Filed 2/14/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BARRY KORMAN, B290681
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC674062)
v.
PRINCESS CRUISE LINES,
LTD.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Michael J. Raphael, Judge. Affirmed.
Nguyen Lawyers, Christine J. Gonong and Minh T. Nguyen for
Plaintiff and Appellant.
Flynn, Delich & Wise, Barbara E. Kennedy and Lisa M. Conner
for Defendant and Respondent.
Plaintiff and appellant Barry Korman appeals from an order of
the trial court dismissing his complaint against respondent Princess
Cruise Lines, Ltd. for forum non conveniens. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 2017, appellant sued respondent based on injuries
appellant suffered while he was a passenger on a cruise ship operated
by respondent. Appellant alleged that he was injured during a
February 2017 cruise on the “Crown Princess,” a cruise ship traveling
from Buenos Aires, Argentina to Santiago, Chile. He alleged that
respondent was aware of an impending storm, but the crew of the ship
negligently failed to warn its passengers of the storm and failed to close
the gym and spa on the ship. On February 11, 2017, the cruise ship
“experienced high seas and tipped” while appellant was using the spa,
causing him to fall and break his hip, and resulting in permanent
injuries. The crew closed the gym and spa after appellant fell.
Appellant filed a complaint in Los Angeles Superior Court alleging
negligence, res ipsa loquitur, and breach of contract. Respondent’s
counsel informed appellant’s counsel that the complaint had been filed
in the wrong forum, citing the forum selection clause in the Passage
Contract governing the cruise and forwarding a copy of the contract to
appellant’s counsel.1
1 The parties are represented on appeal by the same counsel who
represented them below.
2
The forum selection clause contained in the passage contract
stated in full: “(B) Forum and Jurisdiction for Legal Action: [¶]
(i) Claims for Injury, Illness or Death: All claims or disputes involving
Emotional Harm, bodily injury, illness to or death of any Guest
whatsoever, including without limitation those arising out of or relating
to this Passage Contract or Your Cruise, shall be litigated before the
United States District Courts for the Central District of California in
Los Angeles, or as to those lawsuits over which the Federal Courts of
the United States lack subject matter jurisdiction, before a court located
in Los Angeles County, California, U.S.A., to the exclusion of the courts
of any other country, state, city, municipality, county or locale. You
consent to jurisdiction and waive any objection that may be available to
any such action being brought in such courts.” The passage contract
also required any claim for personal injury to be filed within one year of
the date of the injury.
On October 27, 2017, respondent specially appeared in the
superior court to file a motion to stay or dismiss the action based on
forum non conveniens under Code of Civil Procedure sections 410.30
and 418.10.2 Appellant opposed the motion, arguing that section 410.30
did not apply because the case was being litigated in a forum within
California.3 He further argued that respondent had not shown that it
2 Unspecified statutory references will be to the Code of Civil Procedure.
3 The statute provides: “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.” (§ 410.30, subd. (a).)
3
would be inconvenient for any witnesses or parties to adjudicate the
case in California state court. (See § 418.10, subd. (a)(2).)4 Appellant
also argued that respondent’s failure to remove the action to federal
court within 30 days, as required by 28 United States Code section
1446, subdivision (b)(1) (28 U.S.C. §), deprived the federal court of
subject matter jurisdiction over the case. Finally, appellant contended
that, although a passage contract is governed by federal maritime law,
state courts are not precluded from adjudicating such claims, and that
the forum selection clause was unenforceable.
On February 1, 2018, the trial court conditionally granted
respondent’s motion and stayed the action. The court found that the
forum selection clause was mandatory and required the parties to select
the federal court “if that forum has subject matter jurisdiction.”
Because “[t]here appears to be no dispute here that the federal court
has subject matter jurisdiction over this lawsuit, at least at its outset,”
the court concluded that the action should have been filed in federal
court in Los Angeles. The court further concluded that enforcement of
the forum selection clause was not unreasonable. The court
acknowledged appellant’s “argument that the clause should not be
enforced where the defendant had a chance to remove the case and did
4 The statute provides in pertinent part: “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.” (§ 418.10, subd. (a)(2).)
4
not do so,” stating that this was “a close decision.” Nonetheless, the
court concluded that enforcement was not unreasonable because
appellant still had the opportunity to litigate in federal court.5 The
court stayed the action until a March 15, 2018 hearing.
