The opinion
Filed 2/17/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SEDA GALSTIAN AGHAIAN et al., B252326
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC498691)
v.
SHAHEN MINASSIAN,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County. Kevin
Brazile, Judge. Reversed and remanded.
Horvitz & Levy, Mitchell C. Tilner and Steven S. Fleischman; Ervin Cohen &
Jessup and Allan B. Cooper for Plaintiffs and Appellants Seda Galstian Aghaian,
Andranik Galstian and Aida Galstian Norhadian.
John Derrick for Defendant and Respondent Shahen Minassian.
_____________________________
Seda Galstian Aghaian, Aida Galstian Norhadian, and Andranik Galstian
(Plaintiffs) challenge the trial court’s order staying this action on the ground of forum non
conveniens. The trial court found the matter to be more appropriately heard in Iran.
The sole issue on appeal is whether Iran is a suitable alternative forum. It is not.
Thus, we reverse the court’s order.
FACTS
Plaintiffs are the children and heirs of Gagik Galstian and Knarik Galstian.1
Gagik and Knarik owned a number of properties in Iran, but were forced to abandon them
in September 1978, when the family fled to Los Angeles after the overthrow of the Shah.
In or about 1991, the Galstians learned they could recover their properties through a man
named Jalinous, who was their friend and a lawyer in Iran. To that end, Gagik executed a
series of powers of attorney naming Jalinous and others as his attorneys in fact over the
properties in Iran. In February of 1996, the Iranian government issued a written ruling to
allow Gagik and his family to enter and leave Iran, reclaim all of their properties, and
freely engage in property transactions. The parties then began the process of reclaiming
and selling Gagik’s properties.
By mid-2003, defendants Shahen Minassian and Nader Izadi held the powers of
attorney for the remaining properties. They executed a general quitclaim deed
transferring all of Gagik’s remaining properties to themselves for little or no
consideration in 2008. Minassian also deeded to himself at least one, and possibly more,
of Knarik’s properties. Gagik discovered the transfers on or about January 7, 2010, and
demanded that title be returned to him. Gagik then hired an Iranian attorney in February
2010, who pressed criminal charges against Minassian in Iran relating to certain
properties. In a separate proceeding in 2012, another Iranian lawyer representing Gagik
obtained a copy of the 2008 general quitclaim deed granting all of Gagik’s property to
Minassian and Izadi. Gagik and Knarik died in 2012.
1
For ease of reference, we will refer to members of Galstian family by their first
names.
2
Plaintiffs filed suit against Minassian and Izadi in the instant action on January 7,
2013, alleging the above facts and asserting causes of actions for breach of fiduciary
duty, accounting, and conversion. Plaintiffs sought monetary damages and injunctive
relief. Minassian moved to dismiss or, in the alternative, stay the action based on forum
non conveniens. Minassian argued the Iranian civil court provides a suitable forum for
an action brought by Iranian citizens against Iranian citizens, involving a dispute over
real properties located in Iran. Further, the trial court lacks the power to enforce an order
directing the transfer of real property in Iran and lacks jurisdiction over Izadi, who
resides in Iran and has indicated he will not submit to the jurisdiction of a California
court. The trial court stayed the action pursuant to Code of Civil Procedure section
410.30, subdivision (a), which provides that a court shall stay or dismiss an action when
it finds that the interest of substantial justice is served by having the action heard in a
forum outside the state. Plaintiffs timely appealed.
DISCUSSION
I. Applicable Law
The doctrine of forum non conveniens allows courts to “exercise their
discretionary power to decline to proceed in those causes of action which they conclude,
on satisfactory evidence, may be more appropriately and justly tried elsewhere.”
(Price v. Atchison, T. & S. F. Ry. Co. (1954) 42 Cal.2d 577, 584.) The doctrine of forum
non conveniens is codified in Code of Civil Procedure section 410.30, which provides:
“(a) 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.”
