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1 Mark F. Anderson (SBN 44787)
ANDERSON CONSUMER LAW 1/11/2021
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4014 24th Street, No. 1005
J San Francisco, CA 94114-3615
Telephone: (41 5) 321 -965 5
4 Email : mark@andersonconsumerlaw. com
5 Attomey for Defendants J & J Rebuilders Inc. & Juan Ramirez
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF BUTTE-NORTH BUTTE COURTHOUSE
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JASON STOREY, ) Case No. 20CV01657
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Plaintiff, ) DEFENDANTS'NOTICE OF
) MOTTON & MOTTON TO STAY
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v. ) THIS ACTION & MEMORANDUM
) rN suPPoRT OF MOTION
t4 J & J REBUILDERS, INC. & )
JUAN RAMIREZ, ) Date: February 10,2021
15 ) Time:9:00 M
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Defendants. ) Dept: 6
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l7 ) Judge: Hon. Stephen E. Benson
) Complaint Filed: 8119120
18 ) Trial Date: TBA
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2l TO THE DEFENDANT & HIS ATTORNEY OF RECORD:
22 PLEASE TAKE NOTICE that on February 10,2021, at 9:00 AM, or as soon thereafter as
23 counsel may be heard, in Department 6, of this Court located at 1775 Concord Avenue, Chico,
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California 95928, before the Hon. Stephen E. Benson, defendants shall move to stay this action
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pursuant to California Code of Civil Procedure $ 410.30. This motion will be based on this Court's
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OrderAfter Hearing Defendants'Motion to Quash dated December 16,z)2},the records and
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pleadings in this action, and the argument of counsel.
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Jason Storey v J & J Rebuilders [nc.,20C1V01657, Motion to Stay.
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Dated: December ll, 2021.
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ANDERSON CONSUMER LAW.
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/ Mark F. Anderson
8 MEMORANDUM IN SUPPORT OF MOTION
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Statement of Facts & Procedures to Date
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11 Plaintiff Jason Storey does business as Storey's Truck Service in Oroville. This case arose after
12 Storey purchased two new identical Cummins X-15 diesel engines from defendant J & J Rebuilders,
13 Inc. ("J & J"). J & J is a Florida corporation with has its place of busines in Hialeah, Florida.
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Storey received the first engine inApril 2020 and the second engine in June 2020.
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In his First Amended Complaint filed October 23,2020, Storey alleges that the second engine
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"presented problems" within 12 hours including a "missing seal, faulty ECM, engine noises, and
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chunks of metal in the pan" (FAC,paragraph 72).
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19 Defendants presume that Storey installed the engine in a customer's truck only to have the
20 customer return the truck to Storey after 12 hours of operation. Defendants believe the engine failed
2I because Storey was negligent in installing the rear main seal allowing loss of oil that led to the
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engine failure. Plaintiff's FAC alleges breach of contract, breach of warranties and fraud.
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On October 28,2020, plaintiff added Juan Ramirez as a defendant, the president of J &J, on an
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alter ego theory.
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26 Defendants' Terms and Conditions of Sale include a forum-selection clause. It states that "ft]his
27 agreement shall be governed by the laws of the state in which JJ's shipping facility is located" and
28 that the buyer "consents to the exclusive jurisdiction of the state and federal courts of that state for
Jason Storey v J & J Rebuilders 1nc.,20C1Y01657, Motion to Stay.
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1 any litigation which may arise out of or be related to this agreement" (Declaration of Juan Ramirez
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ISO Motion to Quash Summons, Exhibit "B" filed 11ll0l20).
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This Court Granted Plaintiff's Motion to Quash the Summons
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Defendants filed their motion to quash the summons on November 10, 2020, arguing that the
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forum-selection clause was enforceable. Plaintiff opposed the motion arguing, inter alia, that he did
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7 not have adequate notice of the Terms and Conditions. A hearing was held on Decemb er 9,2020, at
8 which time counsel appeared and argued the matter. At the conclusion of the hearing, the Court took
9 the matter under submission.
