Case Number: 20SMCV01495    Hearing Date: October 12, 2021    Dept: M

CASE NAME:           Kingdom of Sweden v. Mina Mobasser

CASE NO.:                20SMCV01495

MOTION:                  1.  Motion to Dismiss for Forum Non Conveniens

  1.   Demurrer

HEARING DATE:    10/12/2021

BACKGROUND

Plaintiff Kingdom of Sweden, on behalf of the Swedish Board of Student Finance (“CSN”), filed this action against Defendant Mina Mobasser and Does 1-20.  CSN alleges that Mobasser defaulted on student loans obtained from the Swedish Board of Student Finance and has filed suit to recover the balance by asserting claims for (1) breach of contract, (2) common count for money lent, and (3) common count for money had and received.

Mobasser filed a demurrer as well as a motion to dismiss or stay for forum non conveniens.

Motion to Dismiss for Forum Non Conveniens

LEGAL STANDARD

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: . . . (2) To stay or dismiss the action on the ground of inconvenient forum.” (Code Civ. Proc., § 418.10(a)(2).)  “A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.” (Code Civ. Proc., § 418.10(e).)

“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. (Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 609, 155 P.2d 42.)” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)  “In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a ‘suitable’ place for trial. If it is, 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.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)  Defendant has the burden of proof.  (Ibid.)  With respect to the burden of proof,

The California Supreme Court has never elaborated on its statement in Stangvik that “defendant, as the moving party, bears the burden of proof.” (Stangviksupra, 54 Cal.3d at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.) Courts of appeal have concluded from the “analytical framework set forth in Stangvik” that no substantial evidentiary showing, beyond the existence of an alternate forum, is required. . . . We agree. The 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.

(National Football League v. Fireman’s Fund Ins. Co. (2013) 216 Cal.App.4th 902, 933 fn. 15 [citing Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1542] [citing Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462].)  “[T]he evidence before the court, which may include affidavits of the parties, discovery responses, and the undisputed general knowledge of the nature of the action, need only be sufficient to give the court the ability to soundly exercise its discretion” as to the applicability of the Stangvik factors.  (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462.)

ANALYSIS

In her motion, Defendant Mina Mobasser argues that Sweden is a more suitable forum for this dispute.  Mobasser argues that the first factor, whether Sweden is suitable, depends on “whether an action may be commenced in the alternative jurisdiction and a valid judgment obtained in that location against the defendant.” (Stangviksupra, at 752 fn.3.)  Mobasser also argues that California courts have held that so long there is jurisdiction over the defendant and no statute of limitations bar, a forum is suitable where an action can be brought.  (Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 132.)

Relying upon the complaint, Mobasser notes that the written loan agreements at issue were all submitted and entered into in Sweden.  Mobasser concludes – without any support –  that since the agreements were entered into in Sweden, the causes of actions arose in Sweden.   Mobasser also argues that the money was loaned from the Swedish government for student aid to Plaintiff in the form of Swedish Crowns, and that interest rates, fees, penalties, and repayment rules were all according to Swedish laws.  Without citing to any evidence, Mobasser also argues that she is a dual citizen of Sweden, and therefore, Sweden has jurisdiction over Mobasser.  Finally, Mobasser contends that Sweden has a twenty-five year statute of limitations period for written student loan agreements relying upon Plaintiff’s Request for Judicial Notice.1

CSN opposes the motion arguing that Mobasser does not explain the basis for Sweden obtaining personal jurisdiction over a California resident such as herself, nor does she explain why a Swedish judgment would be recognized in California.  CSN also argues that Mobasser has failed to present any evidence in support of this motion.

Here, the Court agrees that Mobasser has failed to support this motion with evidence.  While the evidence needed for this motion is not substantial, Mobasser needed to provide this Court with evidence.  Mobasser generally pointed to the allegations in the complaint and CSN’s general request for judicial notice, however, Mobasser did not provide evidence that she is a dual citizen of the United States and of the Kingdom of Sweden and did not provide arguments as to why such dual citizenship would provide the Kingdom of Sweden with jurisdiction over Mobasser.  Since Mobasser did not provide evidence that Sweden is a more suitable forum, the Court does not consider the remaining Stangvik factors.

The motion to stay or dismiss for forum non conveniens is DENIED.

DEMURRER

“Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading . . . for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41.)  To properly file a demurrer with the court, the party must also file a declaration noting that he or she “met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. [or] (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 430.41(A) & (B).)

A demurrer for uncertainty attacks a complaint for being uncertain, ambiguous or unintelligible. (Code Civ. Proc., § 430.10(f).) Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)   A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)   “Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 (citing Code Civ. Proc., § 430.60; 49 Cal. Jur. 3d, Pleading, § 150, pp. 555–556; Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220.  The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law.  (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790).) The court treats all facts alleged in the complaint to be true.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.)