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. (Stangvik v. Shiley Inc. (1991)
54 Cal.3d 744, 751-752 (Stangvik).) “[T]he defendant, as the moving party, bears the
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burden of proof. The granting or denial of such a motion is within the trial court’s
discretion, and substantial deference is accorded its determination in this regard.” (Ibid.)
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. (Guimei v. General Electric
Co. (2009) 172 Cal.App.4th 689, 696 (Guimei); Judicial Council com., 14 West’s Ann.
Code Civ. Proc. (1973 ed.) § 410.30, pp. 492-493.) “[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.” (Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126,
132 (Shiley).) The alternative forum does not become unsuitable simply because the law
is less favorable or recovery is more difficult, if not impossible. (Guimei, supra, at p.
696.)
In “ ‘rare circumstances,’ ” an alternative forum may be found unsuitable if it
“provides no remedy at all.” (Shiley, supra, at p. 133; Piper Aircraft Co. v. Reyno (1981)
454 U.S. 235, 254-255, fn. 22.) 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. (Shiley, supra, at
pp. 133-134.) The court in Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, explained
that “a forum is suitable if the defendant is amenable to process there, there is no
procedural bar to the ability of courts of the foreign jurisdiction to reach the issues raised
on their merits (or, if there is, the advantage of the bar – typically, the statute of
limitations – is waived by defendants), and adjudication in the alternative forum is by an
independent judiciary applying what American courts regard, generally, as due process of
law.” (Id. at p. 711.)
In Rasoulzadeh v. Associated Press (S.D.N.Y. 1983) 574 F.Supp. 854, 861
(Rasoulzadeh), the court held that an alternative forum in Iran was not available since
Iranian courts were administered by Iranian mullahs and the plaintiffs were likely to be
shot if they returned to Iran. Rasoulzadeh, in particular, has been cited by California
courts as an example of the “rare circumstance” in which an alternative forum provided
no remedy at all. (See Guimei, supra, 172 Cal.App.4th at p. 697; Chong v. Superior
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Court (1997) 58 Cal.App.4th 1032, 1037; Shiley, supra, 4 Cal.App.4th at p. 134, fn. 4.)
Similarly, in Bank Melli Iran v. Pahlavi (9th Cir. 1995) 58 F.3d 1406, 1410 (Pahlavi),
banks sought to enforce judgments they obtained in Iran against the sister of the former
Shah. The Ninth Circuit declined to recognize the Iranian court judgments because the
defendant “could not expect fair treatment from the courts of Iran, could not personally
appear before those courts, could not obtain proper legal representation in Iran, and could
not even obtain local witnesses on her behalf.” In short, the defendant could not obtain
due process of law in the Iranian courts. (Id. at p. 1413.)
II. Evidence of Suitability of Alternate Forum
Here, the parties submitted their own declarations as well as expert declarations
regarding the Iranian civil court system. Minassian declared that he was a citizen of Iran
and spent most of his time there. As a condition of a dismissal or stay pursuant to forum
non conveniens, he was willing to stipulate to the jurisdiction of the Iranian civil courts
and to waive or toll any applicable statute of limitations. Reza Athari, an attorney who
has been licensed to practice law in Iran since 1976 and in California since 1996,
submitted a declaration in support of Minassian’s motion. Athari described the Iranian
civil court structure and the pertinent procedures involved, including that testimony is
taken under oath and subject to civil and criminal penalties for perjury. Athari also stated
civil courts in Iran, “like those in France and Belgium, are based on an ‘inquisitorial
system’ as well as a limited form of ‘adversarial system’ as used in the United Kingdom
and the United States.”
