangvik, at p. 763.) If the balancing does not clearly favor 

4 Citing Fox Factory, Inc. v. Superior Court (2017) 11 Cal.App.5th 197, 

Underwriters argues a court abuses its discretion when it fails to properly 

apply relevant legal standards. But in Fox Factory, the trial court denied a 

motion to dismiss or stay the plaintiff’s lawsuit on forum non conveniens 

grounds citing authority requiring California to be a “seriously inconvenient” 

forum for the motion to succeed. (Id. at p. 200.) The Court of Appeal 

explained that use of that particular legal test in cases involving a foreign 

plaintiff, as plaintiff was there, contravened Stangvik, and thus the lower 

court erred by using it. (Id. at pp. 205, 207.) Fox does not convince us the 

trial court here failed to properly consider or weigh the various public and 

private interest factors.
14

one state over the other, we must defer to the trial court’s discretionary 

decision according more weight to the factors favoring the state chosen.

Underwriters contends no reasonable court could conclude the private 

interest factors weigh in favor of staying its action. It argues Apical admitted 

that all of its conduct related to the design and manufacture of the flotation 

system took place in California, and thus all of the documentary evidence and 

knowledgeable witnesses are in this state. Underwriters points out that in 

connection with Apical’s challenge to New York jurisdiction, Apical submitted 

evidence that it had no connection to New York; it was not authorized to do 

business there, did not maintain offices or facilities there, it designed and 

manufactured its products exclusively in California, it sold and shipped its 

product to a Canada company in Canada, and it did not enter into any 

contract with any entity in New York. It characterizes Apical’s position on its 

forum non conveniens motion as a “reversal” amounting to “gamesmanship 

and forum shopping.”5 Underwriters claims Apical’s sworn admissions 

established the private interest factors weighed in favor of denying its 

motion. 

In support of its motion, Apical presented a declaration from its counsel 

Garry Montanari, who averred, among other things, that while Underwriters 

alleged the helicopter flotation device was manufactured by Apical, “A[pical]

did not install the float system onto the accident helicopter. Apical did not 

conduct maintenance of the subject float system” but “[t]hose activities were 

5 Underwriters’ accusation of gamesmanship on Apical’s part is without 

merit. Apical may have at first challenged the New York court’s jurisdiction 

over it, but the existence of personal jurisdiction is a different inquiry than 

the question of whether an action “may be more appropriately and justly 

tried elsewhere.” (Stangvik, supra, 54 Cal.3d at p. 751.) Apical later 

submitted to the New York court’s jurisdiction, and we see nothing 

inconsistent with its earlier position and its forum non conveniens motion.
15

conducted by other entities outside the State of California.” He averred that 

Apical was one of ten defendants in the New York Cadigan action, and the 

only defendant from California. He identified the other defendants, including 

the helicopter pilot, all of which had appeared or agreed to appear in New 

York with the exception of a group of companies (EuroTec) associated with 

installing or servicing the system. Montanari stated: “[The helicopter pilot], 

in particular, is the only eyewitness who was on the subject helicopter and 

survived the accident. He is a vital witness/party. He is believed to be a 

resident in the New York area. It is probable that he would challenge 

personal jurisdiction in California. Thus, the Cadigan action involves a far 

more complete roster of relevant parties than this California subrogation 

action does or ever could do, based on anticipated challenges to personal 

jurisdiction if A[pical] was forced to cross-complain against those parties in 

this California action.” He further averred: “Because the underlying 

helicopter accident does not involve any other California party, and there are 

no known witnesses or evidence located in California other than A[pical]-

controlled evidence and witnesses, the majority of evidence relevant to this 

case will be located or available in New York. The aircraft was maintained 

and tested there when it was in operation. The aircraft wreckage is there. 

The pilot . . . is in the New York area. Investigations were conducted there. 

First responders and recovery workers are located in New York. 