On February 26, 2018, the parties filed a joint status report,
indicating that appellant agreed to refile in federal court and asking the
court to continue the hearing date. The court continued the hearing to
April 19, 2018.
At the April 19 hearing, appellant’s counsel stated that appellant
had decided not to file suit in federal court. The court granted
respondent’s motion to dismiss for forum non conveniens, lifted the stay
and dismissed the case without prejudice.
DISCUSSION
I. Absence of Reporter’s Transcript
As an initial matter, we consider whether the absence of a
reporter’s transcript warrants affirmance based on an inadequate
record pursuant to Foust v. San Jose Construction Co., Inc. (2011) 198
Cal.App.4th 181 (Foust). “[D]ismissal of an appeal may be warranted in
the absence of a reporter’s transcript when such a transcript is
necessary for meaningful review. [Citation.]” (Bel Air Internet, LLC v.
Morales (2018) 20 Cal.App.5th 924, 933 (Bel Air).) However, “California
5 The court noted that respondent’s counsel agreed to waive the one-year
limitations period contained in the passage contract in order for appellant to
file in federal court.
5
Rules of Court, rule 8.120(b) requires a reporter’s transcript on appeal
only if ‘an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court . . . .’
California Rules of Court, rule 8.130(a)(4) provides that an appellant
may ‘elect[] to proceed without a reporter’s transcript.’” (Chodos v. Cole
(2012) 210 Cal.App.4th 692, 699 (Chodos).)
In Foust, supra, 198 Cal.App.4th 181, the appellant appealed from
a judgment entered following a three-day court trial. On appeal, he
failed to provide “a reporter’s transcript from his court trial or any other
adequate statement of the evidence.” (Id. at p. 186.) Instead, he
provided a partial clerk’s transcript, which contained his complaint, his
amended complaint, the statement of decision, the judgment, and two of
the exhibits introduced at trial. Because the appellant’s challenge to
the trial court’s findings relied on his trial testimony, the court found
the inadequate record to be “fatal” to his appeal. (Ibid.)
By contrast, in Bel Air, the court held that the appellants did not
forfeit their appeal by failing to provide a reporter’s transcript of the
trial court’s hearing on their motion to strike. (Bel Air, supra, 20
Cal.App.5th at p. 933.) The court reasoned that respondent “does not
claim that the hearing included any live testimony or the introduction
of any other evidence. Nor does it identify any particular matter
addressed at the hearing that this court must consider to decide the
appeal. [Citation.] While a record of the hearing would have been
helpful to understand the trial court’s reasoning, it is not necessary
here where our review is de novo and the appellate record includes the
6
trial court’s written orders and all the evidentiary materials germane to
Appellants’ motion. [Citation.]” (Ibid.)
Similarly, in Chodos, the court held that a reporter’s transcript
was not required because “[n]one of the parties relies upon the oral
argument before the trial court, and we decide a purely legal issue
based on the filings before the trial court—as did the trial court.”
(Chodos, supra, 210 Cal.App.4th at p. 699.)
Unlike in Foust, appellant’s challenge to the trial court’s decision
does not rely on any evidence presented or the trial court’s findings
made at the hearing. Nor does respondent rely on any of the trial
court’s findings or statements made at the hearing. (See Chodos, supra,
210 Cal.App.4th at p. 699.) Instead, similar to Bel Air, respondent
“does not claim that the hearing included any live testimony or the
introduction of any other evidence,” and does not “identify any
particular matter addressed at the hearing that this court must
consider to decide the appeal.” (Bel Air, supra, 20 Cal.App.5th at p.
933.) As Chodos explained, a reporter’s transcript is required on appeal
“only if ‘an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court . . . .’”
(Chodos, supra, 210 Cal.App.4th at p. 699; Cal. Rules of Court, rule
8.120(b).) The lack of a reporter’s transcript accordingly does not
require affirmance based on an inadequate record.
7
II. Forum Non Conveniens
A. Applicability of Sections 410.30 and 418.10
“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.” (§ 410.30, subd.
(a).) “Section 410.30 is a codification of the doctrine of forum non
conveniens [citation], but the principles governing enforcement of a
forum selection clause are not the same as those applicable to motions
based on forum non conveniens. [¶] In California, ‘forum selection
clauses are valid and may be given effect, in the court’s discretion and
in the absence of a showing that enforcement of such a clause would be
unreasonable.’ [Citation.] [¶] The burden of proof is on the plaintiff,
and the factors involved in traditional forum non conveniens analysis do
not control. [Citation.] ‘Instead, the forum selection clause is presumed
valid and will be enforced unless the plaintiff shows that enforcement of
the clause would be unreasonable under the circumstances of the case.’