According to Athari, “Iranian law is based on a mix of civil law, with its historical
roots in French and Belgian civil laws. However, all laws must not be in direct conflict
with clearly defined Islamic tenets. Almost all procedures followed in California civil
suits are available and followed in Iranian civil courts,” including the ability to file suit,
state causes of action, answer, demurrer, challenge jurisdiction and/or venue, challenge
the judge based on actual bias, issue oral and written discovery, subpoena documents,
things and persons, hire and present experts, challenge experts opinions, argue before the
courts and present briefs, appeal, and seek a retrial. Plaintiffs could assert their claims for
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breach of fiduciary duty, accounting, conversion and injunctive relief in the civil court in
Iran. As a result, Athari opined that “[t]he Iranian civil court is a suitable alternative
forum for the adjudication of the claims asserted by Plaintiffs in the US Action.” He also
reviewed documents indicating Plaintiffs have previously sought to be acknowledged as
the heirs to Gagik in Iranian courts and succeeded. Finally, he explained how the
balancing of interests in the second prong favored litigating the matter in Iran since most
of the witnesses, documents and properties were located there.
Plaintiffs’ opposition included declarations from plaintiff Seda Aghaian,
Mehrangiz Kar, and Patrick Clawson. Kar, a human rights lawyer from Iran, opined that
forcing Plaintiffs to bring their action in Iran would be “unjust and inappropriate because
the legal system in Iran does not afford the same rights and protections to Plaintiffs as the
American legal system does, is biased against women such as Plaintiffs Aghaian and
Norhadian, requires the application of Islamic law to non-Muslims, and is also biased
against those who left Iran in or around the time of the Islamic revolution in 1979 but
who are now seeking to establish their rights in and to property in Iran.” Kar further
believed the judiciary was not independent and stated judges often were compelled to
“handle a certain case in a way that benefits one party over another, despite the facts of
the case.” Likewise, “[t]he same pressures, corruption and unofficial relationships that
can affect the decisions of judges can also affect the behavior of attorneys.” Aghaian
confirmed the Galstians are not Muslims and therefore, would be subject to the laws of a
religion to which they did not belong since no law in Iran can be in conflict with Islamic
law.
Plaintiffs also submitted the declaration of Patrick Clawson, the director of
research of the Washington Institute for Near East Policy, who has been previously
designated and qualified as an expert on issues relating to Iran. Crawson opined that the
Iranian legal system is heavily influenced by the executive and religious authorities and
therefore, lacks independence. Crawson cited to numerous sources that showed Iranian
courts discriminate on grounds of sex, religion, and political opinion. Further, Crawson
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opined that Iranian courts are corrupt and do not guarantee the right to representation by a
qualified lawyer.
Noting that “[t]his is not a clear and obvious decision,” the trial court found Iran to
be a suitable alternative forum based on all the evidence presented. It was persuaded by
Athari’s declaration. However, the trial court gave “great weight” to Clawson’s
declaration based on his “exceptional qualifications.” The trial court found Clawson’s
opinion that the Iranian courts are not always guided by the law and that they
discriminate based on sex and religion to be particularly compelling.
It reasoned, “[h]owever, [that] courts are not to deny motions for forum non
conveniens based on evidence that the alternative court has less favorable laws; the scales
are only tipped where the alternative forum provides no remedy at all. [Citation.]
The Court declines to find this to be such a situation. In [Rasoulzadeh], the court
declined to find Iran to be a suitable alternative forum but only because plaintiffs there
were likely to be shot if they returned to Iran. Here, the evidence is that Plaintiffs’ father
had safely traveled to and from Iran a number of times before he became to[o] infirm to
do so; Plaintiffs have not presented evidence that they are high-profile persons in Iran,
like the plaintiffs in Rasoulzadeh, such that they would be subject to travel restrictions or
threats to their safety if they returned.” The trial court then balanced the private and
public factors, finding they generally weighed in favor of granting the motion.
III. Standard of Review
Although the expert declarations submitted by the parties reach opposing
conclusions about whether Iran is a suitable alternative forum, they do not present
conflicting views of the Iranian court system. Plaintiffs’ experts discuss the judiciary’s
lack of independence, its bias against women and non-Muslims, and its corruption.
