Thomson v. Lo Presti Speed Merchants

Filed 11/23/05 Thomson v. Lo Presti Speed Merchants CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BRETT D. THOMSON et al., Plaintiffs and Appellants, v. LO PRESTI SPEED MERCHANTS, INC., Defendant and Respondent.

B180583 (Los Angeles County Super. Ct. No. LC068799)

APPEAL from an order of the Superior Court of Los Angeles County, Richard G. Kolostian, Sr., Judge. Affirmed.

Mchaelis, Montanari & Johnson, Garry L. Montanari and Wesley S. Wenig for Plaintiffs and Appellants.

Kern & Wooley LLP, R. M. Kern and Michael H. Raichelson for Defendant and Respondent.

I. INTRODUCTION

Plaintiffs, Brett D. Thomson and Doll Electric Company, Inc., appeal from a dismissal order in favor of defendant, LoPresti Speed Merchants, Inc., a Florida corporation. We conclude: California does not have jurisdiction of this dispute; the parties’ forum selection clause warrants litigation of this dispute in Florida; and the trial court did not abuse its discretion in declining to allow further delay to allow plaintiffs to commence discovery. Accordingly, we affirm the dismissal order.

II. BACKGROUND

This action arose out of the June 2002 emergency landing of an airplane in California. Plaintiffs alleged as follows. Defendant contracted to install a quick oil drain assembly in an aircraft engine. Defendant did so negligently. The negligent installation caused the aircraft engine to fail and made the emergency landing necessary. Plaintiffs suffered damages including the destruction of the engine, loss of use of the aircraft, and repair costs. Plaintiffs asserted causes of action for negligence and contract breach.

Defendant filed a motion to quash service of the summons and to dismiss the complaint on insufficient contacts grounds. Defendant presented evidence: the contract was entered into in Florida; defendant’s sole facility is in Florida; defendant is incorporated in Florida; all installation work was performed at defendant’s facility in Florida; defendant is not incorporated, is not licensed to do business, and does not have any facilities in California; defendant has never had a California facility; after the work was completed in Florida, plaintiffs flew the aircraft to California; plaintiffs contracted with Tule River Aero-Industries for annual aircraft inspections; Tule River Aero-Industries is an independent California entity; Tule River Aero-Industries is a dealer of defendant’s products; but Tule River Aero-Industries sells other manufacturer’s products and services as well; defendant has never received any funds for any of the work performed for plaintiffs by Tule River Aero-Industries; plaintiffs specifically agreed venue would be in Florida and the contract would be governed by Florida law; the invoices that Mr. Thomson signed stated, “The venue of any action arising [here]under shall be exclusively the Circuit Court of Indian River County, Florida and the law of the State of Florida shall apply”; a declaratory relief action brought by defendant against its insurer arising out of this incident is pending in a Florida court; defendant was served with process by mail in Florida; and all of the potential witnesses are located in Florida.

In their opposition, plaintiffs asserted defendant had sufficient contacts with California. Plaintiffs presented evidence: defendant advertised in at least one aviation publication that was mailed to Mr. Thomson in California; defendant communicated with Mr. Thomson in California by facsimile, e-mail, and telephone; defendant faxed price quotes to Mr. Thomson in California; all solicitations, discussions, and negotiations between Mr. Thomson and defendant occurred while he was in California; Mr. Thomson sent two deposits totaling $17,936 to defendant from California; Mr. Thomson delivered the aircraft to defendant in Florida; Mr. Thomson later retrieved the aircraft from Florida and returned it to California; defendant advised Mr. Thomson to take the aircraft to its California Regional Modification Center at Tule River Aero-Industries in Porterville, California, for an annual inspection and Mr. Thomson did so; on an unspecified date, defendant’s website advertised, “‘See us at [Aircraft Owners and Pilots Association] Expo Booth 1856 in Long Beach[, California]’”; defendant was listed as an exhibitor at the Aircraft Owners and Pilots Association Expo in Long Beach in 2004; the Aircraft Owners and Pilots Association also held its Expo in California in 2002 and 2000; and on an unspecified date on or before November 24, 2004, defendant’s website identified the Tule River Aero-Industries facility as a “‘LOPRESTI Regional Modification Center,’” and described it as “‘Our newest modification center.’”