[Citations.] . . . [¶] We review the trial court’s decision for abuse of
discretion. [Citation.]”6 (Trident Labs, Inc. v. Merrill Lynch
Commercial Finance Corp. (2011) 200 Cal.App.4th 147, 153-154.) On
6 “There is a split of authority regarding the appropriate standard of
review on whether a forum selection clause should be enforced through a
motion to dismiss for forum non conveniens.” (Quanta Computer Inc. v.
Japan Communications Inc. (2018) 21 Cal.App.5th 438, 446.) The majority of
cases apply the abuse of discretion standard, not the substantial evidence
standard. (Id. at pp. 446-447.)
8
the other hand, where “no conflicting extrinsic evidence has been
presented, the interpretation of a forum selection clause is a legal
question that we review de novo. [Citation.]” (Animal Film, LLC v.
D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 471 (Animal
Film).) No matter what standard of review we apply, we conclude the
trial court properly granted the motion.
Appellant contends that sections 410.30 and 418.10 do not apply
under the plain terms of the statutes because the forum selection clause
here, unlike most such clauses, designates not only a geographical
location but requires litigation in federal court. He points out that
section 410.30 requires stay or dismissal if the court finds that the
action “should be heard in a forum outside this state” (§ 410.30, subd.
(a)), and that his action was filed within the state, not outside the state.
He further contends that section 418.10 permits a stay or dismissal “on
the ground of inconvenient forum,” but there is no indication here that
it would be “inconvenient” for any witnesses or parties to litigate in
state court, rather than federal court. Appellant’s argument is contrary
to established law.
“Where a plaintiff brings suit in California, the potential
applicability of a contractual forum selection clause is raised by the
defendant through a motion to dismiss on grounds of forum non
conveniens.” (Bushansky v. Soon-Shiong (2018) 23 Cal.App.5th 1000,
1005 (Bushansky).) “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
9
unreasonably invoked and provide a procedure for the motion.
[Citations.]” (Cal-State Business Products & Services, Inc. v. Ricoh
(1993) 12 Cal.App.4th 1666, 1680 (Cal-State); see also Lu v. Dryclean-
U.S.A. of California, Inc. (1992) 11 Cal.App.4th 1490, 1492, fn. 1 [“‘The
enforceability of a forum selection clause is properly raised by a motion
to stay or dismiss under Code of Civil Procedure section 410.30, as it is
a request to the court to decline jurisdiction.’”].) Thus, although
appellant’s action was not filed “in a forum outside this state” (§ 410.30,
subd. (a)), the statutes governing forum non conveniens motions apply
here to determine the enforceability of the forum selection clause.
B. Permissive or Mandatory
“A passage contract on a cruise ship is a maritime contract, and
its interpretation is governed exclusively by maritime or admiralty law.
[Citations.] The validity of a passage contract provision is to be
interpreted by the general maritime law of the United States, not state
law. [Citation.] State courts, however, have concurrent jurisdiction
with federal courts to entertain actions governed by maritime law.
[Citations.]” (Hayman v. Sitmar Cruises, Inc. (1993) 14 Cal.App.4th
1499, 1504; see also Schlessinger v. Holland America (2004) 120
Cal.App.4th 552, 557 (Schlessinger) [“Enforceability of a forum selection
clause in a passenger cruise contract ‘is a case in admiralty, and federal
law governs the enforceability of the forum-selection clause’”].) “The
validity of a forum selection clause is determined under the usual rules
governing the enforcement of contracts in general. [Citation.]” (P & S
10
Business Machines, Inc. v. Canon USA, Inc. (11th Cir. 2003) 331 F.3d
804, 807.)
“In a contract dispute in which the parties’ agreement contains a
forum selection clause, a threshold issue in a forum non conveniens
motion is whether the forum selection clause is mandatory or
permissive. A mandatory clause ordinarily is ‘given effect without any
analysis of convenience; the only question is whether enforcement of the
clause would be unreasonable.’ [Citation.] But, if ‘the clause merely
provides for submission to jurisdiction and does not expressly mandate
litigation exclusively in a particular forum, then the traditional forum
non conveniens analysis applies. [Citation.]’ [Citation.]” (Animal Film,
supra, 193 Cal.App.4th at p. 471.)
