Judge: Gary I. Micon, Case: 24CHCV03882, Date: 2025-06-13 Tentative Ruling
Case Number: 24CHCV03882 Hearing Date: June 13, 2025 Dept: F43
Dept. F43
Date: 06-13-25
Case # 24CHCV03882, Moore v. Princess
Cruises, et al.
Trial Date: None set.
MOTION TO DISMISS
FIRST AMENDED COMPLAINT
MOVING PARTY: Defendant Princess Cruise
Lines, Ltd.
RESPONDING PARTY: Plaintiff Marsha Moore
RELIEF REQUESTED
Order dismissing case for improper forum.
RULING: Motion
is granted.
SUMMARY OF ACTION
This personal injury case arises from an
incident that occurred on a passenger cruise ship.
Plaintiff Marsha Moore (Plaintiff) alleges
that she suffered injuries on March 5, 2023 while a passenger aboard a cruise
ship owned and operated by defendant Princess Cruise Lines, Ltd. Plaintiff sued defendants Princess Cruises,
Princess Cruise Lines, Ltd., Carnival Corporation & PLC, Negin Kamali,
Alivia Ender, Mark Barnes, Ed Ramaekers, Simeon Waldron, and Does 1 to 50,
alleging a single negligence cause of action.
On January 14, 2025, Plaintiff filed a First Amended Complaint (FAC) alleging
two causes of action against only defendant Princess Cruise Lines, Ltd
(Defendant): negligence and premises liability.
Defendant now moves to dismiss the FAC for
improper forum. Plaintiff opposes, and Defendant
replies.
SUMMARY OF ARGUMENTS
Defendant contends that the U.S. District
Court for the Central District of California in Los Angeles is the proper venue
for this case based on a forum selection clause included in the Passage
Contract that governed Plaintiff’s purchase of her cruise. The forum selection clause states that any
claims and disputes involving bodily injury of any guest arising from the
Passage Contract or the cruise itself must be litigated in the U.S. District
Court for the Central District of California or as to those lawsuits over which
the Federal Courts of the United States lack subject matter jurisdiction. Under general maritime law, the forum
selection clause is enforceable because there is no evidence that the clause is
fraudulent, overreaching, unreasonable, or unjust. The Passage Contract is not an adhesion
contract, and Plaintiff can present no evidence showing as such. Further, the clause was reasonably
communicated to Plaintiff, and she had the opportunity to review it on several
occasions before embarking on the cruise.
Plaintiff was made aware of the Passage Contract several times in
booking confirmation emails. Plaintiff
accepted the terms of the Passage Contract through her Princess Cruise
Personalizer application, which advises guests that they must read and accept
the Passage Contract in order to embark on their cruise.
Plaintiff claims she did not receive adequate
notice of the Passage Contract and that she did not accept the Passage Contract
prior to boarding the cruise. Plaintiff
booked her cruise by phone, and the only reference to the Passage Contract was
buried in the fine print at the end of an attachment to a post-booking
email. This is insufficient notice. Further, the Cruise Personalization application
shows that Plaintiff did not accept the Passage Contract until three hours
after the cruise began at 9:30 a.m. Plaintiff
points to timestamps and time zones to support this argument.
Defendant responds that Plaintiff fails to
meet her burden to show that the forum-selection clause is unenforceable. Plaintiff presents no evidence and does not
address the evidence showing Defendant reasonably notified her of the
importance of reviewing the Passage Contract on four occasions before her
cruise. The Passage Contract was
available online and through her Booking Confirmations. Plaintiff was required to open the Passage
Contract, read it, and then to scroll down to the bottom of the contract to
click the “Accept” button before she boarded her cruise ship. Because the evidence shows that she accepted
the Passage Contract before boarding the ship, she cannot contest the reasonable
communicativeness of the forum selection clause. As for Plaintiff’s assertions concerning when
she accepted the Passage Contract versus when the cruise began, Plaintiff is
not qualified to comment on the timestamp screenshots in Defendant’s evidence. The evidence shows that Plaintiff accepted
the Passage Contract at 12:09 p.m. local time in Fort Lauderdale, FL and that
boarding did not begin until 12:30 p.m.
Thus, Plaintiff did accept the Passage Contract before boarding the
cruise ship.
EVIDENTIARY OBJECTIONS
Plaintiff objects to the Declaration of Scott
Gerstl:
Sustained:
None.
Overruled:
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.
ANALYSIS
“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 move to stay or dismiss an action for inconvenient forum. (Code Civ. Proc., § 418.10, subd. (a)(2).) “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.” (Chong
v. Superior Court (1997) 58 Cal.App.4th 1032 1037-38; Morris v. AGFA
Corp. (2006) 144 Cal.App.4th 1452, 1462; Code Civ. Proc., § 410.30.)