Plaintiffs further asserted that if the trial court found they had not met their burden to show sufficient contacts, it should continue the hearing to allow them to conduct discovery. Plaintiffs argued simply: “Proposed jurisdictional discovery would include depositions, interrogatories, and requests for production of documents calculated to lead to the discovery of admissible evidence concerning each of [defendant’s] California contacts as discussed in this opposition, as well as other potential bases for the exercise of personal jurisdiction over [defendant].” Plaintiffs’ counsel declared: “I believe that discovery on jurisdictional matters would reveal that [defendant] established a physical presence in California at the three [Aircraft Owners and Pilots Association] Expos . . . and engaged in direct marketing of its products in California to California residents, with full knowledge that the products would be used in California.”

The trial court denied the further discovery request, granted the motion to quash service of the summons and dismissed the action. This appeal followed.

III. DISCUSSION

A. The Jurisdiction Determination

1. Standard of review

The Supreme Court set forth the applicable standard of review in Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449: “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. (State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1557 [] [, disapproved on another point in Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 465, fn. 8].) Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Burger King [Corp. v. Rudzewicz (1985)] 471 U.S. [462,] 476-477 [].) When there is conflicting evidence, the trial court’s factual determinations are not disturbed on appeal if supported by substantial evidence. (Felix v. Bomoro Kommanditgesellschaft (1987) 196 Cal.App.3d 106, 111 [].) When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record. (Great-West Life Assurance Co. v. Guarantee Co. of North America (1988) 205 Cal.App.3d 199, 204 [].)” (Accord, Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)

2. Judicial jurisdiction over nonresidents

The California Supreme Court discussed the constitutional parameters of state court jurisdiction—general and specific—over nonresidents in Cornelison v. Chaney (1976) 16 Cal.3d 143, 147-148, as follows: “A California court may exercise judicial jurisdiction over nonresidents on any basis not inconsistent with the United States Constitution or the California Constitution. (Code Civ. Proc.,[^[1]] § 410.10.) In a significant line of cases beginning with Internat. Shoe Co. v. Washington (1945) 326 U.S. 310 [], the United States Supreme Court has defined the parameters of the power of the states to compel nonresidents to defend suits brought against them in the state’s courts. (Hanson v. Denckla (1958) 357 U.S. 235 []; McGee v. International Life Ins. Co. (1957) 355 U.S. 220 []; Perkins v. Benguet Mining Co. (1952) 342 U.S. 437 []; Traveler’s Health Assn. v. Virginia (1950) 339 U.S. 643 [].) The general rule is that the forum state may not exercise jurisdiction over a nonresident unless his relationship to the state is such as to make the exercise of such jurisdiction reasonable. (Internat. Shoe [Co. v. Washington, supra, 326 U.S.] at p. 320 []; see Rest.2d Conf. of Laws, § 24.) [¶] If a nonresident defendant’s activities may be described as ‘extensive or wide-ranging’ (Buckeye Boiler Co. v. Superior Court (1969) 71 Cal.2d 893, 898-899 []) or ‘substantial . . . continuous and systematic’ (Perkins v. Benguet Mining Co., supra, 342 U.S. 437, 447-448 []), there is a constitutionally sufficient relationship to warrant jurisdiction for all causes of action asserted against him. In such circumstances, it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum. [¶] If, however, the defendant’s activities in the forum are not so pervasive as to justify the exercise of general jurisdiction over him, then jurisdiction depends upon the quality and nature of his activity in the forum in relation to the particular cause of action. In such a situation, the cause of action must arise out of an act done or transaction consummated in the forum, or defendant must perform some other act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. Thus, as the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts, and fairness is assured by limiting the circumstances under which the plaintiff can compel him to appear and defend. The crucial inquiry concerns the character of defendant’s activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction. (Hanson v. Denckla, supra, 357 U.S. 235, 250-253 []; McGee v. International Life Ins. Co., supra, 355 U.S. 220, 223 []; Buckeye Boiler Co. v. Superior Court, supra, 71 Cal.2d 893, 898-899; see 14 West’s Annot. Code Civ. Proc. (1973 ed.) § 410.10, p. 459 [Deering’s, Code Civ. Proc., § 410.10, p. 667], for the Judicial Council’s extensive comment on the bases of jurisdiction.)” (Fns. omitted; accord, Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at pp. 444-446; Secrest Machine Corporation v. Superior Court (1983) 33 Cal.3d 664, 668-669.)

In Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at page 1062, the California Supreme Court discussed at length the three-pronged specific jurisdiction determination: “‘When determining whether specific jurisdiction exists, courts consider the “‘relationship among the defendant, the forum, and the litigation.’” (Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414 [], quoting Shaffer v. Heitner (1977) 433 U.S. 186, 204 [].) A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the defendant has purposefully availed himself or herself of forum benefits” (Vons [Companies, Inc. v. Seabest Foods, Inc.], supra, 14 Cal.4th at p. 446); (2) “the ‘controversy is related to or “arises out of” [the] defendant’s contacts with the forum’” (ibid., quoting Helicopteros [Nacionales de Colombia v. Hall], supra, 466 U.S. at p. 414); and (3) “‘the assertion of personal jurisdiction would comport with “fair play and substantial justice”’” (Vons [Companies, Inc. v. Seabest Foods, Inc.], supra, 14 Cal.4th at p. 447, quoting Burger King Corp. v. Rudzewicz [, supra,] 471 U.S. [at pp.] 472-473 [] . . . .)’ (Pavlovich [v. Superior Court (2002)] 29 Cal.4th [262,] 269.)”

The Supreme Court has held with respect to the purposeful availment prong of the specific jurisdiction inquiry: “‘“This prong is only satisfied when the defendant purposefully and voluntarily directs [its] activities toward the forum so that [it] should expect, by virtue of the benefit [it] receives, to be subject to the court’s jurisdiction based on” [its] contacts with the forum.’ (Pavolich [v. Superior Court], supra, 29 Cal.4th at p. 269, quoting U.S. v. Swiss American Bank, Ltd. (1st Cir. 2001) 274 F.3d 610, 623-624.) Thus, purposeful availment occurs where a nonresident defendant ‘“purposefully direct[s]” [its] activities at residents of the forum’ (Burger King [Corp. v. Rudzewicz], supra, 471 U.S. at p. 472), ‘“purposefully derive[s] benefit” from’ its activities in the forum (id. at p. 473), ‘create[s] a “substantial connection” with the forum’ (id. at p. 475), or ‘has created “continuing obligations” between [itself] and residents of the forum’ (id. at p. 476). By limiting the scope of a forum’s jurisdiction in this manner, the ‘“purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts . . . .’ (Id. at p. 475). Instead, the defendant will only be subject to personal jurisdiction if ‘“it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the state.’” (Pavolich [v. Superior Court, supra, 29 Cal.4th] at p. 269, quoting World-Wide Volkswagen Corp. v. Woodson [(1980)] 444 U.S. [286,] 297.)” (Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at pp. 1062-1063.)

With respect to the second prong of the specific jurisdiction test—the relatedness requirement—the Supreme Court has held: “[W]e [have] adopted a substantial connection test and held that the relatedness requirement is satisfied if ‘there is a substantial nexus or connection between the defendant’s forum activities and the plaintiff’s claim.’ ([Vons Companies, Inc. v. Seabest Foods, Inc.], supra, 14 Cal.4th at p. 456.) [¶] In adopting this test, we observed that ‘for the purpose of establishing jurisdiction the intensity of forum contacts and the connection of the claim to those contacts are inversely related.’ (Vons [Companies, Inc. v. Seabest Foods, Inc.], supra, 14 Cal.4th at p. 452.) ‘[T]he more wide ranging the defendant’s forum contacts, the more readily is shown a connection between the forum contacts and the claim.’ (Id. at p. 455.) Thus, ‘[a] claim need not arise directly from the defendant’s forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction.’ (Id. at p. 452.) Moreover, the ‘forum contacts need not be directed at the plaintiff in order to warrant the exercise of specific jurisdiction.’ (Id. at p. 455.) Indeed, ‘“‘only when the operative facts of the controversy are not related to the defendant’s contact with the state can it be said that the cause of action does not arise from that [contact].’”’ (Id. at p. 455, quoting Third Nat. Bank in Nashville v. Wedge Group Inc. (6th Cir. 1989) 882 F.2d 1087, 1091.)” (Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1068.)

The third prong of the specific jurisdiction analysis addresses fair play and substantial justice. The Supreme Court has held: “In making this [fairness] determination, the ‘court “must consider the burden on the defendant, the interests of the forum State, and the plaintiff’s interest in obtaining relief. It must also weigh in its determination ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.’”’ ([Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th] at p. 476, quoting Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 113 [].)” (Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1070.)