We conclude that the forum selection clause at issue here is
mandatory, not permissive. “To be mandatory, a clause must contain
language that clearly designates a forum as the exclusive one.”
(Council of Laborers v. Pittsburg-Des Moines Steel (9th Cir. 1995) 69
F.3d 1034, 1037.) The clause here states: “All claims or disputes
involving Emotional Harm, bodily injury, illness to or death of any
Guest whatsoever, including without limitation those arising out of or
relating to this Passage Contract or Your Cruise, shall be litigated
before the United States District Courts for the Central District of
California in Los Angeles, or as to those lawsuits over which the
Federal Courts of the United States lack subject matter jurisdiction,
before a court located in Los Angeles County, California, U.S.A., to the
exclusion of the courts of any other country, state, city, municipality,
county or locale. You consent to jurisdiction and waive any objection
11
that may be available to any such action being brought in such courts.”
(Italics added.)
Although the forum selection clause allows litigation in state court
if the federal court does not have subject matter jurisdiction, a phrase
such as “shall be litigated” generally has been construed to indicate that
the forum selection clause is mandatory. (See, e.g., Docksider, Ltd. v.
Sea Technology, Ltd. (9th Cir. 1989) 875 F.2d 762, 763 [clause stating
that “‘Venue of any action brought hereunder shall be deemed to be in
Gloucester County, Virginia’” mandatory]; Verdugo v. Alliantgroup, L.P.
(2015) 237 Cal.App.4th 141, 146 (Verdugo) [forum selection clause
mandatory where it stated, “‘proper subject matter and personal
jurisdiction shall be had solely in [the] State of Texas’”]; Bushansky,
supra, 23 Cal.App.5th at p. 1011 [finding clause mandatory where it
stated, “‘the Court of Chancery of the State of Delaware (or, if such
court lacks jurisdiction, any other state or federal court located within
the State of Delaware) shall be the sole and exclusive forum . . . for any
derivative action . . . .’”]; Cal-State, supra, 12 Cal.App.4th at p. 1672, fn.
4 [“‘[A]ny appropriate state or federal district court located in the
Borough of Manhattan, New York City, New York shall have exclusive
jurisdiction over any case of controversy arising under or in connection
with this Agreement’” mandatory].) The language thus indicates that
the forum selection clause is mandatory and requires that suit be
brought in federal court. Litigation in state court is allowed only if the
federal court does not have subject matter jurisdiction.
12
C. Reasonableness
“When a case involves a mandatory forum selection clause, it will
usually be given effect unless it is unfair or unreasonable. [Citation.]”
(Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th
651, 661.) “Both California and federal law presume a contractual
forum selection clause is valid and place the burden on the party
seeking to overturn the forum selection clause. [Citations.]”
(Schlessinger, supra, 120 Cal.App.4th at p. 558.) “It is well settled that
parties may contract in advance to select the forum in which their
disputes will be adjudicated. [Citation.]” (National Auto Lenders, Inc.
v. SysLOCATE, Inc. (S.D.Fla. 2010) 686 F.Supp.2d 1318, 1322
(National Auto Lenders).)
“In the context of forum selection clauses, enforcement is
considered unreasonable where ‘the forum selected would be
unavailable or unable to accomplish substantial justice’ or there is no
‘rational basis’ for the selected forum. [Citation.]” (Drulias v. 1st
Century Bancshares, Inc. (2018) 30 Cal.App.5th 696, 707 (Drulias).)
“‘“‘Mere inconvenience or additional expense is not the test of
unreasonableness . . .’” for a mandatory forum selection clause.
[Citation.]’ [Citation.] A clause is reasonable if it has a logical
connection with at least one of the parties or their transaction.”
(Verdugo, supra, 237 Cal.App.4th at p. 147.)
“A forum selection clause need not be subject to negotiation to be
enforceable. [Citations.] Rather, a forum selection clause contained in
a contract of adhesion, and thus not the subject of bargaining, is
13
‘enforceable absent a showing that it was outside the reasonable
expectations of the weaker or adhering party or that enforcement would
be unduly oppressive or unconscionable.’ [Citations.]” (Drulias, supra,
30 Cal.App.5th at pp. 707-708.) “This rule ‘accords with ancient
concepts of freedom of contract and reflects an appreciation of the
expanding horizons of American contractors who seek business in all
parts of the world.’ [Citation.]” (Net2Phone, Inc. v. Superior Court
(2003) 109 Cal.App.4th 583, 588.)