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On December 16,2020, the Court entered its OrderAfter Hearing on Defendants'Motion to
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Quash Summons. The Court rejected defendants' arguments and found that the "forum-selection
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clause in Defendants'Terms and Conditions" provided sufficient notice to the Plaintiff, is reasonable,
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and does not violated public policy. A such, the Motion is granted." In other words, the forum-
15 selection clause is enforceable. The Court did not enter an order staying or dismissing this action thus
t6 necessitating this motion.
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This Action Should be Stayed for Six Months
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CCP $ 410.30 states that "[w]hen a courl upon motion of a parly finds in the interests of justice
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that an action should be heard in a forum outside this state, the court shall stay or dismiss the action
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in whole or in part on any conditions that may be just."
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InArchibaldv Cinerama Hotels (1976) 15 Cal.3d 853, 858-859 the Supreme Coutl held that when
23 a trialcourt grants a motion based onforum non conviens,that except in extraordinary cases, the coutt
24 has no discretion to dismiss the case if the plaintiff is a California resident. Instead, the coufts are
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directed to stay the action giving the litigant a chance to pursue the action in the foreign court.
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Extraordinary cases are those in which California cannot provide an adequate forum or cases in which
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no party is a California resident.
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Jason Storey v J & J Rebuilders Inc.,20ClY0l657, Motion to Stay.
1 In almost all reported cases in which the trial courts had enforced forum-selection clauses, the
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courts had stayed the actions . Smith, Valentino & Smith, Inc. v Superior Court (1916) 17 Cal.3d 491;
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Furda v Superior Court (1984) 161 CA3d 418; Cal-State Bus Products & Services, Inc. v Ricoh
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(1993) 12 CA4lh 1,666; Intershop Communications AG v Superior Court (2002) 104 CA4th 191;
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Drulias v I't Century Bancshares, Inc. (2018) 30 CA5th 696.
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7 Defendants request an order staying this action for six months during which plaintiffwill have an
8 opportunity to litigate his action in Florida. Defendants also ask that the order state that once six
9 months have elapsed the Clerk shall dismiss this action with prejudice.
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Dated: November ll, 2020.
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ANDERSON CONSUMER LAW.
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Mark F. Anderson
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Jason Storey v J & J Rebuilders Inc., 20C1Y01651, Motion to Stay.
1 CERTIFICATE OF SERVICE
2 I am a member of the State Bar of California and not a party to this action. My business
address is 4104 24th Street, No. 1005, San Francisco, CA 941144615.
1
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On this date, I served the within
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Defendants' Notice of Motion & Motion to Stay this Action and Memorandum in
5 Support of Motion
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Pursuant to CRC 2.251 (c),I caused the documents to be sent from email address
7 mark@andersonconsumerlaw.com to the person atthe email addresses listed below. I did not
receive, within a reasonable time after transmission, any electronic message or other indication
8 the transmission was unsuccessful.
9 Lia M. Juhl-Rhodes
uhl@peterslawchico.
lj com
10 Peters, Habib, McKenna, Juhl-Rhodes & CardozaLLP
414 Salem Street, PO Box 3509
11 Chico, CA95927
t2 I declare under penalty of perjury under the laws of the State of Califomia that the
foregoing is true and correct.
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Dated: January 11,2020.
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1 CERTIFICATE OF SERVICE
2 I am a member of the State Bar of California and not a party to this action. My business
address is 4104 24th Street, No. 1005, San Francisco, CA 941144615.
J
On this date, I served the within
4
Defendants'Notice of Motion & Motion to Stay this Action and Memorandum in
5 Support of Motion
6
Pursuant to CRC 2.251 (c),I caused the documents to be sent from email address
7 mark@andersonconsumerlaw.com to the person at the email addresses listed below. I did not
receive, within a reasonable time after transmission, any electronic message or other indication
8 the transmission was unsuccessful.
9 Lia M. Juhl-Rhodes
uhl@peterslawchico.
lj com
10 Peters, Habib, McKenna, Juhl-Rhodes & Cardoza LLP
414 Salem Street, PO Box 3509
11 Chico, CA95927
t2 I declare under penalty of perjury under the laws of the of Califomia that the
foregoing is true and correct.
13
Dated: January 11,2020.
