Judge Olivia Rosales, Case Number: 23NWCV01672, Date: 2023-12-15 Tentative Ruling

Judge: Olivia Rosales, Case: 23NWCV01672, Date: 2023-12-15 Tentative Ruling

Case Number: 23NWCV01672 Hearing Date: December 15, 2023 Dept: F

Performance Marketing v. thor motor coach, et al.

CASE NO.: 23NWCV01672

HEARING: 12/15/23 @ 10:30 AM

JUDGE: OLIVIA ROSALES

Tentative Ruling

Defendant’s Motion to Stay is GRANTED.

Moving Party to give NOTICE.

Thor Motor Coach, Inc. (Defendant) moves for an order staying this action pursuant to a forum selection clause.

Background

Plaintiff Performance Marketing, LLC (Plaintiff) filed a Complaint against Defendants Thor Motor Coach, Inc. and Mike Thompson RV alleging violation of the Song-Beverly Act related to Plaintiff’s purchase of a 2022 Thor Industry 23TW RV. Defendant argues that the warranty contains a forum selection clause which provides that Indiana is the exclusive jurisdiction for claims under the warranty.

Legal Standard

Ordinarily the party opposing enforcement of a forum selection clause bears the burden of proving enforceability, however, “that burden is reversed when the claims at issue are based on unwaivable rights created by California statutes.” (Verdugo v. Alliantgroup L.P. (2015) 237 Cal.App.4th 141, 147.)

Discussion

Defendant has met its burden of proving that the forum selection clause is enforceable because Plaintiff’s Song-Beverly Act rights can be readily preserved and the forum selection clause is not unconscionable. First, Plaintiff argues that a stipulation to not oppose applying the Song-Beverly Act in Indiana will not preserve Plaintiff’s rights because the Indiana court must determine whether to apply California Song-Beverly Act to the matter in Indiana. However, this concern can be remedied by staying this matter while the Indiana case is pending and should the Indiana court decline to apply the Song-Beverly Act, then Plaintiff can move to lift the stay on this matter. Second, Plaintiff argues that the warranty clause is unconscionable because it is a contract of adhesion. “A forum selection clause need not be subject to negotiation to be enforceable. [Citations.] Rather, a forum selection clause contained in a contract of adhesion, and thus not the subject of bargaining, is ‘enforceable absent a showing that it was outside the reasonable expectations of the weaker or adhering party or that enforcement would be unduly oppressive or unconscionable.’ [Citations.]” (Drulias v. 1st Century Bancshares, Inc. (2018) 30 Cal.App.5th 696, 707-708.) Plaintiff fails to show that the forum selection clause is unreasonable or oppressive. Plaintiff also argues that it did not agree to the terms of the warranty including the forum selection clause because there is no evidence that it received the full warranty. First, Plaintiff is availing itself of the warranty by filing this action and cannot now claim that it should relieved of its obligations but be granted the privileges under the warranty. Second, Plaintiff signed the Warranty Registration Form which contains the forum selection clause. (Koehn Decl. Ex. B.) Therefore, the forum selection clause is enforceable because Defendant has met its burden of proving that Plaintiff signed the forum selection clause and Plaintiff’s Song-Beverly Rights can be readily preserved.

Accordingly, Defendant’s Motion to Stay is GRANTED. This matter is stayed during the pendency of the matter in Indiana courts. Defendant is to sign a stipulation to not oppose the application of California law in Indiana courts and should the Indiana courts decline to apply Plaintiff’s Song-Beverly Act rights in their jurisdiction, Plaintiff may move to lift the stay in this Court.