We initially note that the complaint alleged that “Jurisdiction and
venue exist in Los Angeles Superior Court pursuant to a forum selection
clause in the passenger ticket Plaintiff purchased from [respondent].
This forum selection clause has been upheld by [Carnival Cruise Lines,
Inc. v. Shute (1991) 499 U.S. 585 (Shute)].” Appellant therefore
conceded he had notice of the forum selection clause and that such a
clause had been upheld by the United States Supreme Court.
In Shute, 499 U.S. 585, the court addressed the enforceability of a
forum selection clause contained in tickets issued by petitioner Carnival
Cruise Lines, Inc. to its passengers. The clause required litigation in
the State of Florida, but the respondent, an injured passenger, filed suit
in the United States District Court for the Western District of
Washington. In evaluating the reasonableness of the forum selection
clause, the court acknowledged that no cruise passenger “would
negotiate . . . the terms of a forum-selection clause in an ordinary
commercial cruise ticket. Common sense dictates that a ticket of this
kind will be a form contract the terms of which are not subject to
negotiation, and that an individual purchasing the ticket will not have
14
bargaining parity with the cruise line.” (Id. at p. 593.) Nonetheless, the
court concluded that the clause was enforceable, reasoning that “a
cruise line has a special interest in limiting the fora in which it
potentially could be subject to suit. Because a cruise ship typically
carries passengers from many locales, it is not unlikely that a mishap
on a cruise could subject the cruise line to litigation in several different
fora. [Citations.] Additionally, a clause establishing ex ante the forum
for dispute resolution has the salutary effect of dispelling any confusion
about where suits arising from the contract must be brought and
defended, sparing litigants the time and expense of pretrial motions to
determine the correct forum and conserving judicial resources that
otherwise would be devoted to deciding those motions. [Citation.]
Finally, it stands to reason that passengers who purchase tickets
containing a forum clause like that at issue in this case benefit in the
form of reduced fares reflecting the savings that the cruise line enjoys
by limiting the fora in which it may be sued. [Citation.]” (Id. at pp.
593-594.) In Shute, as here, the plaintiffs “have conceded that they
were given notice of the forum provision and, therefore, presumably
retained the option of rejecting the contract with impunity.” (Id. at p.
595.) Noting that there was “no evidence that petitioner obtained
respondents’ accession to the forum clause by fraud or overreaching,”
the court concluded the respondents failed to satisfy “the ‘heavy burden
of proof’” required to set aside the forum selection clause. (Ibid.)
As stated above, enforcement of a forum selection clause “is
considered unreasonable where ‘the forum selected would be
unavailable or unable to accomplish substantial justice’ or there is no
15
‘rational basis’ for the selected forum. [Citation.]” (Drulias, supra, 30
Cal.App.5th at p. 707.) Appellant has presented no evidence that
enforcement of the forum selection clause would be unreasonable on
either of these bases. (Compare Magno v. The College Network, Inc.
(2016) 1 Cal.App.5th 277, 290 [substantial evidence supported finding
that plaintiffs were unaware of an arbitration provision, and there were
“other indicia of substantive unconscionability”].) In fact, he presents
no such argument. Instead, he argues that enforcement of the clause
would be unreasonable because (1) the clause designates a federal
forum rather than a geographic location; (2) the clause deprives
California courts from hearing the matter; and (3) respondent’s failure
to remove the matter to federal court stripped the federal court of
subject matter jurisdiction. We find none of his arguments meritorious.
1. Designation of Federal Forum
Rather than arguing that the federal forum is unavailable or
unable to accomplish substantial justice (Drulias, supra, 30 Cal.App.5th
at p. 707), appellant contends that enforcement of the clause would be
unreasonable because it designates a specific federal court rather than
imposing a geographic limitation. As the superior court acknowledged,
“[t]he case law generally does not appear to address forum selection
clauses that select a federal forum, as opposed to such clauses that
make geographic selections.” Nonetheless, we agree that the selection
of a federal forum does not make enforcement of the clause
unreasonable.
16
“In analyzing forum selection clauses, courts begin by determining
whether the limitation provided in the clause is one of sovereignty or
geography. [Citations.] Clauses that are expressed in terms of
sovereignty mandate that suit be brought in the courts of the state
sovereign. [Citation.] On the other hand, clauses that are expressed in
terms of geography permit suit to be brought in a state or federal court
located within a specified geographic boundary. [Citation.]” (Silo Point
II LLC v. Suffolk Const. Co., Inc. (D.Md. 2008) 578 F.Supp.2d 807, 810.)