When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.”  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.))  “The burden is on the CSN to demonstrate the manner in which the complaint can be amended.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748.)

REQUEST FOR JUDICIAL NOTICE

            On December 12, 2020, CSN submitted a request for judicial notice pursuant to Evidence Code 452(f) requesting judicial notice of statutory, regulatory, and decisional laws of the Kingdom of Sweden, and of public entities in the Kingdom of Sweden.  CSN’s request for judicial notice is GRANTED as to exhibits A -I.   CSN also requests judicial notice of Exhibits J & K, two unpublished federal opinions, pursuant to Evidence Code 452(d).  CSN’s request for judicial notice of the unpublished decisions is DENIED.

ANALYSIS

Meet and Confer

            The Court finds that the parties satisfied their meet and confer obligations prior to filing this demurrer.  (Cheng Decl. ¶¶ 2.)

Demurrer

Mobasser demurs to each of the causes of action in the complaint on the basis that each are insufficient on statute of limitations grounds and on uncertainty grounds.

Uncertainty

Mobasser first argues that the first cause of action for breach of contract is uncertain as plead. To allege a breach of contract cause of action, CSN must plead the contract, CSN’s performance or excuse for non-performance, defendant’s breach, and damage to CSN as a result of the breach. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913; Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 [citing elements].)  Mobasser demurs arguing that the attachments to the complaint, which allegedly comprise the “contract” provide little to no understanding of the material terms of the contract.

In opposition, CSN argues that demurrers for uncertainty are reserved for when the complaint is so poorly drafted that a defendant cannot reasonably respond.   CSN further argues that when the purported ambiguities that are within the defendant’s knowledge, or that can be resolved through discovery, a demurrer for uncertainty is not appropriate. (A. F. Arnold & Co. v. Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 718.)  Here, the complaint is not so poorly drafted that Mobasser cannot tell that CSN is seeking to assert a breach of contract claim against her.  Therefore, the demurrer to the first cause of action for is OVERRULED.

  CSN also argues that special demurrers are not permitted against common count claims, citing Weitzenkorn v. Lesser (1953) 40 Cal.2d 778. The Supreme Court explained that common counts are not “subject to special demurrer on the ground of ambiguity or unintelligibility.” (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 793.)  Since special demurrers are not permitted against common counts, the special demurrers to the common counts are OVERRULED.

Sufficiency – Choice of Law and Statute of Limitations

Mobasser argues that all of CSN’s causes of action have expired due to the applicable California statute of limitations.  Mobasser contends that the Court should apply California law with respect to the statute of limitations since California is the forum.  Mobasser also argues that the breach of contract claim is insufficient as to when the breach occurred.  Mobasser notes that Exhibit D appears to show that the most recent weeks of approved loans were scheduled to be disbursed for 17 weeks in 2003. According to Exhibit C, which provides that payment is due six months after the last payment is received, Mobasser argues that would mean that repayment began as early as 2003 or 2004, which would be the date of breach.  Mobasser concludes that since this lawsuit was not filed until October 2020, more than seventeen years after the date of the alleged breach of contract, the claims are well beyond the four year statute of limitations as provided by California Code of Civil Procedure §337.

In opposition, CSN argues that Swedish law applies.  As the forum state, California will apply its own law “unless a party litigant timely invokes the law of a foreign state.” (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 581.)  (Mireskandari v. Gallagher (2020) 59 Cal.App.5th 346, 363, as modified on denial of reh’g (Jan. 21, 2021), review denied (Mar. 30, 2021).)   By opposition to the demurrer, CSN timely invoked the law of Sweden.  (Id. at 361–362.)  Under the Governmental Interest Test, CSN has the “burden of demonstrating that the application of the [Swedish statute of limitations] in this California litigation of California state law claims would further the interests of” Sweden.  (See id. at 362.) Under the Governmental Interest Test:

First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law ‘to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state’ [citation] and then ultimately applies ‘the law of the state whose interest would be more impaired if its law were not applied.’ ”

(McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 87–88 [quoting Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 107-108].)

CSN argues that two federal courts have examined the Governmental Interest Test with respect to Sweden and have found that Sweden’s statute of limitations applies. The Court notes that CSN cites unpublished federal authority in support of this argument.  “Although unpublished federal cases may be cited as persuasive, they are not precedent.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 548, fn.9.)  As to CSN’s requests for judicial notice of the federal unpublished decisions, the request is DENIED since such decisions are only persuasive.

CSN cites to the request for judicial notice that it submitted in this case on November 2, 2020.  CSN submitted the Swedish laws as well as certified translations of those law.  While legible, the Court requests that CSN submit cleaner scans of any more future translations.  CSN points to RJN Exhibit D which contains Swedish law on the statute of limitations, a claim for repayment of student loans or for recovery of study support becomes time barred 25 years after it was made, unless the limitation is disrupted.  (See 11/2/2020 RJN Ex. D [Study Support Act SFS 1999:1395, Chapter, Chapter 6, § 12, and Transitional Provisions note 21] [PDF p. 28 of 99].)   Sweden’s 25-year statute of limitations for claims for repayment of student loans applies unless the claim was time barred prior to July 1, 2011. (Ibid.)

