Judge Kerry Bensinger, Case Number: 23STCV24236, Date: 2024-11-22 Tentative Ruling

MOTION TO VACATE GRANTING OF DEFENDANT JASON DERULO AND ATLANTIC RECORDING CORPORATION’S MOTION TO DISMISS BASED ON C.C.P. 473(B) FOR COUNSEL’S LACK OF KNOWLEDGE OF NEW YORK’S EMPLOYMENT LAW WILL NOT PROTECT PLAINTIFF

Plaintiff Emaza Gibson (Gibson or Plaintiff) is an artist. Defendant Jason Derulo (Derulo) is a musical artist signed with major record label Atlantic Recording Corporation (Atlantic). Derulo also owns the record label Future History, Inc. (Future History). Plaintiff alleges as follows in the complaint. In or around August of 2021, Derulo contacted Gibson about an opportunity to become a successful musician. Thereafter, Gibson entered into agreements with Derulo, Atlantic, and Future History for the purpose of creating a mixtape and an album. Gibson was also to create a single record featuring Derulo.

In or around September of 2021, Gibson began working with Derulo to create her album under the Future History label. Throughout the working relationship, Derulo was difficult to communicate with, made unwanted sexual advances towards Gibson, and treated her with hostility. After an incident where Derulo aggressively approached Plaintiff and berated her for arriving late to a recording session, Gibson’s mother and manager, Sandra Bales (Bales) contacted Derulo’s manager, Frank Harris (Harris) about the incident. Harris acknowledged the incident and said there was nothing to do. Gibson also contacted Atlantic Executive Vice President Anton Ben-Horin (Ben-Horin) to discuss the hostility she felt from Derulo and difficulties communicating with Derulo. Ben-Horn acknowledged Derulo’s behavior but ultimately did nothing to address Gibson’s concerns. On September 6, 2022, Atlantic and Future History terminated the agreement with Gibson. This lawsuit followed.

On February 1, 2024, Gibson filed the operative First Amended Complaint (FAC) against Derulo, Future History, Atlantic, and Harris.[1] The FAC alleges the following causes of action:

Before the court are three motions: (1) Plaintiff’s Motion to Vacate Granting of Derulo and Atlantic’s Motion to Dismiss Based on CCP Section 473(b); (2) Future History’s Motion to Dismiss Pursuant to Code Civ. Proc. §410.30; and (3) Future History’s Demurrer to the FAC.

On March 15, 2024, Derulo and Atlantic filed a Motion to Dismiss Pursuant to the Code Civ. Proc. § 410.30.

On April 19, 2024, the motion was heard and taken under submission. On April 19, 2024, the court granted Derulo and Atlantic’s Motion to Dismiss pursuant to a forum selection clause in the agreements providing that New York law governed any disputes related to the agreements.

On July 11, 2024, Plaintiff filed this Motion to Vacate the court’s April 19, 2024, order pursuant to Code of Civil Procedure (CCP) section 473(b).

Code of Civil Procedure section 473, subdivision (b) provides that a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”¿ In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”¿ (Code Civ. Proc., § 473, subd. (b).)¿¿¿

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”¿ (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)¿¿¿

Plaintiff brings this motion for an order vacating the court’s April 19, 2024, order granting Derulo and Atlantic’s motion to dismiss based on forum non conveniens. Plaintiff seeks relief because counsel believed erroneously that Plaintiff could pursue her employment claims in New York. As Plaintiff’s counsel explains, he did not know or understand that under New York law Plaintiff, who is a Los Angeles resident, would not be able to avail herself of New York’s employment law protections un New York City Human Rights Law (NYCHRL) or New York State Human Rights Law. “[N]onresidents of the city and state must plead and prove that the alleged discriminatory conduct had an impact within those respective boundaries.” (Hoffman v. Parade Publs. (2010) 15 N.Y. 3d 285, 289 (Hoffman).) Here, Plaintiff is a resident in the County of Los Angeles, State of California, and has no intention of moving to New York in the future. (Gibson Decl., ¶ 2.) Plaintiff argues enforcing the forum selection clause would diminish Plaintiff’s employment rights and doing so would be unreasonable and unfair.

Defendants argue Plaintiff’s counsel’s ignorance of New York law does not constitute excusable neglect. Defendants further contend that the Hoffman case does not preclude Plaintiff from pressing her FEHA employment claims in New York as the Hoffman case involved claims under the NYCHRL and New York Human Rights Law, which claims Plaintiff never asserted.

Both parties miss the mark. In examining whether the forum selection clause should be enforced, the court considered whether enforcement of the clause would be unreasonable as to Plaintiff’s FEHA claims. The court concluded it would not, stating:

“As discussed above, Plaintiff argues and concedes there was no employment Agreement. Plaintiff’s argument fails for the simple reason that she fails to establish an employment relationship existed between the parties. FEHA therefore does not apply. Further, for this reason, the burden does not reverse to Moving Defendants. Plaintiff cannot (and does not) argue that the enforcement of the forum selection clause would result in the diminution of her unwaivable FEHA rights when she has not established the requisite basis for a FEHA claim.”

