"A court may, in its discretion, choose to refrain from exercising its jurisdiction to hear a case if the case may be more appropriately tried elsewhere. [Citations omitted] California codified this principle, known as forum non conveniens, in Code of Civil Procedure section 410.30. The moving party bears the burden of showing that the case should be tried elsewhere." (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1037- 1038; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462; CCP § 410.30(a) (where, “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.”))
“[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 regarding the applicability of the general considerations of the Stangvik [citation], factors to the question of forum non conveniens.” (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462.)
“[W]here a defendant has not appeared, section 418.10 applies and specifies the procedure for bringing a forum non conveniens motion.” (Britton v. Dallas Airmotive, Inc. (2007) 153 Cal.App.4th 127, 135.) In other words, “section 418.10 provides special procedures for preanswer forum non conveniens motions, but such motions are not precluded after a defendant has appeared.” (Id.)
As a starting point, the common law spirit of the forum non conveniens doctrine is one based in equity, “invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory course of action when it believes that the action may be more appropriately and justly tried elsewhere. (Stangvik v. Shiley Inc., 54 Cal.3d 744, 751 (1991).)
Note that “it has long been the rule . . . that an action brought by a California resident may not be dismissed on grounds of forum non conveniens except in extraordinary circumstances.” (Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408, 411.)
Defendants pursuing a forum non conveniens motion, “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: to stay or dismiss the action on the ground of inconvenient forum.” (CCP § 418.10(a)(2).) This foundation then propels California courts to analyze forum non conveniens cases in one of two ways depending on whether the dispute involved a forum selection clause.
Cases that involve clauses deemed permissive or where no clause exists, then courts focus on a more traditional forum non conveniens analysis. (Intershop Communications v. Superior Court, 104 Cal.App.4th 191, 196 (2002).)
“[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 regarding the applicability of the general considerations of the... factors to the question of forum non conveniens.” (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462 (citation omitted).)
The inquiry in such a motion is not whether some other state or country provides a better forum than does California, but whether California is a seriously inconvenient forum. (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611.)
“In applying the traditional forum non conveniens analysis, the trial court must engage in a two-step process, on which the defendant bears the burden of proof. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) In the first step, the court must determine whether a suitable alternative forum exists. (Id.) If the court finds that a suitable alternative forum exists, it must then balance the private interests of the litigants and the interests of the public in retaining the action in California.” (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 472.) The trial court’s balancing is given substantial deference. (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1038.)
Courts first determine whether the alternate forum is a suitable place for trial where suitability is based on whether the forum (a) has jurisdiction and (b) the action in that forum will not be barred by the statute of limitations. (Stangvik v. Shiley, Inc., 54 Cal.3d 744, 751 (1991); Guimel v. Gen. Elec. Co. (2009) 172 Cal.App.4th 689, 696.) “So 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.” (Aghaian v. Minassian (2015) 234 Cal.App.4th 427, 431)
Once suitability is found to exist, then courts will weigh the private interests of the litigants against the interests of the public in retaining the action for trial in California. (Stangvik, 54 Cal.3d at 751; Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147 fn. 2 (“A permissive forum selection clause is subject to traditional forum non conveniens analysis to determine whether the designated forum is a suitable alternative forum and whether the balancing of various private and public interest factors favors retaining the action 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. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)
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 v. Shiley Inc. (1991) 54 Cal.3d 744, 751; In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 691; Great Northern Ry. Co. v. Sup. Ct. (1970) 12 Cal.App.3d 105, 113 ("A motion regarding inconvenient forum involves twenty-five factors that judges may consider...").)
“Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” (Ford Motor Co. v. Ins. Co. of N. Am. (1995) 35 Cal.App.4th 604, 610-611 [citations omitted].)
“In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens pursuant to Code of Civil Procedure sections 410.30 and 418.10 [citation], but a motion based on a forum selection clause is a special type of forum non conveniens motion.” (Berg v. MTC Electronics Technologies (1998) 61 Cal.App.4th 349, 358.) Code of Civil Procedure section 410.30(a) states, “[w]hen 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.”
Code of Civil Procedure section 418.10(a)(2) states, “[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: ¶ [t]o stay or dismiss the action on the ground of inconvenient forum.” “A defendant may enforce a forum-selection clause by bringing a motion pursuant to sections 410.30 and 418.10, the statutes governing forum non conveniens motions, because they are the ones which generally authorize a trial Court to decline jurisdiction when unreasonably invoked and provide a procedure for the motion.” (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680.) “Significantly, the party opposing the enforcement of a forum-selection clause (generally the plaintiff) bears the burden of proof.” (Id.)
“California favors contractual forum selection clauses so long as they are entered into freely and voluntarily.” (Smith, Valentino & Smith, Inc. v. Superior Court, 17 Cal. 3d 491, 494 (1976); Verdugo v. Alliantgroup, L.P., 231 Cal.App.4th 141, 146 (2015).) “California courts routinely enforce forum selection clauses even where the chosen forum is far from the plaintiff's residence.” (Net2Phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583, 588.) “California law is ‘in accord with the modern trend which favors enforceability of such [mandatory] forum selection clauses. [Citations.]” (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 444.) “‘The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause. [Citations.] Where there is a mandatory forum selection clause, ‘the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. [Citation.] A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. [Citation.]’ [Citation.]” (Id. at 445.)