The moving party bears the burden of showing that the
case should be tried elsewhere.” (Morris
v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462.) “[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.)
“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. 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.” (Korman v. Princess Cruise
Lines, Ltd. (2019) 32 Cal.App.5th 206, 214, 243 [quotations and
citations omitted].)
“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.”
(Animal Film, LLC v. D.E.J. Productions, Inc.¿(2011) 193 Cal.App.4th
466, 471.) Where a forum selection clause is “mandatory” and thus,
“mandate[s] litigation exclusively in a particular forum”, “the modern trend is
to enforce mandatory forum selection clauses unless they are unfair or
unreasonable.” (Berg v. Mtc Electronics Techs. Co. (1998) 61
Cal.App.4th 349, 358-359.) Courts will usually honor a mandatory forum
selection clause as long as the clause is fair and reasonable. (Ibid.) The plaintiff bears the burden of
demonstrating that enforcement of the clause would be unreasonable under the
circumstances of the case. (Lu v. Dryclean-U.S.A. of California, Inc.
(1992) 11 Cal.App.4th 1490, 1493.)
If the forum selection clause is mandatory, the court
does not consider traditional public and private inconvenient forum factors. (Global Financial Distributors, Inc. v.
Superior Court (2019) 35 Cal.App.5th 179, 192.) However, “the court must still determine
whether enforcement of the clause would be unreasonable, whether the selected
forum has a logical connection to the parties or their transaction, and whether
there is a rational basis for the selected forum.” (Ibid.)
The
Passage Contract contained a mandatory forum selection clause.
A forum selection clause is mandatory if it requires parties
to litigate disputes exclusively in a designated forum. (Global Financial Distributors, Inc., supra,
35 Cal.App.5th at p. 192.) Where a case
arises from injuries that occurred “aboard a ship upon navigable waters”, the
legal rights and liabilities arising from the conduct are evaluated under
maritime law. (Wallis v. Princess Cruises, Inc.
(9th Cir. 2002) 306 F.3d 827, 834; Kermarec v. Compagnie Generale
Transatlantique (1954) 348 U.S. 625, 628.)
In support of its motion, Defendant presents a copy of
the Passage Contract (updated October 2022) from Defendant’s website which was
applicable to Plaintiff’s 2022 booking application and number (4CGX2R). (See Declaration of Scott Gerstl, ¶¶ 3, 10;
Exh. G.) The Passage Contract states in uppercase
bold print:
IMPORTANT NOTICE TO GUESTS: PLEASE CAREFULLY
READ THE FOLLOWING PASSAGE CONTRACT TERMS THAT GOVERN ALL DEALINGS BETWEEN YOU
AND THE CARRIER (DEFINED BELOW), AFFECT YOUR LEGAL RIGHTS, AND ARE BINDING ON
YOU TO THE FULL EXTENT PERMITTED BY LAW; PARTICULARLY . . . OTHER[] [SECTIONS]
FOR YOUR DEATH, ILLNESS, INJURY, OR DAMAGE CLAIMS RELATING TO BAGGAGE OR
PERSONAL PROPERTY, AND SECTION 17 LIMITING YOUR RIGHT TO SUE, IDENTIFYING THE
FORUM FOR SUIT, REQUIRING ARBITRATION AND WAIVER OF JURY TRIAL FOR CERTAIN
CLAIMS, AND WAIVING YOUR RIGHT TO ARREST OR ATTACH CARRIER’S VESSELS.
(Gerstl Dec.; Exh. G at p. 1.) This provision expressly mentions “injuries”
and Section 17 where the forum selection clause is listed. Section 17(B)(i) of the Passage Contract states:
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 in and before the United States District Court 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.
(See Gerstl Dec.; Exhs. G at p. 19 [emphasis added].)
The Passage Contract expressly requires all bodily injury
claims arising from the guest’s cruise or the Passage Contract to be litigated
in the federal district court for the Central District of California in Los
Angeles. Plaintiff alleges that she
suffered personal injuries during her cruise aboard the Caribbean Princess on
March 5, 2023 and that the injuries were caused by a defective protrusion on
the floor of the cruise ship’s hallway.
(FAC, pp. 1-2.) Because Plaintiff’s
claims are for personal injury, the injuries arise under federal maritime law,
and the forum selection clause mandates such claims be litigated in the U.S.
District Court for the Central District of California in Los Angeles, the forum
selection clause applies to Plaintiff’s claims against Defendant.
The forum selection clause is enforceable
because it is not unreasonable, unjust, Defendant reasonably communicated the
Passage Contract to Plaintiff, and Plaintiff had the ability to read the
Passage Contract.
