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.
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
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
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 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.
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)
In Foust, supra ,
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 ,
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 ,
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 ,
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
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)
"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)
"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 ,
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)
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
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)
"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)
"A forum selection clause need not be subject to negotiation to be enforceable. [Citations.] Rather, a forum selection clause contained in a
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)
In Shute ,
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 'rational basis' for the selected forum. [Citation.]" ( Drulias , supra ,
1. Designation of Federal Forum
Rather than arguing that the federal forum is unavailable or unable to accomplish
"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)
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 ,
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 ,
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 ,
In Lischinskaya v. Carnival Corp. (N.Y. App. Div. 2008)
In Leslie v. Carnival Corp. (Fla.App. 3 Dist. 2008)
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 ,
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)
3. Failure to Remove
Appellant contends that respondent's failure to remove the matter to federal court within the 30 days required by
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.
Federal district courts have original jurisdiction over "[a]ny civil case of admiralty or maritime 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.
DISPOSITION
The order dismissing the case for forum non conveniens is affirmed. Respondent is entitled to costs on appeal.
We concur:
COLLINS, J.
CURREY, J.
Notes
The parties are represented on appeal by the same counsel who represented them below.
Unspecified statutory references will be to the Code of Civil Procedure.
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).)
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).)
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.
"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)
"The savings to suitors clause,
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)