Additionally, the FAA/NTSB only allows one deposition of its investigators 

per accident so those witnesses could only be deposed in one jurisdiction on 

liability issues. . . . Taking those depositions in a coordinated way with all 

parties present in the Cadigan action would be the much more convenient 

and preferable way to handle that discovery. Thus, New York offers far 

greater ease of access to sources of proof, a lower of [sic] cost of obtaining 
16

attendance of witnesses, and the availability of compulsory process for the 

attendance of unwilling witnesses located in New York or who are under the 

control of parties who have already submitted to the jurisdiction of New York 

arising out of the helicopter accident. Furthermore, conducting pretrial 

investigation and discovery will be significantly less expensive and 

burdensome if it is coordinated among all parties in the Cadigan action in 

New York.” Montanari went on to say that none of the other Cadigan

defendants were California residents, so access to evidence from them would 

be more difficult, costly and time-consuming, prejudicing Apical because 

“those other parties are highly relevant to the accident flight and the 

evidence they could provide should be available for a fair result in this 

litigation.” 

Of course, causation and injury are elements of negligence, as well as 

design and manufacturing defect and failure to warn claims. (See County of 

Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318, citing 

Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614 & Soule v. General Motors 

Corp. (1994) 8 Cal.4th 548, 560.) Establishing causation in a products 

liability case requires a showing that some defect in a product’s design or 

manufacture, or some other negligence or failure to warn, was a substantial 

factor in an injury or loss, here the loss of the helicopter. (See Rutherford v. 

Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968; Johnson & Johnson Talcum 

Powder Cases (2019) 37 Cal.App.5th 292, 323-324; Bolger v. Amazon.com, 

LLC (2020) 53 Cal.App.5th 431, 461 [strict liability is not absolute liability; 

the plaintiff’s injury must have been caused by a defect in the product]; 

Hoover v. New Holland North America, Inc. (N.Y.Ct.App. 2014) 11 N.E.3d 

693,701; Voss v. Black & Decker Mfg. Co. (N.Y.Ct.App. 1983) 450 N.E.2d 204, 

208.)
17

Underwriters’ claim that the sole relevant witnesses are in California is 

an overly narrow view of the issues in this products liability/subrogation case. 

Apical made a showing that the evidence would not be necessarily restricted 

to evidence of negligent design and manufacture. A manufacturer defendant 

is not prevented from presenting evidence that some other circumstance or 

actor contributed to the injury or loss, based on the circumstances 

surrounding the occurrence of the accident. (Accord, Endicott v. Nissan 

Motor Corp. (1977) 73 Cal.App.3d 917, 926, 927 [“If the violence of a crash is 

the effective efficient cause of plaintiff’s injuries to the extent that it 

supersedes other factors such as defective design and makes them 

immaterial, plaintiff cannot recover”; in Endicott, “plaintiff’s operation of his 

automobile, negligent or not, was the overriding cause of the serious accident 

that brought him severe injury” and difficulty in reconstructing the probable 

sequence of events along with other limitations on expert evidence “wholly 

preclude any demonstration of substantial probability of causal link” of the 

product’s design and enhancement of plaintiff’s injuries].) 

Underwriters did not rebut or object to Montanari’s declaration, which 

established that witnesses relevant to possible contributors to the accident

and information about the helicopter’s loss—the helicopter pilot, persons who 

tested and maintained the aircraft, first responders, and accident 

investigators—were in New York and had submitted to jurisdiction there. 

Underwriters did not contest Montanari’s assertion that it would present a 

challenge to compel key witnesses such as the pilot to appear if sued in a 

California cross-complaint. Underwriters points to Apical’s initial 

jurisdictional challenge, but Apical has since agreed to submit to New York 

jurisdiction. The evidence supports the court’s conclusion that New York was 

a more convenient place for trial in view of the evidence from these witnesses, 
18

despite the fact much if not all of the evidence relating to design and 

manufacture of the product would be in California. (Accord, Stangvik, supra, 

54 Cal.3d at p. 762 [holding the private interests of the parties favored trial 

in Scandinavia, in part reasoning: “It is true that much, but not all, of the 

evidence concerning liability exists in California; but virtually all the 

evidence relating to damages is in Scandinavia,” footnote omitted].) 

The parties’ respective residences do not compel a different conclusion. 