The cases addressing whether a forum selection clause imposes a
limitation of geography or sovereignty are concerned with whether
litigation is permissible in both state and federal court or only state
court. For example, respondent relies on Doe 1 v. AOL LLC (9th Cir.
2009) 552 F.3d 1077 (Doe 1) and American Soda v. U.S. Filter
Wastewater Group (10th Cir. 2005) 428 F.3d 921 (American Soda) to
argue that the designation of a federal forum is valid, but those cases do
not address a clause such as that found here.
In Doe I, the issue was the meaning of a forum selection clause
stating that “‘exclusive jurisdiction . . . resides in the courts of
Virginia.’” (Doe 1, supra, 552 F.3d at p. 1081.) The court held that the
clause referred only to state courts, reasoning that “[t]he clause’s use of
the preposition ‘of’—rather than ‘in’—is determinative. . . . [C]ourts ‘of’
Virginia refers to courts proceeding from, with their origin in,
Virginia—i.e., the state courts of Virginia. Federal district courts, in
contrast, proceed from, and find their origin in, the federal
government.” (Id. at p. 1082.)
17
Similarly, the forum selection clause at issue in American Soda
provided that “the Courts of the State of Colorado/Arbitrator shall be
the exclusive forum for the resolution of any disputes.” (American
Soda, supra, 428 F.3d at p. 924.) The court concluded that the clause
“refers to sovereignty rather than geography.” (Id. at p. 926.) Because
the federal district courts “‘indisputably proceed from, and find their
origin in, the federal government,’ [citation] not in the governments of
the states in which they are located,” the clause designating the courts
“of the State of Colorado” as the exclusive forum required litigation in
the Colorado state court system. (Ibid.)
Unlike the clauses in Doe I and American Soda, the forum
selection clause at issue here does not merely designate a geographical
location, which could raise a question of sovereignty. Nor does the
clause raise a question of the reasonableness of litigating outside the
state. (See e.g., Drulias, supra, 30 Cal.App.5th at p. 699 [enforcing
forum selection bylaw designating Delaware as litigation forum].)
Instead, the forum selection clause requires litigation in federal court in
Los Angeles and, if the federal court lacks subject matter jurisdiction, in
state court in Los Angeles County. We have found several out-of-state
cases addressing similar clauses and agree with our sister states that
the clause is enforceable.
In Oltman v. Holland America Line USA, Inc. (Wash. 2008) 178
P.3d 981 (Oltman), the Supreme Court of Washington addressed a
cruise passenger ticket containing “a forum selection clause designating
the federal district court in western Washington as the chosen forum,
18
with the sole exception being that King County courts are the chosen
forum where the federal court lacks subject matter jurisdiction.” (Id. at
p. 985.) Because the plaintiffs filed suit in state court, one of the issues
was whether the forum selection clause was valid and enforceable. The
plaintiffs “contend[ed] that under the federal savings to suitors clause
they were entitled to file in state court, and that when they did so, the
federal court was deprived of subject matter jurisdiction. That being
the case, they reason, they were entitled to file in state court under the
exception in the forum selection clause permitting suit to be brought in
King County courts if the federal district court lacked subject matter
jurisdiction.”7 (Id. at p. 994.) The court rejected this argument as
“circular” and concluded that the forum selection clause required the
plaintiffs to “bring their suit in federal court, which has subject matter
jurisdiction over admiralty claims.” (Id. at pp. 994, 995.)
In Lischinskaya v. Carnival Corp. (N.Y. App. Div. 2008) 56 A.D.3d
116 (Lischinskaya), the New York Supreme Court, Appellate Division,
addressed whether “a forum selection clause in a cruise ship contract of
passage that limits an injured passenger to suit in federal court, where
such jurisdiction is available, and allows a state court action only where
it is not, violate[s] either the Saving to Suitors Clause of the Judiciary
7 “The savings to suitors clause, 28 U.S.C. § 1333(1), states that ‘[t]he
district courts shall have original jurisdiction, exclusive of the courts of the
States, of: (1) [a]ny civil case of admiralty or maritime jurisdiction, saving to
suitors in all cases all other remedies to which they are otherwise entitled.’