CSN further points out that under Swedish law prior to July 1, 2011, a claim

became time barred 10 years after it was made, unless the limitation was interrupted before that.

(RJN Ex. B [Limitations Act SFS 1981:130, § 2] [PDF p. 10 of 99].) The Limitations Act provides, that the statute of limitations is disrupted if the borrower undertook payment, acknowledged the debt, or received a written demand or a written reminder from the creditor regarding the claim.  (RJN Ex. B [Limitations Act SFS 1981:130, § 2.)] [PDF p. 10 of 99].)  If the statute of limitations is disrupted, a new statute of limitations takes effect on the day of disruption.  (RJN Ex. B [Limitations Act SFS 1981:130, § 6.)] [PDF p. 10 of 99].)

Governmental interest

Here, California and Swedish laws are different.  The California statute of limitations is four years for “an action upon any contract, obligation or liability founded upon an instrument in writing.”  (Code Civ. Proc., § 337(a)).  In Sweden, the statute of limitations is either 10 or 25 years for claims for repayment of student loans depending on whether the claims were disrupted and were not already time-barred.

Since there is a difference, the Court examines each jurisdiction’s interest in the application of its own law under the circumstances of this particular case to determine whether a true conflict exists.  CSN points out that RJN Ex. C demonstrates the reasons for the change in the statute of limitations which expanded the statute from 10 years to 25 years. (See RJN Ex. C (Proposal by the Government 2010/11:113, §6.4).)  The government explained that CSN has difficulty in recovering debts abroad and that studies supported claims that student loans were at risk of becoming time-barred under the old statute of limitations because CSN is unable to contact such borrowers. (See id. [PDF page 16 of 99].)  The statute of limitations was amended and expanded in Sweden to specifically cover student loans.  The proposal submitted by the Government indicated in 2009, Swedish attempts to notify borrowers in the United States were only 36 percent successful compared to 90 percent successful in Nordic countries. (See id. [PDF page 16 of 99].)  The claims in the complaint involved loans made for the Fall of 1991 and Spring of 1992 to study at Södertornskolan (see Ex. A to Compl. at p. 7), as well as in 2002 to study in the United States. (See Ex. D to Compl. p. 28.)  Here, Sweden has an interest in having its statute of limitations apply to this student loan collection action so that it can recover the debts.

The Court next examines California’s interest in applying its statute of limitations.  The purpose of statute of limitations is to protect parties from stale claims.   One of the exhibits to the complaint shows that Mobasser received or was approved to receive funds from CSN to study at California State University Northridge in May of 2002.  (See Ex. D to Compl. p. 28.) The exhibit also shows a California address.  (See id.) Since the funds were used to study in California, and since CSN sent this decision to Mobasser in California, California also has an interest in applying its statute of limitations. Since both jurisdictions have an interest in applying their law to this case, the Court finds that there is a true conflict.

The Court finally, examines which jurisdiction’s interest would be more impaired if its policy were subordinated to the policy of the other.  The Court notes that that Sweden has a strong interest in applying its student-loan statute of limitations.  As noted above, Sweden expanded its statute of limitations on claims concerning student loans to enhance its ability to recover payments from borrowers who live outside of Sweden.  California also has an interest in applying its statute to protect residents from stale claims.  However, applying California’s statute of limitations would impair Sweden’s interest in maintaining and collecting student loan debts. Since Sweden’s interest would be more impaired, the Court finds that Sweden’s statute of limitations applies under a governmental interest analysis.

Sufficiency under Swedish statute of limitations

As CSN recognized, certain claims are time-barred if they are not interrupted under Swedish law.  While the claim involves some loans from the 1990s, it is not clear whether these claims are time-barred under Sweden’s prior 10-year statute of limitations.  However, CSN’s claims also include loans from 2003 and the 25-year statute of limitations also covered existing student loans so long as they were not already time-barred the prior statute.  Since the complaint was filed in October of 2020, and since at least one portion of the claim does not appear to be time-barred, the demurrer is OVERRULED to the first cause of action on sufficiency founds.

When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395.)  Since Mobasser demurs to the common counts for the same reasons as the breach of contract claim and since the Court overruled the demurrer to the breach of contract claim, the Court also overruled the demurrer to the common counts.

Mobasser is ordered to file an answer only within 10 days.

1. Plaintiff filed a general request for judicial notice in this case on November 2, 2020 requesting judicial notice of the laws of Sweden and certain unpublished federal cases regarding itself.