The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Say you live in California, but have a business deal in France, with a Frenchman who lives in California. The deal goes sour, and you sue in California court. A California court might well say, "Look, all the documents are in French, some of the key witnesses are in France, the underlying real estate is in France—go to France and sue there." This would be called a dismissal on "forum non conveniens" grounds, and it's pretty standard American law. The relevant California statute, for instance, says,
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.
But what if, instead of France, the deal involves Iran—and what if two of the plaintiffs are non-Muslim woman whose parents fled the revolution? A California trial court in such a case, as I noted in April, still said "forum non conveniens": Iran is the more suitable forum, and that's where the plaintiffs should go. But Tuesday, the California Court of Appeal reversed (Aghaian v. Minassian (Cal. Ct. App. Feb. 17, 2015)) (some paragraph breaks added):
In determining whether to grant a motion based on forum non conveniens, the court makes a threshold determination whether the alternate forum is a suitable place for trial, and if it is, the court then balances the private interests of the litigants and the interests of the public in retaining the action in California…. An alternative forum is suitable if the defendant is subject to its jurisdiction and the cause of action is not barred by the statute of limitations. "[S]o long as there is jurisdiction and no statute of limitations bar, a forum is suitable where an action 'can be brought,' although not necessarily won." The alternative forum does not become unsuitable simply because the law is less favorable or recovery is more difficult, if not impossible.
In " 'rare circumstances,' " an alternative forum may be found unsuitable if it "provides no remedy at all." This exception has been applied in cases where the proposed alternative forum is in a foreign country that lacks an independent judiciary or fails to provide basic due process rights to one or more of the litigants….
[Defendant Shahen] Minassian has presented a declaration detailing the procedures and jurisprudence of the Iranian judicial system. Notably absent is any indication that Plaintiffs could receive a fair trial. Instead, the evidence is overwhelming that Iranian courts discriminate against women and non-Muslims.
Among other things, Plaintiffs submitted evidence that the testimony of a woman counts for half the value of that of a man, and that women are not treated equally before the courts, particularly in personal status matters relating to marriage, divorce, inheritance, and child custody, and only men can serve as judicial officers. Both [Patrick] Clawson and [Mehrangiz] Kar [who were the plaintiffs' experts] confirm that the judiciary in Iran is heavily influenced by religious authorities and that the law requires the head of the judiciary as well as the prosecutor general and all Supreme Court judges to be high ranking clerics.
Clawson cites to "many accounts of unequal treatment afforded to non-Muslims by Iranian courts" as a basis for his opinion that the Iranian legal system discriminates on the grounds of sex, religion, and political opinion. [The declaration of Reza Athari, plaintiff's expert,] admits that Iranian law must not be in direct conflict with Islamic tenets. Two of the three Plaintiffs here are women and the Galstian family members are not Muslim. Leaving aside whether Iranian courts are independent or corrupt, this is sufficient to show Iran is not a suitable alternative forum. This is the "rare circumstance" in which an alternative forum "provides no remedy at all."
Minassian contends he provided evidence that Iranian courts do not discriminate based on gender or religion because Athari asserted, "'[t]here are no religious or gender limitations' impacting access to the courts and such procedures." However just because a woman or non-Muslim may file a lawsuit or present her case at trial is not evidence the proceedings are not stacked against her.
Nor are we convinced by Minassian's attempt to place the evidentiary burden on Plaintiffs by arguing that Plaintiffs fail to show why Islamic influence on Iranian law would deprive them of a fair hearing in this real estate dispute. This argument is similar to his contention that generalized allegations of corruption and cultural or gender bias cannot defeat a forum non conveniens motion.
Plaintiffs do not merely present generalized allegations without any connection with the matter at hand, however. They explain how a woman or a non-Muslim is not afforded fair treatment, particularly in connection with probate matters.
For example, a woman's testimony is counted as half that of a man's. Minassian's point that one of the plaintiffs is a man is irrelevant. Two of the plaintiffs are women, one of whom is integral to the case. [Seda] Aghaian, one of [decedent Gagik Galstian]'s daughters, wrote the 1996 agreement between Gagik and Minassian and attended its signing. She also "was directly involved in analyzing the accounting records Minassian would provide Gagik in Los Angeles County, CA." and "inspected all documentation pertaining to Gagik's properties in Iran …." If this case were tried in Iran, her testimony on all of these matters would count for half of Minassian's or any other man's.
Sounds right to me. I think California courts applying nondiscriminatory rules of Iranian law when the choice-of-law analysis points in that direction, but that is precisely because California courts (imperfect as all courts are) can generally be trusted to apply these rules fairly. But this doesn't justify requiring plaintiffs to litigate instead in front of Iranian courts, when there is powerful evidence that those courts may be biased against plaintiffs based on "sex, religion, and political opinion."