This provision enables a plaintiff to bring an admiralty or maritime claim in
state court, i.e., the state and federal courts have concurrent jurisdiction.”
(Oltman, supra, 178 P.3d at p. 994.)
19
Act of 1789 (28 USC § 1333[1]) or 46 USC § 30509, which governs
clauses in maritime contracts that purport to limit liability.” (Id. at p.
118.) Similar to the forum selection clause here, the clause required
litigation in federal court in Miami, or as to lawsuits to which the
federal court lacked subject matter jurisdiction, in state court in Miami-
Dade County, Florida. Lischinskaya held that the forum selection
clause was enforceable, reasoning that “[t]he plaintiff had the
opportunity to review the ticket [citations], as she received it more than
a month before the date on which she embarked [citations]. The front
portion of the ticket explicitly directed the attention of the passenger to
a page within to read ‘important limitations.’ Those restrictions
included the complete terms of the forum selection clause. The forum
selected, either the federal or state courts in Miami, Florida, is not
inconvenient [citations], particularly since that is the port at which the
plaintiff embarked.” (Id. at p. 120.)
In Leslie v. Carnival Corp. (Fla.App. 3 Dist. 2008) 22 So.3d 561
(Leslie), the District Court of Appeal of Florida addressed the same
forum selection clause that was addressed in Lischinskaya. The court
noted that the forum selection clause was not a geographical clause, but
was more aptly characterized as “a ‘sovereign selection clause.’” (Id. at
p. 564.) Similar to appellant here, the passengers argued that the “new
forum-selection clause effectively dictates not only the location where a
passenger may sue, but also contractually constrains the ‘subject matter
jurisdiction’ of the available courts within that jurisdiction.” (Ibid.)
The court acknowledged that the clause “disrupt[ed] the participation of
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this state’s ‘trial and appellate courts as an otherwise indispensable, co-
equal [an]d counter-poising source (with federal courts) of national
maritime common law,’” and thus resulted in “disruption to traditional
maritime policy.” (Id. at p. 565.) Nonetheless, the court concurred with
the view of the United States Supreme Court that this concern “reflects
something of a provincial attitude regarding the fairness of other
tribunals.” (Ibid., quoting M/S Bremen v. Zapata Off-Shore Co. (1972)
407 U.S. 1, 12.) Rejecting the concern that “plaintiffs who might
become contractually obligated to appear before and litigate their cases
before the fine judges of the United States District Court for the
Southern District of Florida somehow will be short-changed,” the court
affirmed the trial court’s enforcement of the forum selection clause.
(Leslie, supra, 22 So.3d at pp. 565–566.)
In reliance on the reasoning of Lischinskaya, Leslie, and Oltman,
we disagree with appellant that the forum selection clause is
unenforceable solely because it designates a federal forum and allows
litigation in state court only where the federal court does not have
subject matter jurisdiction. Instead, as the United States Supreme
Court explained in Shute, there are “several reasons” for finding such a
clause enforceable. (Shute, supra, 499 U.S. at p. 593.) These include
the advantages of dispelling confusion about where suits must be
brought and the possibility that “passengers who purchase tickets
containing a forum clause . . . benefit in the form of reduced fares
reflecting the savings that the cruise line enjoys by limiting the fora in
which it may be sued. [Citation.]” (Id. at p. 594.) The designation of a
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federal forum was a matter of contract (National Auto Lenders, supra,
686 F.Supp.2d at p. 1322), and appellant has presented no argument or
evidence that enforcement would be unreasonable. (See Cal-State,
supra, 12 Cal.App.4th at p. 1679 [forum selection clauses are valid in
absence of showing that enforcement would be unreasonable].)
2. Concurrent Jurisdiction of State Court
Appellant further argues that, because California state courts
have concurrent jurisdiction over the matter, the forum selection clause
unfairly deprives California state courts from hearing the matter.
“While it is true that the parties may not deprive courts of their
jurisdiction over causes by private agreement [citation], it is readily
apparent that courts possess discretion to decline to exercise
jurisdiction in recognition of the parties’ free and voluntary choice of a
different forum. (Smith, Valentino & Smith, Inc. v. Superior Court
(1976) 17 Cal.3d 491, 495 (Smith).)
The forum selection clause does not “deprive” the Los Angeles
Superior Court of jurisdiction. Instead, the superior court exercised its
“discretion to decline to exercise jurisdiction in recognition of” the forum
selection clause contained in the passage contract. (Smith, supra, 17
Cal.3d at p. 495.) Appellant presented no evidence to satisfy his “‘heavy
burden’” of proving unreasonableness. (Shute, supra, 499 U.S. at p.
