Judge: Michael E. Whitaker, Case: 20STCV29016, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV29016    Hearing Date: September 29, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Claire Miller-Simmons (“Claire”)^[1], Jerry Simmons (“Jeffrey”), Alice McMurrin (“Alice”), and Wendell McMurrin (“Wendell”) sustained back injuries while Claire and Alice were being transported on a bus during a shore excursion provided by Defendant Alaska Hotel Properties, LLC, dba Princess Lodges (“Defendant”) in connection with their travel from Copper River Princess Wilderness Lodge to Denali Princess Wilderness Lodge. Jeffrey and Wendell have derivative loss of consortium claims based on their wives’ injuries.

Defendant now moves to dismiss this action based on an improper forum, contending that this matter must be litigated in the United States District Court for the Central District of California, because in order to book a cruise aboard one of Defendant’s vessels, a passenger (or the passenger’s agent) must agree to the terms of Defendant’s form contract (the “Passage Contract”). Plaintiffs oppose the motion.

ANALYSIS

Evidentiary Objections

Plaintiffs object to portions of the James Colwell Declaration. The Court rules as follows: (1) overruled; and (2) overruled.

Legal Standard

Defendant moves to dismiss this action “for inconvenient forum,” pursuant to Code of Civil Procedure section 410.30, which states: “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.”

Whether Defendant’s Passage Contract is a valid, binding agreement

It is undisputed that the Passage Contract contains a forum selection clause whereby lawsuits are to be brought in the United States District Court for the Central District of California. The relevant language of the Passage Contract states as follows:

(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 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.

(Colwell Decl. Ex. 3 ¶ 15(B)(i).) Therefore, pursuant to the terms of the Passage Contract, this action should be litigated in a different forum.

However, Plaintiffs dispute whether the Passage Contract’s forum selection clause is valid and binding.

The Court must enforce forum selection clauses unless enforcement would be “unreasonable under the circumstances.” (M/S Bremen v. Zapata Off-Shore Co. (1972) 407 U.S. 1, 10 (M/S Bremen).) Specifically, Plaintiffs must demonstrate that it would be unreasonable or fundamentally unfair to enforce the otherwise valid clause. (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 495.) Plaintiffs have the heavy burden to defeat the forum selection clause. (M/S Bremen, supra, 407 U.S. at pp. 17-19; see also Schlessinger v. Holland America (2004) 120 Cal.App.4th 552, 558 [“Both California and federal law presume a contractual forum selection clause is valid and place the burden on the party seeking to overturn the forum selection clause.”].)

The Court finds that enforcement of the clause is reasonable and just. Plaintiffs are all residents of the counties of Los Angeles and San Diego. (Complaint ¶ 1.) They live near the United States District Court for the Central District of California, which is near the state forum they also chose.

Plaintiffs’ arguments regarding unreasonable notice are unavailing.

 The “reasonable communicativeness” test requires courts to conduct a two-pronged analysis. (Wallis ex. rel. Wallis v. Princess Cruises, Inc. (9th Cir. 2002) 306 F.3d 827, 835–836.) “First, a court must examine the facial clarity of the ticket contract and whether its language and appearance make the relevant provisions sufficiently obvious and understandable.” (Lousararian v. Royal Caribbean Corp. (1st Cir. 1991) 951 F.2d 7, 8 (Lousararian).) And second, a court must consider any “extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake.” (Shankles v. Costa Armatori (1st Cir. 1983) 722 F.2d 861, 865 (Shankles).) “This precedent is designed to give passengers a fair chance to learn about conditions affecting their legal rights that otherwise might be buried within ‘the fine print of adhesion contracts of passage.’” (Lousararian, supra, 951 F.2d at p. 8, citing Shankles, supra, 722 F.2d at p. 864.) “The ‘reasonable communicativeness’ of a particular ticket in particular circumstances is a question of law and, barring a genuine dispute of material fact, the determination is appropriate for resolution at the summary judgment stage of the case.” (Lousararian, supra, 951 F.2d at p. 9.)

The Court addresses the first prong.

The Passage Contract is an 18-page agreement is titled, “Princess Cruise Lines, Ltd. Passage Contract.” Under the title is an “IMPORTANT NOTICE TO GUESTS.” This notice, in its entirety, states:

IMPORTANT NOTICE TO GUESTS: PLEASE CAREFULLY READ THE FOLLOWING PASSAGE CONTRACT TERMS THAT GOVERN ALL DEALINGS BETWEEN YOU AND CARRIER, AFFECT YOUR LEGAL RIGHTS AND ARE BINDING ON YOU, TO THE FULL EXTENT PERMITTED BY LAW; PARTICULARLY SECTION 12 GOVERNING THE PROVISION OF MEDICAL AND OTHER PERSONAL SERVICES, SECTIONS 13 AND 14 LIMITING CARRIER’S LIABILITY FOR YOUR DEATH, ILLNESS, INJURY, OR DAMAGE CLAIMS RELATING TO BAGGAGE OR PERSONAL PROPERTY, AND SECTION 15 LIMITING YOUR RIGHT TO SUE, AND REQUIRING ARBITRATION AND WAIVER OF JURY TRIAL FOR CERTAIN CLAIMS.

(Colwell Decl. Ex. 3 at p. 1.) The introductory paragraph notes that the document below is a contract that affects passengers’ legal rights. It then draws the reader’s attention to Sections 12, 13, 14, and 15 of the agreement in particular. Section 15 contains the forum selection clause. That clause as given in full above, is clear about how Plaintiffs have to bring legal actions in a particular forum.