Though a corporation’s state of incorporation or principal place of business is 

presumptively a convenient forum (Stangvik, supra, 54 Cal.3d at p. 755), a 

“[California] defendant may overcome the presumption of convenience by 

evidence that the alternate jurisdiction is a more convenient place for trial of 

the action.” (Stangvik, at p. 756, fn. omitted; Campbell v. Parker-Hannifin 

Corp. (1999) 69 Cal.App.4th 1534, 1542.) Further, because Underwriters is a 

New York entity, “the fact [it] chose to file [its] complaint in California is not 

a substantial factor in favor of retaining jurisdiction here.” (Stangvik, at p. 

756, fn. omitted; accord, Fox Factory, Inc. v. Superior Court, supra, 11 

Cal.App.5th at p. 205 [“the forum choice of a foreign plaintiff is not entitled to 

a presumption of convenience”].) Finally, Apical presented evidence that it 

already had appeared in New York, and Underwriters had also hired 

attorneys for Liberty and filed an answer in the Cadigan action. The court 

reasonably could conclude Apical should not suffer the disadvantage and 

additional expense of having counsel appear in both states, and Underwriters 

would face no additional burden if the case were tried in New York.

It was reasonable for the trial court to conclude Apical adequately 

demonstrated that many likely witnesses were present in New York and thus 

the ease of access of proof, the cost of obtaining their attendance, and the 

availability of compulsory process for the attendance of any unwilling 
19

witnesses, weigh in favor of New York as the appropriate forum. Our review 

for abuse of discretion means we may not reweigh the factors and ignore 

those supporting the court’s resolution, but must instead give its decision 

substantial deference. Particularly in view of Montanari’s declaration, we 

cannot say the trial court abused its discretion in deciding that the private 

interests of the parties support litigating this matter in New York; we 

therefore defer to its conclusion. (Stangvik, supra, 54 Cal.3d at pp. 751-752.)

B. Public Interest

Underwriters contends Apical did not meet its burden to prove the 

public interest factors weighed in favor of granting Apical’s motion. It points 

again to the trial court’s tentative conclusion that there was no evidence the 

case would impose an undue burden on California courts. Underwriters 

argues California has a strong interest in deterring negligent design, 

production and sale of products within its borders, and in comparison, New 

York “has no interest in a product liability subrogation lawsuit brought by an 

insurance company against a manufacturer, and involving a product not 

designed, manufactured or sold in New York.” Underwriters maintains 

“[n]othing changed” after the court’s tentative ruling; it argues Apical did not 

counter that California—its principal place of business and state of 

incorporation—was “ ‘presumptively a convenient forum.’ ” 

We reject the latter contention, which again seeks to set in stone the 

court’s tentative ruling. The court had ample basis to change its decision on 

the public interest aspect of the analysis. In making its motion, Apical 

argued California had little interest in claims focusing on a helicopter 

accident that occurred in New York, involving a helicopter owned and 

operated in New York, and resulting in injuries and property damage to New 

York residents. It argued “[a]ny interest that California may have as it 
20

applies to Apical is outweighed by New York’s public interest in adjudicating 

claims arising from the death of its residents while they are passengers in a 

helicopter that is being operated in its airspace.” Apical also touched on 

issues of court congestion, arguing “[t]he time to litigate this case in 

California would be protracted due to Apical’s limited ability to compel 

witnesses and documents in California from the New York and other nonforum parties who are already subject to and/or have submitted to the 

jurisdiction of the pending New York Cadigan action.” It argued much of the 

evidence would originate in New York, including that involving Liberty, the 

helicopter operator and insured. 

