Judge Thomas D. Long, Case Number: 24STCV02804, Date: 2025-03-27 Tentative Ruling

On February 1, 2024, Plaintiff Hermitage Estates Limited filed this action against Defendants Hamby Limited, Jack Bistricer, Talisker Corporation, and Talisker Realty Ltd. On February 7, 2024, Plaintiff filed a Notice of Errata with the Complaint’s exhibits. The Complaint alleges nine causes of action arising out of Defendants’ breach of the parties’ 2006 settlement agreement.

On April 19, 2024, Defendants filed a motion to quash service of summons and complaint and a motion to dismiss or stay.

At the original June 6, 2024 hearing on the motions, the Court ordered limited jurisdictional discovery and supplemental briefing, and it continued the hearing.

Plaintiff’s request for judicial notice of Exhibit A is granted. The Settlement Agreement at issue arose from this case.

Plaintiff’s request for judicial notice of Exhibit B is denied as irrelevant. Defendants’ participation in a different case in this jurisdiction is irrelevant when determining personal jurisdiction in this case.

Defendants’ Objection to Plaintiff’s RJN Exhibit B: Sustained as irrelevant.

Defendants’ Objection No. 1, 19, 24: Sustained. Declarations based on “information and belief” are insufficient because they indicate something less than personal knowledge. (Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 531.)

Defendants’ Objection No. 7, 20-23, 25-26: Sustained as hearsay and for lack of foundation. Declarant is not a party to the emails and other exhibits.

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion and motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., § 581, subd. (h).)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553 (Jayone Foods).) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.)

Plaintiff argues that Defendants consented to personal jurisdiction in California through the forum selection clause in the settlement agreement that Defendants allegedly breached.

“A state may exercise jurisdiction over an individual on a number of bases, including consent and the individual’s appearance in an action. Consent is considered as one of four traditional bases for the exercise of personal jurisdiction over a nonresident defendant and it is separate from the ‘minimum contacts’ analysis. Express consent to a court’s jurisdiction will occur by generally appearing in an action or by a valid forum-selection clause designating a particular forum for dispute resolution regardless of residence.” (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658, citation omitted.)

In August 2005, Hamby filed Hamby Limited v. Barry Silverton, et al., Case No. BC338370, against Plaintiff in the Superior Court of California, County of Los Angeles. (Silverton Decl. ¶¶ 10-13.) On May 23, 2006, Plaintiff, Hamby, and others entered into a settlement agreement. (Complaint ¶ 5; see Complaint, Ex. E [“Settlement Agreement”].) Jack Bistricer signed the Settlement Agreement on behalf of Hamby. The Settlement Agreement provides, in part: “APPLICABLE LAW. This Agreement is made in, and shall be governed, construed and enforced under the laws of, the State of California, with any action brought under this Agreement to be filed in Los Angeles, California.” (Settlement Agreement at p. 13, ¶ 13.)

Defendants argue that this does not establish consent to jurisdiction, relying on Global Packaging, Inc. v. Superior Court (2011) 196 Cal.App.4th 1623 (Global Packaging). (Motion at pp. 10-12.) The clause in that case provided that any claims relating to the agreement “shall be venued only in the state or federal court in and [ ] (a) Orange County, California or (b) the jurisdiction in which the Software is located.” (Global Packaging, supra, 196 Cal.App.4th at p. 1627.) Because that clause was “phrased in terms of a county rather than of the state,” it was “void to the extent that it specifies a California county” unless the county corresponded with a proper county under Code of Civil Procedure section 395.5. (Id. at p. 1628.) The court determined that, even if construed as a forum selection clause, the clause was not valid: “If Epicor meant ‘forum,’ it should have said ‘forum,’ not ‘venue,’ and it should have specified a state (a forum), not a county (a venue).” (Id. at p. 1634.) The court also noted that the alternative venue of “the jurisdiction [i.e., the territory] in which the Software is located” was vague. (Ibid.)

The clause here “shall be governed, construed and enforced under the laws of, the State of California, with any action brought under this Agreement to be filed in Los Angeles, California.” Los Angeles County is a proper venue for an action against Hamby arising from the Settlement Agreement because the Settlement Agreement was negotiated and signed in Los Angeles. (Silverton Decl. ¶¶ 10-13; see Code Civ. Proc., § 395.5 [“A corporation or association may be sued in the county where the contract is made”].) There is no alternative venue or jurisdiction; any claim arising from the Settlement Agreement must be “filed in Los Angeles, California.” This must be interpreted as consent to litigating an action in California. It would be nonsensical to consent to an action being filed only in California without also consenting to the state’s jurisdiction, and the Court must interpret contractual language to avoid absurdities. (See, e.g., VFLA Eventco, LLC v. William Morris Endeavor Entertainment, LLC (2024) 100 Cal.App.5th 287, 297.)

B. Plaintiff Has Not Shown That Jack Bistricer, Talisker Corporation, or Talisker Realty Are Subject to This Court’s Jurisdiction.

It is undisputed that Jack Bistricer, Talisker Corporation, and Talisker Realty are not parties to the Settlement Agreement.

The Settlement Agreement “shall be binding on the Affiliates and assigns of each party.” (Settlement Agreement at p. 13, ¶ 15.) Plaintiff notes that through the Settlement Agreement, Hamby released claims “for itself and its respective predecessors (including Talisker Realty Ltd.),” and Silverton released claims against Hamby “(including Jacob Joseph Bistricer).” (Opposition at p. 15.) Plaintiff argues that “[b]y directly naming and acknowledging Bistricer and Talisker, these releases clearly evidence that these parties are integral to the contractual relationship established by the Settlement Agreement. As such, this defined and intertwining business relationship binds them to the terms of the Settlement Agreement, including the forum selection clause.” (Ibid.) Even if Jack Bistricer and Talisker Realty are third party beneficiaries of the Settlement Agreement, they are not attempting to enforce the terms of the agreement against a signatory. Plaintiff’s cited authority involved non-signatories who attempted to enforce forum selection clauses against signatory plaintiffs. (Id. at pp. 14-15.)

