TENTATIVE RULING

Defendant Invasix, Inc.’s Motion to Dismiss or Stay the Cross-Complaint on Forum Non Conveniens Grounds is DENIED.

Defendant Invasix, Inc. to give notice. 

REASONING

Defendant/Cross-Defendant Invasix, Inc. (“Invasix”) moves the Court for an order dismissing or staying this action on the ground that Defendant/Cross-Complainant Abdelmajid Sabour, MD aka Majid Sabour, MD entered into a Customer Purchase Agreement and Terms and Conditions Addendum to Customer Purchase Agreement Between Customer and Company containing a mandatory forum selection clause designating the State of Delaware as the exclusive forum for any action arising or relating to the agreement.

“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.” (Trident Labs, Inc. v. Merrill Lynch Commercial Finance Corp. (2011) 200 Cal.App.4th 147, 153, quotation marks omitted.) “In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens under Code of Civil Procedure sections 410.30 and 418.10, but a motion based on a forum selection clause is a special type of forum non conveniens motion.” (Berg v. MTC Electronics Technologies (1998) 61 Cal.App.4th 349, 358, citation omitted.) “The burden of proof is on the plaintiff, and the factors involved in traditional forum non conveniens analysis do not control. 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.” (Id. at p. 154, citation and quotation marks omitted.) “Such clauses provide a degree of certainty, both for businesses and their customers, that contractual disputes will be resolved in a particular forum,” so “California courts routinely enforce forum selection clauses even where the chosen forum is far from the plaintiff’s residence.” (Net2Phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583, 588.)

Here, Invasix seeks to enforce a forum selection clause contained within the Terms and Conditions Addendum to Customer Purchase Agreement Between Customer and Company, which provides as follows:

9. Venue for all disputes. Customer agrees that in the event there is any dispute

arising out of, or relating, to the Customer Purchase Agreement and these Terms

and Conditions, the venue of any such dispute will be the State of Delaware, which

shall have sole jurisdiction for any dispute.

(Mot., Isfeld Decl. ¶ 5, Ex. D.)

Insofar as Defendants/Cross-Complainants Abdelmajid Sabour, MD aka Majid Sabour, MD; Majid Sabour MD PC; and Resplendence Medspa (“Cross-Complainants”) contend that Invasix’s motion is moot because it was not timely filed, this would not render the motion moot, which means that the Court’s ruling would “have no practical effect” or would not “provide the parties with effective relief.” (Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.) As to whether the motion was timely filed, the Court lacks a proof of service of the cross-complaint to determine whether it is timely.

However, the Court finds it would be unreasonable to dismiss the cross-complaint against Invasix based on the forum selection clause. The Court notes that “[m]ere inconvenience or additional expense is not the test of unreasonableness for a mandatory forum selection clause.” (Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358, ellipses and quotation marks omitted.) Rather, “California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state’s public policy” or where enforcing the clause would impair a party’s efforts to “accomplish substantial justice.” (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 12.) Here, Invasix is both a defendant to the complaint and a cross-defendant to the cross-complaint, and Invasix has filed its own cross-complaint in this action to seek indemnity and contribution against two parties. It is clear that all pleadings relate to the same occurrences and conduct, making the cross-complaint against Invasix a compulsory cross-complaint, such that it is not clear that Cross-Complainants could bring another action in Delaware. (Code Civ. Proc., §§ 426.10, subd. (c); 426.30, subd. (a).) Further, only one of the Cross-Complainants is alleged to have signed the forum selection clause, and the Court cannot conclude that the other Cross-Complainants sought to bind themselves in any way to litigate in Delaware.

Moreover, Invasix essentially seeks to take one small piece of this case and litigate it in Delaware while keeping the rest of the case in California, apparently including Invasix’s cross-complaint, which it has failed to address in either its motion or reply. It follows that the Court lacks a basis to conclude that all parties would be able to have complete relief where Invasix seeks to take one indemnity claim out of the action and litigate elsewhere. Additionally, all parties stand a risk of inconsistent liability determinations because Invasix fails to describe the procedure by which it would litigate the cross-complaint against it in Delaware in a manner that accounts for parallel litigation in California. The Court need not address Invasix’s other arguments because it is clear that enforcement of the forum selection clause would be unreasonable here given that only one of the cross-complainants was party to the agreement, and complete relief cannot be given with the omission of this cross-complaint. Accordingly, Defendant Invasix, Inc.’s Motion to Dismiss or Stay the Cross-Complaint on Forum Non Conveniens Grounds is DENIED.