Minassian’s expert does not address these issues. He instead discussed the procedures
available to plaintiffs in an Iranian court, such as the ability to file a complaint, seek
appellate review, obtain testimony, and present evidence. Because there is no conflict in
the evidence, de novo review is appropriate here. When the facts are not disputed, the
effect or legal significance of those facts is a question of law, and the appellate court is
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free to draw its own conclusions, independent of the ruling by the trial court.
(Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
IV. Analysis
Here, Minassian affirmed he would submit to the jurisdiction of Iranian courts and
waive any statute of limitations defense. Athari described the procedures followed in
Iranian courts and asserted that remedies for Plaintiffs’ grievances may be had in Iran.
These facts alone are insufficient to render Iran a suitable alternative forum when Iran
lacks “an independent judiciary applying what American court regard, generally, as due
process of law.” (Boaz v. Boyle & Co, supra, 40 Cal.App.4th at p. 711.) The Due
Process Clause confers on individuals a constitutional right to be free from discrimination
based on gender or religion. (Davis v. Passman (1979) 442 U.S. 228, 235; Townsend v.
Superior (1975) 15 Cal.3d 774, 789.) Minassian fails to provide evidence that Plaintiffs
can expect fair treatment from the Iranian courts.
Presbyterian Church of Sudan v. Talisman Energy (S.D.N.Y. 2003) 244
F.Supp.2d 289, illustrates the evidentiary burden that Minassian must carry. There, the
defendant, who was accused of committing human rights violations in connection with its
oil exploration activities in Sudan, moved to dismiss on the ground of forum non
conveniens. It suggested the plaintiffs bring their action in Sudan, where the alleged
violations occurred. The defendant submitted an affidavit from a law professor detailing
the procedures and jurisprudence of the Sudanese judicial system. The district court
found this evidence insufficient to grant the motion to dismiss: “Notably absent from the
affidavit, however, is any statement indicating that the Sudanese judicial system is fair
and free from corruption, and that plaintiffs, who are alleging that Sudan committed
genocide and war crimes, could get a fair trial. Plaintiffs’ expert . . . addresses this point,
and notes that plaintiffs, who are non-Muslims, enjoy greatly reduced rights in Sudan
under the system of Islamic law (Shari’a) in place. [Citation.] These reduced rights
include a total lack of legal personality for plaintiffs who practice traditional African
religions, and diminished testimonial competence for Christians. [Citation.] [The expert]
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concludes that ‘the trial of this case in Sudan will result in a total failure of justice.’ ”
(Id. at pp. 335-336.)
Similarly, 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 Clawson and Kar 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. Athari’s declaration
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
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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. Aghaian, one of Gagik’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.
In an effort to bypass a substantive analysis, Minassian contends the record is
incomplete because a reporter’s transcript is not in the record. As a result, this court
“must indulge all intendments and presumptions to support the challenged ruling.”
(Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1271.) California Rules of
Court provide that an appellant may “elect[] to proceed without a reporter’s transcript”
and one is only required if “an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court . . . .” (Cal. Rules of Court,
rules 8.120(b), 8.130(a)(4).) If we did determine that a reporter’s transcript was
necessary “to prevent a miscarriage of justice,” we could, on our own, order the record
augmented with a reporter’s transcript, with the cost to be borne by the plaintiff.
(Cal. Rules of Court, rules 8.130(a)(4), 8.155.)
As discussed above, there is insufficient evidence to show Iran is a suitable
alternative forum. Minassian admits “the unreported hearing was not an evidentiary one
at which sworn witnesses took the stand” and instead was one in which written evidence,
already submitted, was considered and argued. All of the parties’ declarations and
exhibits are included in the Plaintiffs Appendix and there is no indication any evidence is
missing from it. Accordingly, we can indulge in no presumption or intendment which
would conjure up evidence where there is none.
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DISPOSITION
The challenged order is reversed and the matter is remanded to the trial court for
further proceedings. Plaintiffs are awarded costs on appeal.
CERTIFIED FOR PUBLICATION
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.
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