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Preview
1 Mark F. Anderson (SBN 44787) ANDERSON CONSUMER LAW 1/11/2021 2 4014 24th Street, No. 1005 J San Francisco, CA 94114-3615 Telephone: (41 5) 321 -965 5 4 Email : mark@andersonconsumerlaw. com 5 Attomey for Defendants J & J Rebuilders Inc. & Juan Ramirez 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE-NORTH BUTTE COURTHOUSE 10 JASON STOREY, ) Case No. 20CV01657 1l ) t2 Plaintiff, ) DEFENDANTS'NOTICE OF ) MOTTON & MOTTON TO STAY 13 v. ) THIS ACTION & MEMORANDUM ) rN suPPoRT OF MOTION t4 J & J REBUILDERS, INC. & ) JUAN RAMIREZ, ) Date: February 10,2021 15 ) Time:9:00 M 16 Defendants. ) Dept: 6 ) l7 ) Judge: Hon. Stephen E. Benson ) Complaint Filed: 8119120 18 ) Trial Date: TBA ) t9 ) 20 2l TO THE DEFENDANT & HIS ATTORNEY OF RECORD: 22 PLEASE TAKE NOTICE that on February 10,2021, at 9:00 AM, or as soon thereafter as 23 counsel may be heard, in Department 6, of this Court located at 1775 Concord Avenue, Chico, 24 California 95928, before the Hon. Stephen E. Benson, defendants shall move to stay this action 25 pursuant to California Code of Civil Procedure $ 410.30. This motion will be based on this Court's 26 OrderAfter Hearing Defendants'Motion to Quash dated December 16,z)2},the records and 27 pleadings in this action, and the argument of counsel. 28 Jason Storey v J & J Rebuilders [nc.,20C1V01657, Motion to Stay. 1 2 Dated: December ll, 2021. J ANDERSON CONSUMER LAW. 4 5 6 7 ../h0,(- / Mark F. Anderson 8 MEMORANDUM IN SUPPORT OF MOTION 9 Statement of Facts & Procedures to Date 10 11 Plaintiff Jason Storey does business as Storey's Truck Service in Oroville. This case arose after 12 Storey purchased two new identical Cummins X-15 diesel engines from defendant J & J Rebuilders, 13 Inc. ("J & J"). J & J is a Florida corporation with has its place of busines in Hialeah, Florida. t4 Storey received the first engine inApril 2020 and the second engine in June 2020. 15 In his First Amended Complaint filed October 23,2020, Storey alleges that the second engine t6 "presented problems" within 12 hours including a "missing seal, faulty ECM, engine noises, and T7 chunks of metal in the pan" (FAC,paragraph 72). 18 19 Defendants presume that Storey installed the engine in a customer's truck only to have the 20 customer return the truck to Storey after 12 hours of operation. Defendants believe the engine failed 2I because Storey was negligent in installing the rear main seal allowing loss of oil that led to the 22 engine failure. Plaintiff's FAC alleges breach of contract, breach of warranties and fraud. 23 On October 28,2020, plaintiff added Juan Ramirez as a defendant, the president of J &J, on an 24 alter ego theory. 25 26 Defendants' Terms and Conditions of Sale include a forum-selection clause. It states that "ft]his 27 agreement shall be governed by the laws of the state in which JJ's shipping facility is located" and 28 that the buyer "consents to the exclusive jurisdiction of the state and federal courts of that state for Jason Storey v J & J Rebuilders 1nc.,20C1Y01657, Motion to Stay. 2 1 any litigation which may arise out of or be related to this agreement" (Declaration of Juan Ramirez 2 ISO Motion to Quash Summons, Exhibit "B" filed 11ll0l20). J This Court Granted Plaintiff's Motion to Quash the Summons 4 Defendants filed their motion to quash the summons on November 10, 2020, arguing that the 5 forum-selection clause was enforceable. Plaintiff opposed the motion arguing, inter alia, that he did 6 7 not have adequate notice of the Terms and Conditions. A hearing was held on Decemb er 9,2020, at 8 which time counsel appeared and argued the matter. At the conclusion of the hearing, the Court took 9 the matter under submission. 