Judge: Shirley K. Watkins, Case: 22VECV01578, Date: 2023-03-02 Tentative Ruling

Case Number: 22VECV01578    Hearing Date: March 2, 2023    Dept: T

            [TENTATIVE] ORDER:  Defendant Ford Motor Company’s Motion to Dismiss is       DENIED.

            Defendant Ford Motor Company’s Request for Judicial Notice is GRANTED but not as        to any facts in dispute or hearsay.

            Defendants Galpin Motors Inc., Bert Boeckmann, Eduardo Encinas, Daniel Sterkel, and    Carlos Gusman’s request for joinder to Defendant Ford Motor Company’s Motion to            Dismiss is GRANTED. 

Introduction

            Defendant Ford Motor Company (Defendant) moved to dismiss Plaintiffs Michael Yadegari and Scott Goldwater’s (Plaintiffs) First Amended Complaint (FAC) for lack of jurisdiction.

            Procedure

            Defendant argued that Plaintiffs’ Opposition and the concurrently filed Declaration of Scott Goldwater, filed on February 9, 2023, is improper and should be disregarded.  The court agrees and does not consider late filed papers or the response thereto.  No leave or court was granted to file a "sur-reply" nor is such authorized.

            Discussion 

            Defendant argued that the FAC must be dismissed under Code of Civil Procedure sections 410.30 and 418.10 because the “Order Terms & Conditions (9/28/21)” (Contract/Order) entered by the parties on April 8, 2022 included a forum selection clause, venue selection clause, and a choice of law provision setting Michigan law and Michigan as having jurisdiction.  (Defendant’s Request for Judicial Notice (RJN), Exh. 1, Contract/Order sec. 14.) 

            Plaintiffs argued that Michigan courts will not afford Plaintiffs the protections found in the Consumer Legal Remedies Act (CLRA) (Civ. Code sec. 1750 et seq.)  In an action under the CLRA, the party relying on a forum-selection clause must prove that enforcement of the clause would not diminish substantive rights of California consumers under the Act.  (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 9-10 (AOL.)) 

"The trial court in this case concluded that because Mendoza seeks recovery, in part, under the CLRA (Civ. Code, §§ 1750 et seq.), which contains a statutory anti-waiver provision like that involved in Wimsatt, the burden of proof was on AOL to prove that enforcement of the forum selection clause would not result in a significant diminution of rights to California consumers. We agree. In comparing the purpose and remedies afforded to California franchisees under the FIL to those afforded California consumers under the CLRA, we find identical policy considerations which command shifting the burden of proof here to AOL, the party seeking enforcement of the forum selection clause, as was done in Wimsatt.

The FIL and the CLRA were each enacted to protect the statute's beneficiaries from deceptive and unfair business practices. (Corp. Code, §§ 31000 et seq.; Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1077 (Broughton).) Each statutory scheme embodies strong remedial provisions for violations of the statute. (For remedies under the FIL, see Corp. Code, §§ 31004, 31300, 31302, 31302.5, and 31400- 31405. For remedies under the CRLA, see Civ. Code, §§ 1752, 1780, subds. (a)(1)-(4), (b) (d), 1781, and 1783.)

Important to the trial court's finding is the fact that the CLRA, like the FIL, embeds in its statutory scheme a provision prohibiting waivers by consumers of any of these remedies. Civil Code section 1751 warns: "Any waiver by a consumer of the provisions of this title is contrary to public policy and shall be unenforceable and void."

America Online v. Superior Court, supra, 90 Cal.App.4th 1, 10-11. 2001)

Even a voluntary forum-selection agreement may be unenforceable if it would violate a strong California public policy or result in evasion of statutes enacted for the protection of California citizens.  (Drulias v. 1st Century Bancshares, Inc., supra, 30 Cal.App.5th at 703; Hall v. Superior Court (1983) 150 Cal.App.3d 411, 416-418.)  Defendant dismissed this issue by merely asserting in conclusory fashion that Plaintiffs’ contention is unsupported by law and irrelevant.  Defendant ignored Plaintiffs’ citation to the AOL case and failed to present facts or authority to support their contention that Plaintiffs’ argument is unmerited.  It is Defendant’s burden to show that California consumer substantive rights will not be diminished in Michigan.  Defendant failed to meet their burden.  Due to Defendant’s failure to meet their burden, the motion to dismiss is unpersuasive.

The motion to dismiss is DENIED.

As the court has denied the motion upon the grounds stated above, it does not address the remaining issues of the motion, as MOOT.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.