Plaintiff’s evidence of Jack Bistricer, Talisker Corporation, and Talisker Realty being “Affiliates and assigns” of Hamby is either inadmissible or insufficient to establish that they are indeed “Affiliates and assigns” who are bound by the Settlement Agreement’s terms. (E.g., Silverton Decl. ¶¶ 17-25.) The same evidence is also insufficient to establish sufficient minimum contacts with California. (See Opposition at pp. 15-18.)

Plaintiff’s supplemental briefing argues that Defendants are alter egos. Most of Plaintiff’s evidentiary arguments are redacted, and the corresponding exhibits are withheld as “DOCUMENT REDACTED PURSUANT TO COURT’S ENTRY OF PROTECTIVE ORDER ON JANUARY 6, 2025.” The January 7, 2025 protective order does not authorize this full redaction. To the contrary, “Nothing in this Order should be construed as placing this Proceeding, or any portion thereof, under seal, or as authorizing any Party to file any document under seal. Where any Confidential Materials or Highly Confidential Materials, or Information derived from Confidential Materials or Highly Confidential Materials, is included in any motion or other proceeding governed by California Rules of Court, Rules 2.550 and 2.551, the party shall follow those rules.” (Protective Order ¶ 12.) Plaintiff did not move to file any of its supplemental briefing under seal, and thus the redacted information is not properly before the Court—leaving Plaintiff without evidence to support the alter ego allegations.

Plaintiff has not met its initial burden of demonstrating facts justifying the exercise of jurisdiction over Jack Bistricer, Talisker Corporation, or Talisker Realty. (See Jayone Foods, Inc., supra, 31 Cal.App.5th at p. 553.)

The motion to quash is GRANTED as to Jack Bistricer, Talisker Corporation, and Talisker Realty. These defendants are DISMISSED.

Because the Court does not have personal jurisdiction over Jack Bistricer, Talisker Corporation, and Talisker Realty and dismisses the case against them, the motion to dismiss is discussed only in relation to Hamby.

When a court 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 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 a 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 (Stangvik).

The first inquiry is whether there is a suitable alternate forum for trial. (Stangvik, supra, 54 Cal.3d at p. 751.) A suitable alternate forum is one where a defendant is subject to jurisdiction and the plaintiff’s claim is not barred by a statute of limitations. (Ibid.) The alternate forum will not be considered unsuitable by virtue of the fact that it may not be as favorable to a plaintiff as the chosen forum. (Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 251-252.) However, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight. (Id. at p. 254.)

The Bahamas is a suitable alternate forum for the case against Hamby. Hamby is subject to jurisdiction there because it is domiciled there, and it is willing to submit to the jurisdiction of the courts in the Bahamas. (A. Bistricer Decl. ¶ 6.)

Ontario, Canada is also a suitable alternate forum for the case against Hamby. Hamby is willing to submit to the jurisdiction of the courts in Ontario if Plaintiff files suit there. (A. Bistricer Decl. ¶ 5.)

There is no evidence that Plaintiff’s claims are barred by a statute of limitations in either alternate forum. The alternate forum is suitable when the record is silent on this issue and there is no evidence that the action would be barred. (Zhi An Wang v. Fang (2021) 59 Cal.App.5th 907, 919-920.)

Once it is determined that a suitable alternative forum exists, the Court must “consider the private interests of the litigants and the interests of the public in retaining the action for trial in California.” (Stangvik, supra, 54 Cal.3d at p. 751.) “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” (Ibid.)

Hamby’s papers, witnesses, and other evidence needed to defend this action are located in Ontario, Canada or the Bahamas. (A. Bistricer Decl. ¶ 2.) The Bahamas is located 1,290 miles from Toronto, Ontario and 2,516 miles from Los Angeles, California; Toronto, Ontario is located 2,522 miles from Los Angeles, California. (A. Bistricer Decl. ¶ 7.) Hamby’s representatives and other identified witnesses all reside in Ontario. (A. Bistricer Decl. ¶ 3.) Plaintiff’s principals, purported shareholders, and representatives are not currently in California. (A. Bistricer Decl. ¶ 3; see Silverton Decl. ¶¶ 3, 8-9; see also Complaint ¶ 7.) Bahamian individuals are involved in the permitting and entitlement process, and Bahamians could opine on the value of the Bahamian property and related matters. (A. Bistricer Decl. ¶ 3.) This Court cannot compel the attendance of these out-of-state witnesses. (Code Civ. Proc., § 1989.) No party identifies evidence or witnesses within California.

There are already two actions pending in the Bahamas to which Plaintiff is a party, involving the same Bahamian mortgages, subject property, and subject development project alleged in Plaintiff’s complaint. (A. Bistricer Decl. ¶ 8.) Hamby is a party to one of those Bahamian actions and is seeking joinder in the other. (A. Bistricer Decl. ¶ 8.)

California’s only connection to this case is the execution of the underlying 2006 agreement and the forum selection clause. All other private and public interests weigh against maintaining this action in California.

The motion to quash is GRANTED as to Jack Bistricer, Talisker Corporation, and Talisker Realty. These defendants are DISMISSED.

The motion to dismiss is MOOT as to Jack Bistricer, Talisker Corporation, and Talisker Realty.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court