Forum selection clauses in cruise ticket contracts are
usually upheld unless enforcement is unreasonable or violates “principles of
‘fundamental fairness.’” (Campbell v.
Princess Cruise Lines Ltd. (2021) 2021 WL 75663, at p. *2 [quoting Carnival
Cruise Lines, Inc. v. Shute (1991) 499 U.S. 585, 595].) The party opposing enforcement has the burden
of showing why the clause is unenforceable.
(Campbell, supra, 2021 WL 75663, at p. *2.)
Plaintiff contends that the forum selection clause is
unenforceable because she had no actual or constructive notice of the forum
selection clause prior to assenting to the Passage Contract’s terms, she did
not agree to the Passage Contract’s terms upon booking her cruise over the
phone, and Plaintiff did not assent to the Passage Contract via a click-wrap
agreement. Plaintiff claims that the
only reference to the contract was buried in fine print at the end of an
attachment to a post-booking email.
a. Plaintiff
presents no proof that the forum selection clause is unreasonable or unjust due
to fraud.
Under maritime law, forum-selection clauses are generally
valid unless the opposing party presents proof that the clause is unjust,
unreasonable due to fraud. (See The
Bremen v. Zapata Off-Shore Co. (1972) 407 U.S. 1, 9.)
Plaintiff presents no such evidence.
The evidence shows that Defendant is a Bermuda
corporation with a principal place of business and base of operations in Santa
Clarita, CA, in Los Angeles County.
(Declaration of Scott Gerstl, ¶ 2.)
Plaintiff brings her case in Los Angeles County where the U.S. District
Court for the Central District of California is located. Therefore, the clause is not so unreasonable
that dismissing the case would require Plaintiff to completely change states or
countries to bring her claims against Defendant.
b.
Notice
Where a forum selection clause is non-negotiated courts
use the two-prong “reasonable communicativeness” test to determine if the
clause is fundamentally fair. (Wallis
v. Princess Cruises, Inc. (9th Cir. 2022) 306 F.3d 827, 834.) “The proper test of reasonable notice
is an analysis of the overall circumstances on a case-by-case basis, with an
examination not only of the ticket itself, but also of any extrinsic factors
indicating the passenger’s ability to become meaningfully informed of the
contractual terms at stake.” (Id.
at p. 835.)
Prong one focuses on the physical characteristics of the
cruise ticket, assessing features such as font size, conspicuousness and
clarity of the notice on the face of the ticket, and ease with which a
passenger can read the provision. (Wallis,
supra, 306 F.3d at p. 835.)
Here, the Passage Contract meets prong one because of its
physical characteristics. The opening
provision of the contract uses bold and capital letters to advise the guest to
read the entire agreement because it affects the guest’s legal rights and
obligations concerning injuries and damages.
The provision specifically references Section 17 where the forum
selection clause is located.
Prong two evaluates the circumstances surrounding the
passenger’s purchase and subsequent retention of the ticket or contract,
including “the passenger’s familiarity with the ticket, the time and incentive
under the circumstances to study the provisions of the ticket, and any other
notice that the passenger received outside the ticket.” (Wallis, supra, 306 F.3d at p.
836.)
Plaintiff booked her cruise by phone with a travel
agent. (Opposition, p. 2:3-4, 2:10-13.) Plaintiff claims she received several
follow-up confirmation emails that did not contain any language that alerted
her to the Passage Contract but contained an attachment. (Id. p. 2:11-13.) Plaintiff does not present copies of these
emails or any other evidence to support her arguments.
Defendant presents Plaintiff’s booking records, which
indicate that Plaintiff booked her cruise on December 23, 2022. (See Gerstl Dec., ¶ 3; Exhs. A, B.) Defendant emailed Plaintiff booking
confirmation PDFs, to her email address santafered3@gmail.com, three times on
December 23, 2022 and a fourth time on December 26, 2022. (Gerstl Dec., ¶ 4; Exh. B.) The booking confirmation PDF is a two-page
document. The second page included
language stating that upon booking the cruise, Plaintiff agreed to the Passage
Contract’s terms using the following language:
IMPORTANT NOTICE: Upon booking the Cruise, each Passenger explicitly
agrees to the terms of the Passage Contract
(www.princess.com/legal/passage_contract/index.jsp). Please read all sections
carefully as they affect the passenger’s legal rights.
(Gerstl Dec.; Exh. C.)
The link included in this notice directs guests to the
Passage Contract’s text.
Defendant’s records also reflect that Plaintiff formally
accepted the Passage Contract’s terms on March 2, 2023 through Defendant’s
“Cruise Personalizer” application (the App).
(Gerstl Dec., ¶ 6; Exh. D.) Defendant’s
internal processes require guests to accept the Passage Contract before boarding
the cruise ship. (Gerstl Dec., ¶ 7; Exh.