However, enforcement of such clauses depends on whether the clause is mandatory or permissive. If mandatory, then courts will shift the analysis to whether the clause is unfair or unreasonable which courts will typically honor, “without extensive analysis of factors relating to convenience.” (Quanta Computer, Inc. v. Japan Communications, Inc., 21 Cal.App.5th 438, 444 (2018).) When a forum selection clause is permissive, as opposed to mandatory, Courts “apply a traditional forum non conveniens analysis, considering the forum selection clause as one factor in the balancing of the private and public interests.” (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 472.) When a forum selection clause merely provides for submission to a jurisdiction and does not mandate litigation exclusively in that jurisdiction, the clause is permissive. (Id.)
Superior Court of California County of Los Angeles Department 50 SAAD HAMMAD, et al. Plaintiff, vs. ALEC GORES, et al. Defendants. Case No.: BC 624769 Hearing Date: January 18, 2017 Hearing Time: 8:30 a.m. [TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO DISMISS OR, ALTERNATIVELY, STAY PURSUANT TO CCP §410.30 (FORUM NON CONVENIENS) Background Plaintiffs Saad Hammad and Raymond LeClercq (joi...
..Equity Holdings, L.P. (“Glendon LP”), a Delaware limited partnership. This action arises out of a dispute over the interpretation of the Glendon LP Limited Partnership Agreement (the “LPA”). The operative First Amended Complaint (“FAC”) asserts causes of action for (1) breach of limited partnership agreement; (2) breach of implied covenant; (3) breach of fiduciary duty; (4) aiding and abetting br...
Jan 18, 2017
Los Angeles County, CA
SUBJECT: Motion to Dismiss or Stay Based Upon Forum Non Conveniens Moving Party: Defendants Rochelle Adler, Jeffrey Fishman, Brett Maugeri, Nicholas William Perilli, and Perilli & Stober Ltd. Resp. Party: Plaintiff Matthew Davidson The motion to dismiss or stay based upon forum non conveniens is DENIED. BACKGROUND: Plaintiff Matthew Davidson commenced this action on April 5, 2019. On June 28,...
..of Corp. Code §§ 25401 and 25501; (9) violation of Corp. Code § 25504; (10) violation of Corp. Code § 17704.41; (11) unpaid wages; (12) unfair business practices; and (13) declaratory relief. Plaintiff alleges that he is an experienced graphic designer who was looking to break into the CBD industry and was introduced to Defendants Adler, Fishman, and Maugeri under the pretense that Adler was loo...
Jul 22, 2019
Los Angeles County, CA
Background According to the allegations, defendant is producing a television series that has not yet aired and that would broadcast live concerts by, and interviews with, famous performers. Defendant proposed to plaintiff William Adams’ representatives that defendant would pay $250,000 to film Adams’ May 11, 2016 concert in London and use the filmed material to promote the series. Defendant repre...
..television show agreement. As the concert date was approaching, defendant told Adams’ representatives that it could not access the necessary funds that late in the day. They discussed the idea of Adams making a short term loan of $300,000 to cover the costs that were preventing defendant from paying the $250,000. Plaintiff alleges that defendant, however, had no intention of paying the negotiate...
Jun 22, 2017
Los Angeles County, CA
Defendants American Wholesale Insurance Holding Company, LLC and AmWINS Group, LLC’s Motion to Dismiss is DENIED. Davidian objects to the agreements that Defendants have produced by the declaration of Katie Katzman, Human Resources Business Partner for Group. (Katzman Decl. ¶ 1.) The court generally agrees with Davidian that Katzman did not provide sufficient information to authenticate the agree...
..ith sole and exclusive jurisdiction over this case. (Motion at p. 2.) The law in this area is well-established. In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens, but a motion based on a forum selection clause is a special type of forum non conveniens motion. The factors that apply generally to a forum non conveniens moti...
May 17, 2018
Los Angeles County, CA
Calendar Line Nos. 1-2 Motions to Quash Service of Summons and/or Dismiss for Inconvenient Forum or to Stay Action or Transfer/Change Venue by Defendant Oakwood Systems Group, Inc. Factual and Procedural Background This is a collection action. Plaintiff Creditors Adjustment Bureau, Inc. (“Plaintiff”) is a collection agency and corporation organized and existing under the laws of the State of Ca...
..t, which is the subject of this lawsuit, has been assigned to Plaintiff for collection purposes. (Id. ¶ 4.) On May 14, 2019, Plaintiff filed the operative Complaint against defendant Oakwood alleging causes of action for: (1) open book account; (2) account stated; (3) reasonable value; and (4) breach of contract. The following motions by defendant Oakwood are presently before the Court: (1) moti...
Dec 05, 2019
Santa Clara County, CA
# 9. Galaxy Export Link v. Mediterranean Shipping Company (USA) Inc., et al. Case No.: 18CMCV00093 Matter on calendar for: Demurrer to FAC Tentative ruling: Background This is a breach of contract action. Plaintiff Galaxy Export Link alleges to have contracted with Defendants Mediterranean Shipping Company (USA), Inc. (“MSC”) and Transatlantic Products and Shipping Services for the shipment o...
..int as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)...
Nov 12, 2019
Personal Injury/ Tort
Salvatore Sirna or Gary Y. Tanaka
Los Angeles County, CA
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Jul 08, 2021
Kern County, CA
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