Judge: Daniel M. Crowley, Case: 23SMCV00148, Date: 2023-04-25 Tentative Ruling

Case Number: 23SMCV00148    Hearing Date: April 25, 2023    Dept: 207

Background

Plaintiff Dominic Adua Nyaaba (“Plaintiff”) brings this action against Defendant St. Moritz Security Services, Inc. (“Defendant”) concerning the termination of a contract between the parties through which Plaintiff provided private security services to clients of Defendant. Defendant now moves to dismiss Plaintiff’s action based on a forum selection clause in the parties’ contract which requires disputes to be brought in the state or federal courts of Pennsylvania, where Defendant is headquartered. Plaintiff has filed a document titled “Motion for Judgment on the Pleadings” which contains an opposition to Defendant’s motion to dismiss.

Legal Standard

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 must stay or dismiss the action in whole or in part on any conditions that may be just. (Code Civ. Proc., § 410.30, subd. (a). This principle is the codification of the firmly established forum non conveniens doctrine, which provides that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. (Great Northern R. Co. v Superior Court (1970) 12 Cal.App.3d 105, 108-110.)

A defendant may enforce a forum-selection clause by bringing a motion pursuant to California’s forum non conveniens statutes, because these statutes ‘are the ones which generally authorize a trial court to decline jurisdiction when unreasonably invoked and provide a procedure for the motion.” (Global Financial Distributors Inc. v. Superior Court (2019) 35 Cal.App.5th 179, 186.) A motion to dismiss for forum non conveniens “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 motion do not control in a case involving a mandatory forum selection clause.” (Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358.)

Code Civ. Proc. § 410.30 states, in relevant part: “(a) When a court upon motion of a party of 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 Civ. Proc. § 418.10 states, in relevant part: “(a) 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 of more of the following purposes: . . . (2) to stay or dismiss the action on the ground of inconvenient forum.” Code Civ. Proc. § 418.10(b)’s codification of “[f]orum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)

On a motion to dismiss for forum non conveniens pursuant to a mandatory forum selection clause, the only issues for the court’s consideration are (1) whether the forum selection clause is indeed mandatory, as opposed to permissive; (2) whether the forum selection clause covers the claims in the case; and (3) whether the forum selection clause is “unreasonable.” (Berg, supra, 61 Cal.App.4th at pp. 358-359.)

With regard to reasonableness “[m]ere inconvenience or additional expense is not the test.” (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496.) Instead, a forum selection clause is unreasonable if “the forum selected would be unavailable or unable to accomplish substantial justice.” (CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.App.4th 1347, 1354.) In making this determination, the choice of forum “must have some rational basis in light of the facts underlying the transaction.” (Ibid.)

Analysis

The following facts are not disputed by the parties. Defendant is a corporate entity which is in the business of providing private security services to clients nationwide. (Bradley Decl. at ¶3.) Defendant’s corporate headquarters is in Allegheny County in the state of Pennsylvania. (Id. at ¶5.) It regularly subcontracts with other licensed security companies to provide security services in various states as affiliates of Defendant. (Id. at ¶3.) Defendant entered into such a subcontract with Plaintiff, called an Affiliate Agreement. (Id. at ¶4, Ex. A to Bradley Decl.) The Affiliate Agreement between the parties was executed on July 28, 2021, and contains a mandatory forum selection clause which provides “The Parties hereby agree that the sole jurisdiction and venue with respect to any action or suit hereunder shall be the courts, federal or state, located in Alleghany County, Pennsylvania.” (Bradley Decl. at ¶4; Ex. A to Bradley Decl. at p. 10.)

Defendant argues the forum selection clause in the Affiliate Agreement compels the Court to dismiss the present action. Plaintiff asks the Court to deny Defendant’s motion because “There are triable issues in the complaint, and public policy requires the court and the public to abide by procedural evidence until it is solved in the court of California.” (MJOP at 13-14.) Plaintiff’s assertion is unsupported by any authority, and indeed runs contrary to the authority set forth above which limits the Court’s determination on the enforcement of a forum selection clause to three questions: (1) is the clause mandatory or permissive, (2) does it cover the claims raised, and (3) is it unreasonable? Plaintiff offers no evidence or argument on any of these points.

The forum selection clause in the Affiliate Agreement is clearly mandatory as it provides the courts of Alleghany County shall have sole jurisdiction over the parties’ disputes. Plaintiff’s Complaint against Defendant asserts causes of action for breach of contract, wrongful termination, liquidated damages, assault, battery, lost wages, and negligence all of which stem from the contractual relationship between the parties as established by the Affiliate Agreement. There is a rational basis for the clause, as Defendant is headquartered in Alleghany County, Pennsylvania, and the contract contains a choice-of-law clause specifying that it is entered into and governed by the Pennsylvania law. (Ex. A to Bradley Decl. at p. 10.) The Court has no basis to conclude that the court of Pennsylvania would be unavailable or unable to accomplish substantial justice in resolving Plaintiff’s claims against Defendant. For these reasons, the Court GRANTS Defendant’s motion to dismiss.

Plaintiff also claims Defendant is in default. The Court disagrees. On January 12, 2023, Plaintiff filed a proof of service indicating he served Defendant with unspecified documents through personal service, by messenger, and by mail. Plaintiff himself signed the proof of service indicating he is the one who personally delivered and mailed these unknown documents to Defendant. Plaintiff is not permitted to effect service of process in this way as Code Civ. Proc. § 414.10 provides “A summons may be served by any person who is at least 18 years of age and not a party to the action.” Thus, the January 12, 2023, proof does not establish Defendant was properly served with process at that time.

Plaintiff then filed a second proof of service on March 1, 2023. This proof of service shows personal service on Defendant by a Sheriff’s Deputy on February 27, 2023. Defendant thus had 30 days—or until March 29, 2023—to respond to Plaintiff’s Complaint. Defendant did so by filing the instant motion on March 29, 2023, as permitted by Code Civ. Proc. § 418.10(a)(2). As Defendant timely responded to Plaintiff’s Complaint, Defendant is not in default.

Conclusion

Defendant’s motion to dismiss for forum non conveniens is GRANTED.