10 On December 16,2020, the Court entered its OrderAfter Hearing on Defendants'Motion to 11 Quash Summons. The Court rejected defendants' arguments and found that the "forum-selection t2 clause in Defendants'Terms and Conditions" provided sufficient notice to the Plaintiff, is reasonable, 13 t4 and does not violated public policy. A such, the Motion is granted." In other words, the forum- 15 selection clause is enforceable. The Court did not enter an order staying or dismissing this action thus t6 necessitating this motion. T7 This Action Should be Stayed for Six Months 18 CCP $ 410.30 states that "[w]hen a courl upon motion of a parly finds in the interests of justice t9 that an action should be heard in a forum outside this state, the court shall stay or dismiss the action 20 in whole or in part on any conditions that may be just." 21 22 InArchibaldv Cinerama Hotels (1976) 15 Cal.3d 853, 858-859 the Supreme Coutl held that when 23 a trialcourt grants a motion based onforum non conviens,that except in extraordinary cases, the coutt 24 has no discretion to dismiss the case if the plaintiff is a California resident. Instead, the coufts are 25 directed to stay the action giving the litigant a chance to pursue the action in the foreign court. 26 Extraordinary cases are those in which California cannot provide an adequate forum or cases in which 27 no party is a California resident. 28 Jason Storey v J & J Rebuilders Inc.,20ClY0l657, Motion to Stay. 1 In almost all reported cases in which the trial courts had enforced forum-selection clauses, the 2 courts had stayed the actions . Smith, Valentino & Smith, Inc. v Superior Court (1916) 17 Cal.3d 491; J Furda v Superior Court (1984) 161 CA3d 418; Cal-State Bus Products & Services, Inc. v Ricoh 4 (1993) 12 CA4lh 1,666; Intershop Communications AG v Superior Court (2002) 104 CA4th 191; 5 Drulias v I't Century Bancshares, Inc. (2018) 30 CA5th 696. 6 7 Defendants request an order staying this action for six months during which plaintiffwill have an 8 opportunity to litigate his action in Florida. Defendants also ask that the order state that once six 9 months have elapsed the Clerk shall dismiss this action with prejudice. 10 Dated: November ll, 2020. 11 ANDERSON CONSUMER LAW. 12 13 t4 Mark F. Anderson 15 t6 t7 18 t9 20 21 22 23 24 25 26 27 28 Jason Storey v J & J Rebuilders Inc., 20C1Y01651, Motion to Stay. 1 CERTIFICATE OF SERVICE 2 I am a member of the State Bar of California and not a party to this action. My business address is 4104 24th Street, No. 1005, San Francisco, CA 941144615. 1 J On this date, I served the within 4 Defendants' Notice of Motion & Motion to Stay this Action and Memorandum in 5 Support of Motion 6 Pursuant to CRC 2.251 (c),I caused the documents to be sent from email address 7 mark@andersonconsumerlaw.com to the person atthe email addresses listed below. I did not receive, within a reasonable time after transmission, any electronic message or other indication 8 the transmission was unsuccessful. 9 Lia M. Juhl-Rhodes uhl@peterslawchico. lj com 10 Peters, Habib, McKenna, Juhl-Rhodes & CardozaLLP 414 Salem Street, PO Box 3509 11 Chico, CA95927 t2 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is true and correct. 13 Dated: January 11,2020. l4 15 t6 t7 18 t9 20 2t 22 23 24 25 26 27 28 1 CERTIFICATE OF SERVICE 2 I am a member of the State Bar of California and not a party to this action. My business address is 4104 24th Street, No. 1005, San Francisco, CA 941144615. J On this date, I served the within 4 Defendants'Notice of Motion & Motion to Stay this Action and Memorandum in 5 Support of Motion 6 Pursuant to CRC 2.251 (c),I caused the documents to be sent from email address 7 mark@andersonconsumerlaw.com to the person at the email addresses listed below. I did not receive, within a reasonable time after transmission, any electronic message or other indication 8 the transmission was unsuccessful. 9 Lia M. Juhl-Rhodes uhl@peterslawchico. lj com 10 Peters, Habib, McKenna, Juhl-Rhodes & Cardoza LLP 414 Salem Street, PO Box 3509 11 Chico, CA95927 t2 I declare under penalty of perjury under the laws of the of Califomia that the foregoing is true and correct. 13 Dated: January 11,2020. t4 15 t6 t7 18 t9 20 2t 22 23 24 25 26 27 28