E.) The App advises guests that “In
order to embark, each adult guest must individually read and accept the
following Princess Cruises Passage Contract on his/her own behalf and on behalf
of all accompanying minor children.”
(Gerstl Dec.; Exh. E at p. 1.) This
statement is immediately followed by the following text:
IMPORTANT NOTICE TO GUESTS: PLEASE CAREFULLY
READ THE FOLLOWING PASSAGE CONTRACT TERMS THAT GOVERN ALL DEALINGS BETWEEN YOU
AND THE CARRIER (DEFINED BELOW). AFFECT YOUR LEGAL RIGHTS, AND ARE BINDING ON
YOU TO THE FULL EXTENT PERMITTED BY LAW; PARTICULARLY SECTIONS GOVERNING
ELIGIBILITY REQUIREMENTS FOR SAILING, SECTION 6, WHICH CONTAINS
(Gerstl Dec.; Exh. E at p. 1.) The App then requires guests to scroll to the
bottom of the page to click on a box confirming that the guest understood and
accepted the Passage Contract’s terms. (Gerstl
Dec.; Exh. at p. 2.) Further, a guest
cannot board a cruise ship unless all documents listed in the personal
information & documents section of the App display a green check. (Gerst Dec., ¶ 8.)
Prong two is also met because the evidence shows that
Plaintiff had several opportunities and an incentive to read the contract
before boarding the cruise. The booking
confirmation containing the link to the Passage Contract was emailed to
Plaintiff four times at least two months before the cruise. Plaintiff admits she received these emails
but presents no evidence that she had no opportunity or ability to review the
booking confirmation PDFs or the “IMPORTANT INFORMATION” about the Passage
Contract. This notice was on the second
page of a two-page document, rather than a long booklet. Further, the Passage Contract is available
online for anyone to view via the link in the App and the booking confirmation
PDFs.
Plaintiff presents no evidence or arguments that the
Passage Contract and its forum selection caluse were vague or ambiguous, that
she was unable to understand the contract’s terms, or that she did not accept
the Passage Contract’s terms.
Therefore, the evidence shows that Defendant reasonably
communicated the Passage Contract to Plaintiff, and she had sufficient notice
and the ability to read the terms of the Passage Contract.
c. The
forum selection clause applies to Plaintiff’s claims against Defendant
regardless of when she accepted the Passage Contract’s terms through the App.
Next, Plaintiff contends that the clause is unenforceable
and inapplicable to this case because she “accepted” the Passage Contract after
the cruise commenced, rather than before.
Both parties concede that Plaintiff accepted the Passage
Contract’s terms on March 2, 2023.
However, a dispute exists concerning whether Plaintiff accepted the
contract’s terms before or after embarking on the cruise. Plaintiff asserts that Defendant’s evidence
reflects that the cruise start date and location was March 2, 2023 at 9:30 a.m.
and that the Passage Contract was accepted on March 2, 2023 at 12:09 p.m. EST,
three hours after the journey start time.
Defendant states that Plaintiff misinterprets terms in its evidence.
Defendant’s application data for Plaintiff’s Passage
Contracts contains three relevant columns: JourneyStart; JourneyEnd; and
PassageContract Acceptance (UTC).[1] (Gerstl Dec.; Exh. D.) The JourneyStart column lists March 2, 2023
at 9:30:00, and the JourneyEnd column lists March 12, 2023 at 9:30:00. (Ibid.) The PassageContract Acceptance time lists
March 2, 2023 at 17:09:55 (or 5:00 p.m. UTC).
(Ibid.) Defendant states that
Plaintiff’s cruise did not commence until 12:30 p.m. on March 2, 2023, which
was after Plaintiff accepted the Passage Contract’s terms. (Reply, p. 9:14-18.) Defendant cites a Supplemental Declaration,
but no such declaration is included with the reply papers. Further, because Defendant does not provide a
solid explanation, supported by evidence, for the meaning of JourneyStart and
JourneyEnd, the court cannot determine whether Plaintiff assented to the
Passage Contract’s terms before the cruise began.
Regardless, because Plaintiff admits that she accepted
the contract’s terms on March 2, 2023, that the alleged injuries occurred on
Defendant’s cruise ship on March 5, 2023, and presents no proof of fraud on
Defendant’s part, the Passage Contract is enforceable and applicable to her
causes of action. The proper forum for
this case is the United States District Court for the Central District of
California.
Therefore, Defendant’s motion to dismiss this case for improper
forum is granted pursuant to the Passage Contract’s forum selection clause.
CONCLUSION
Defendant Princess Cruise Lines, Ltd.’s motion to dismiss
the first amended complaint for improper forum is granted.
Defendant Princess Cruise Lines, Ltd. to give notice.