The first prong of the “reasonable communicativeness” test requires courts to examine the physical characteristics of the agreement in question. (Corna v. American Hawaii Cruises, Inc. (D. Haw. 1992) 794 F.Supp. 1005, 1008 (Corna).) Courts must consider “[f]eatures such as size of type, conspicuousness and clarity of notice on the face of the [contract], and the ease with which a passenger can read the provisions [therein].” (Shankles, supra, 722 F.2d at p. 864.)

The Court finds that the physical characteristics of the Passage Contract “reasonably communicate” the existence of a forum selection clause therein. First, the “size of type” is not an issue in this case. The Passage Contract must be accepted on Defendant’s website, (Colwell Decl. ¶¶ 16-17.) Second, the existence of the forum selection clause is adequately disclosed by the “IMPORTANT NOTICE” on the first page of the Passage Contract. (See Walker v. Carnival Cruise Lines (N.D. Cal. 1999) 63 F.Supp.2d 1083, 1088 [finding that the appearance of the contract reasonably communicated the forum selection clause because “[t]he first page of the contract contain[ed] a conspicuous, underlined, all caps warning” that stated the document “is a legally binding contract” and specifically referenced the section of the agreement containing the forum selection clause].) Like the Walker notice, Defendant’s notice: (1) is on the first page of the contract, (2) is conspicuous, bolded, and in all caps, (3) states that the document below is a contract, and (4) makes special reference to “Section 15” of the agreement, the section containing the forum selection provision. Therefore, the first two factors of the analysis – “size of type” and conspicuousness – weigh in Defendant’s favor.

Plaintiffs do not deny that the appearance of the Passage Contract “reasonably communicates” the existence of a forum selection clause. Nor do Plaintiffs contest the clarity of the contractual language. Instead, Plaintiffs argue that there was nothing conspicuous on the documents seen by Plaintiffs, which includes only the ETICKET they received. The Court addresses that argument in the second prong.

The Court next addresses the second prong.

Under the second prong of the analysis, courts must “consider the circumstances surrounding the passenger’s purchase and subsequent retention of the contract” in order to determine whether the passenger had the opportunity to become informed about its contents. (Corna, supra, 794 F.Supp. at p. 1008.) “The passenger’s lack of actual knowledge of [a] limitations clause does not render [the] limitations clause unenforceable.” (Coleman v. Norwegian Lines (W.D. Mo. 1991) 753 F.Supp. 1490, 1497.) “It is misleading to focus on whether [the passenger] actually read the contract; rather the proper focus is on whether she had the opportunity to read it.” (Barkin v. Norwegian Caribbean Lines (D. Mass. 1987) 1988 AMC 645, 648 (Barkin).) ‘“The passenger who omits to read [the contract] takes the risk of omission.”’ (Marek v. Marpan Two, Inc. (3rd Cir. 1987) 817 F.2d 242, 247, citing Murray v. Cunard S.S. Co., Ltd. (1923) 235 N.Y. 162, 166.)

Plaintiffs argue that there was nothing conspicuous on the documents seen by Plaintiffs, which includes only the ETICKET they received.

But Plaintiffs’ argument overlooks that they had several opportunities to see the Passage Contract, including on Defendant’s website, and Plaintiffs acknowledged that they had read and “accepted” the terms of the Passage Contract in order to access any documents or information regarding the cruise, including, but not limited to, their boarding passes. (Colwell Decl. ¶¶ 16-17.) The critical issue is whether Plaintiffs had an opportunity to read the Passage Contract, not whether it was actually presented to them. (Barkin, supra, 1988 AMC at p. 648.) Plaintiffs had the opportunity – more than one year– to read the agreement. They could have requested a copy from their travel agent, Costco. They also could have accessed the agreement via Defendant’s website at any time. Thus, Plaintiffs were adequately “on notice” of the forum selection clause.

Alternatively, “notice of important conditions of a passage contract can be imputed to a passenger who has not personally received the ticket or possession thereof.” (Gomez v. Royal Caribbean Cruise Lines (D.P.R. 1997) 964 F.Supp. 47, 50; see De Carlo v. Italian Line (S.D.N.Y. 1976) 416 F.Supp. 1136, 1137 [finding that, although the plaintiff “neither saw the ticket nor knew of the limitations provision therein,” she was “legally chargeable with notice” because “her travel companion had the ticket in her possession for some time, both prior to and during the voyage”]; Foster v. Cunard White Star, Ltd. (2d. Cir. 1941) 121 F.2d 12, 13 [finding that the plaintiff can be “charged with notice of the limitation [in the passage contract] since her brother, who purchased the ticket for her (as well as for himself, as he was also a passenger), had it in his possession for some 17 days before the voyage commenced”].)

Here, Plaintiffs purchased the tickets through their travel agent, Costco, whose knowledge of the Passage Contract is directly imputed to Plaintiffs as their agent. Plaintiffs have not otherwise provided any evidence to the contrary that Costco was either not presented with the Passage Contract or did not expressly agree to the terms of the agreement prior to accessing Plaintiffs’ boarding passes.

            Based upon the evidence provided by Defendant, and in considering the counter evidence provided by Plaintiffs, the Court concludes that this forum is the proper forum and the litigation proceed in United States District Court for the Central District of California.

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to dismiss for an improper forum. The Passage Contract between Plaintiffs and Defendant is valid and enforceable, and the forum selection clause in the Passage Contract bars Plaintiffs from bringing their complaint in this Court.

Defendant shall provide notice of this Court’s ruling and file a proof of service of such.