The guiding principle in considering the public interest is that the 

jurisdiction with the greater interest should bear the cost and burden of 

entertaining the litigation. (Stangvik, supra, 54 Cal.3d at p. 757, citing Piper 

Aircraft Co. v. Reyno (1981) 454 U.S. 235, 260-261.) The examination is not 

so much an evidentiary question as a process of weighing and balancing 

“more general considerations.” (Campbell v. Parker-Hannifin Corp., supra, 

69 Cal.App.4th at p. 1542; see National Football League v. Fireman’s Fund 

Ins. Co., supra, 216 Cal.App.4th at p. 933, fn. 15 [citing Campbell and 

another case for proposition that no particularized affidavits are required].)6 

We will not attach significance to the court’s failure to mention any particular 

part of the evidence. (National Football League v. Fireman’s Fund Ins. Co., 

at p. 936.) “Where the record is silent we draw all reasonable inferences in 

6 In National Football League v. Fireman’s Fund Ins. Co., supra, 216 

Cal.App.4th 902, the court stated that “[t]he moving party burden on a forum 

non conveniens motion appears to consist of establishing a suitable alternate 

forum and providing the trial court with sufficient facts to carry out its 

weighing and balancing analysis. Any additional requirements would appear 

to conflict with the clear mandate that the analysis is entrusted to the trial 

court’s discretion.” (Id. at p. 933, fn. 15.) 
21

favor of the trial court’s ruling, because that court had no duty to fully 

express the reasons for its ruling.” (Ibid.)

It is clear both New York and California each have an interest in 

adjudicating the matter. California certainly has an interest in protecting its 

consumers from the production and sale of defective products in this state, or 

as Stangvik characterized this factor, an interest in deterring negligent 

conduct. (Stangvik, supra, 54 Cal.3d at p. 759.) On the other hand, both 

Underwriters and Liberty are domiciled in New York and the accident 

occurred there involving Liberty’s tour company helicopter with numerous 

essential New York witnesses and victims. New York has at least an equally

strong interest in assessing the contribution of not only Apical, but also the 

resident defendants—including Liberty employees and the pilot—in the cause 

of the accident that resulted in the aircraft’s loss as well as deaths in its 

state. California jurors have little interest in the damage to a helicopter 

owned and operated in New York, suffered by a New York company, in New 

York. (Accord, Hansen v. Owens-Corning Fiberglas Corp., supra, 51 

Cal.App.4th at p. 760 [“California courts . . . have little or no interest in 

litigation involving injuries incurred outside of California by nonresidents”].) 

The trial court could reasonably take the view that successful litigation in 

New York would have the same deterrent effect on Apical that a California 

court might afford. (Accord, Morris v. AGFA Corp. (2006) 144 Cal.App.4th 

1452, 1467, disagreed with on other grounds in National Football League v. 

Fireman’s Fund Ins. Co., supra, 216 Cal.App.4th at p. 933.) It reasonably 

decided the public interests favor maintaining the action in New York, and 

we decline to reweigh the evidence and substitute our judgment for the trial 

court’s. (National Football League, at p. 936.) 
22

Underwriters summarizes and distinguishes other cases in an effort to 

convince us that the trial court erred in its ruling because its subrogation 

case against Apical does not involve multiple plaintiffs, defendants or 

victims. It points out the forum non conveniens doctrine is equitable in 

nature, and argues there is nothing equitable about allowing Apical to engage 

in “blatant manipulation” or “forum shopping.” Underwriters cites more 

cases to highlight that in none of them was the forum non conveniens 

doctrine used to forum shop, but it does not explain why New York law is so 

much more beneficial to Apical that it would be compelled without 

justification to move the case there. Underwriters concedes that a stay is 

appropriate where there are substantial connections with a foreign 

jurisdiction and comparatively minimal connections with California, but it 

argues “where the case involves a California defendant and there are 

substantial connections between the case and California, staying or 

dismissing a case based upon forum non conveniens would be inappropriate.” 

The forum non conveniens analysis is not so bright-line, and because 

each case turns on its own facts, it is unhelpful to compare the circumstances 

here to other cases. Here, New York has a strong connection to the subject 

matter of the case, and we see nothing about Apical’s motion suggesting it 

unfairly or unreasonably invoked the forum non conveniens doctrine. We are 

required to give “substantial deference” to the court’s discretionary 

determination according more weight to the public and private interest 

factors favoring New York as the appropriate forum and staying the 

California action. (Stangvik, supra, 54 Cal.3d at p. 751.) For the reasons 

stated above, we cannot say the court’s ultimate conclusion exceeds the 

bounds of reason under all of the circumstances. Thus, we affirm the order.
23

DISPOSITION

The order is affirmed.

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.