(Minute Order, 4/16/24.) In other words, enforcement of the forum selection clause would not result in a waiver of Plaintiff’s FEHA claims because she did not establish the existence of an employment relationship in the first instance. Plaintiff does not show she has a viable FEHA claim. Enforcement of the clause here would not result in the diminution of employment rights, which she does not have, or a waiver of a claim, which she does not have. Plaintiff does not address this portion of the court’s April 19, 2024, order.[2] Further, there is nothing in Hoffman which would direct a different result.

On May 3, 2024, Future History filed this Motion to Dismiss Pursuant to Code Civ. Proc. § 410.30.

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 simply 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.) The doctrine allows the 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.)

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.)

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.” (See Berg, supra, 61 Cal.App.4th at pp. 358-359.)

2. Portions of the Short Form Agreement between Future History and Atlantic Recording Corporation.

3. Portions of the Recording and Other Rights Agreement, which was attached as exhibit A to the Short Form Agreement.

4. Portions of the Artist Inducement Agreement which was attached as Exhibit B to the Short Form Agreement.

The court previously granted this request in connection to Derulo and Atlantic’s Motion to Dismiss.[3] (See Minute Order, 4/16/24.)

Future History moves to dismiss Gibson’s case for forum non conveniens. The motion is brought to enforce a New York forum selection clause in various agreements entered into on February 15, 2022 between Gibson, Future History, and Atlantic. The agreements are comprised of (1) an Artist Agreement between Gibson and Future History; (2) the Short Form Agreement between Future History and Atlantic; (3) Recording and Other Rights Agreement, which was attached as exhibit A to the Short Form Agreement; and (4) the Artist Inducement Agreement (“Induce Agreement”), attached as exhibit B to the Short Form Agreement (collectively, the “Agreements”).

The Artist Agreement and Inducement Agreement each provide that they are governed by New York law, and that the federal or state courts located in New York County have sole jurisdiction of any action related to the Agreements. Gibson signed both agreements with the forum selection clause. The Artist Agreement also provides that Gibson had the opportunity to consult with independent consult. The motion is brought under Code of Civil Procedure section 410.30.[4] It is identical to Derulo and Atlantic’s Motion to Dismiss.

Here, the court has already found the forum selection clause to be (1) mandatory, (2) inclusive of Plaintiff’s claims, and (3) fair and reasonable to enforce. (See Minute Order, 4/19/24.). In opposition, Plaintiff argues the Hoffman case, discussed above, directs a denial of the motion to dismiss because dismissing the action would result in the loss of her FEHA claims and leave her without any employment claims in New York. However, Plaintiff again does not contend with the threshold issue: whether Plaintiff and Defendants entered into an employment contract. Plaintiff previously argued the Agreements are not employment contracts. If as the Plaintiff argues, the Agreements do not create an employer-employee relationship, then there is no employment relationship between the parties. FEHA therefore does not apply. Plaintiff cannot argue that the enforcement of the forum selection clause would result in the diminution of her unwaivable FEHA rights when she has not established the requisite basis for a FEHA claim.

The Motion to Dismiss is GRANTED. The First Amended Complaint is DISMISSED as to Defendant Future History, Inc.

On May 3, 2024, Future History filed a demurrer to the FAC. Given the court’s ruling on Future History’s Motion to Dismiss, the court does not reach its demurrer to the FAC.

1. Plaintiff Emaza Gibson’s Motion to Vacate is Denied. Defendants to give notice.

2. Defendant Future History’s Motion to Dismiss is Granted. Moving parties to give notice.

[1] The FAC also named RCA Records as a defendant. Plaintiff dismissed RCA Records from this action on October 26, 2023.

[2] Moreover, and alternatively, Defendants’ arguments re: excusable neglect and Hoffman have merit.

[3] Plaintiff filed an opposition to the request for judicial notice, titled, “Plaintiff’s Opposition to Defendant’s Request for Judicial Notice in Support of Motion to Dismiss”. This title appears to be an error. Plaintiff’s opposition to

the request for judicial notice is not discussed with respect to the Motion to Dismiss. Rather, the substance of Plaintiff’s opposition is directed entirely at Future History’s demurrer and the allegedly improper reliance on material extrinsic to the FAC. Although extrinsic material may generally not be considered when ruling on a demurrer, Plaintiff does not provide authority that extrinsic material may not be considered when deciding a motion to dismiss.

[4] Citing Code of Civil Procedure section 418.10, Gibson argues the motion should be denied because Moving Defendants have already made a general appearance in this action. The argument lacks merit. “[F]iling the [section 410.30] motion at the outset is permissive, not mandatory, so that CCP § 418.10 does not apply to a “motion to stay or dismiss the action by a defendant who has made a general appearance” (e.g., by filing an answer). [CCP § 410.30(b); see Morris v. AGFA Corp. (2006) 144 CA4th 1452, 1460-1461, 51 CR3d 301, 307-308—motion filed one year after action commenced did not appear to be untimely, and in any event did not prejudice plaintiffs].” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2023) ¶ 3:417.2.) The motion is timely.