595.) Moreover, as the Florida Court of Appeal reasoned, “plaintiffs
who might become contractually obligated to appear before and litigate
their cases before the fine judges of the United States District Court” for
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the Central District of California will not “be short-changed.” (Leslie,
supra, 22 So.3d at pp. 565-566.)
3. Failure to Remove
Appellant contends that respondent’s failure to remove the matter
to federal court within the 30 days required by 28 U.S.C. § 1446(b)
deprived the federal court of subject matter jurisdiction. Because the
forum selection clause provides for litigation “before a court located in
Los Angeles County, California, U.S.A.” of “lawsuits over which the
Federal Courts of the United States lack subject matter jurisdiction,” he
contends that the forum selection clause requires the matter to be heard
in Los Angeles Superior Court.
A defendant generally may remove a civil action brought in state
court to the federal district court where the federal district court has
original jurisdiction.8 (28 U.S.C.A. § 1441.) 28 U.S.C. § 1446 provides
8 Courts have held that “[t]he practical effect of these provisions is to
prevent the removal of admiralty claims pursuant to § 1441(a) unless there is
complete diversity of citizenship (predicated upon out-of-state defendants).”
(In re Dutile (5th Cir. 1991) 935 F.2d 61, 63 [discussing 28 U.S.C. §§ 1333,
1441, and 1445].) However, “whether a state law case can be removed into
admiralty is . . . ‘a hotly contested issue in maritime law.’ [Citation.]”
(Hamerly v. Tubal-Cain Marine Services, Inc. (E.D.Tex. 2014) 62 F.Supp.3d
555, 559.) Respondent argues extensively that it could not have removed the
matter to federal court. Appellant contends that respondent forfeited this
argument by failing to raise the issue in the trial court. (See Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163
Cal.App.4th 550, 564 [“‘“‘[I]t is fundamental that a reviewing court will
ordinarily not consider claims made for the first time on appeal which could
have been but were not presented to the trial court.’”’”].) We need not
address whether respondent could have removed the matter to federal court
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that a defendant “desiring to remove any civil action from a State court”
must file the notice of removal “within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceeding is
based.” (28 U.S.C.A. § 1446(a) & (b).) Appellant contends that
respondent waived its right to remove the action and that the federal
district court accordingly “may not exercise subject matter jurisdiction
over this case.”
Appellant provides no authority for the proposition that
respondent’s failure to remove the matter to federal court within 30
days strips the federal court of subject matter jurisdiction. This
proposition is contrary to federal law. “[Section] 1446(b)’s thirty-day
time limit within which the defendant must file a notice of removal
after receipt of the complaint . . . [is] merely procedural.” (Smith v.
Mylan Inc. (9th Cir. 2014) 761 F.3d 1042, 1045.) It is “‘not
jurisdictional.’ [Citation.]” (Ibid.)
Federal district courts have original jurisdiction over “[a]ny civil
case of admiralty or maritime jurisdiction.” (28 U.S.C. § 1333, subd. (1);
see DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802,
807 [“The duty of care of the owner of an excursion ship is a matter of
federal maritime law. [Citations.]”].) The passage contract here
contained a choice-of-law provision, which stated: “You acknowledge
and agree that, except as otherwise expressly provided herein, the
because, as we explain, we find no authority for appellant’s proposition that
the failure to remove the matter stripped the federal court of jurisdiction.
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resolution of any and all disputes between Carrier and any Guest shall
be governed exclusively and in every respect by the general maritime
law of the United States without regard to its choice of law principles,
except in cases involving death arising outside the United States which
shall be governed exclusively by the Death on the High Seas Act, 46
U.S.C. § 30301, et seq. You agree this choice of law provision replaces,
supersedes and preempts any provision of law of any state or nation to
the contrary.” “Such choice of law provisions are usually respected by
California courts. [Citations.]” (Smith, supra, 17 Cal.3d at p. 494.)
Respondent’s failure to remove the matter to federal court did not
deprive the federal court of subject matter jurisdiction.
For the foregoing reasons, we conclude that the trial court
properly dismissed the matter for forum non conveniens on the basis of
the forum selection clause.
//
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DISPOSITION
The order dismissing the case for forum non conveniens is
affirmed. Respondent is entitled to costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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