3. Application to the present case

The relevant facts are undisputed. Plaintiffs contend defendant’s contacts with this state are sufficient to warrant exercising general jurisdiction over it in that: defendant advertised in at least one aviation publication that was mailed to Mr. Thomson in California; an employee of defendant was physically present in California for the 2004 Aircraft Owners and Pilots Association Expo; an employee of defendant may have been physically present in California for the 2000 and 2002 Expos (as further discovery would reveal); and defendant delivered its product to a California consumer for use in California in that it modified plaintiffs’ aircraft. We find this activity is not substantial, wide-ranging, continuous or systematic and does not justify the assertion of general jurisdiction over defendant. (See e.g., Cornelison v. Chaney, supra, 16 Cal.3d at pp. 148-149 [defendant hauler’s 20 trips into state per year, his independent contractor relationship with a local broker, and his Public Utilities Commission license, did not justify the exercise of general jurisdiction over him]; Boaz v. Boyle & Company, Inc. (1995) 40 Cal.App.4th 700, 717-718 [no general jurisdiction over defendant whose activities “were limited to targeted mailers to physicians and advertising, principally if not entirely in national medical or medically related publications”].)

Plaintiffs contend defendant maintained a regional modification center in California, which acted as its agent. Plaintiffs have not shown Tule River Aero-Industries acted as defendant’s agent. Minimum contacts by a nonresident defendant’s in-state agent may be imputed to the defendant. (F. Hoffman-La Roche v. Superior Court (2005) 130 Cal.App.4th 782, 796-797; Magnecomp Corporation v. Athene Co., Ltd. (1989) 209 Cal.App.3d 526, 536-537.) However, as the Court of Appeal noted in F. Hoffman-La Roche v. Superior Court, supra, 130 Cal.App.4th at page 797, “[T]he hallmark of agency is the exercise of control over the agent by the principal.” (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 983.) A California court may assert general jurisdiction over a foreign corporation on an agency basis when there is evidence of a pervasive degree of control over the agent by the principal. (F. Hoffman-La Roche v. Superior Court, supra, 130 Cal.App.4th at pp. 796-797; DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1094-1095; Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 540-542.) The only evidence of the relationship between defendant and Tule River Aero-Industries was that it was an independent, nonexclusive dealer of defendant’s products. There was no evidence defendant exercised any control over Tule River Aero-Industries. Plaintiffs have not shown a relationship between defendant and Tule River Aero-Industries that justifies exercising general jurisdiction over defendant. (See Sklar v. Princess Properties International, Ltd. (1987) 194 Cal.App.3d 1202, 1207, disapproved on another point in Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 464 [sales and sales promotion within state by independent nonexclusive sales representative insufficient to assert general jurisdiction]; Vibration Isolation Products, Inc. v. American National Rubber Co. (1972) 23 Cal.App.3d 480, 483-484 [sales promotion within state by nonexclusive sales representative together with minimal merchandising contacts with California insufficient to confer general jurisdiction].)

Plaintiff contends there is a sufficient substantial connection between defendant’s activities in this state and plaintiffs’ causes of action to justify exercising specific jurisdiction in that: defendant communicated with Mr. Thomson in California by telephone, facsimile, and e-mail; the parties negotiated and formed the contract between them while Mr. Thomson was in California and defendant was in Florida; and defendant was physically present in California through its representative, Tule-River Aero-Industries. We find defendant’s activity in this forum too limited to support specific jurisdiction. The asserted California activity was very limited: defendant advertised in an aeronautics magazine mailed to Mr. Thomson in California; defendant negotiated with Mr. Thomson by telephone, facsimile, and e-mail after he contacted it in Florida; and defendant referred plaintiffs to an independent California entity for annual inspections. It is true that plaintiffs’ causes of action are connected with that activity. The relationship between the parties arose because defendant’s advertising reached Mr. Thomson in California, which led to communications between Mr. Thomson in California and defendant in Florida. However, plaintiffs’ causes of action are more substantially connected with and more directly arise out of defendant’s allegedly negligent acts in Florida and only in Florida. Plaintiffs delivered the aircraft to defendant’s Florida facility. There defendant allegedly negligently installed the quick oil drain assembly. Plaintiffs retrieved the aircraft from Florida after the modifications were complete. There was no evidence defendant purposefully and voluntarily directed its activities toward California, created a substantial connection with this forum, or created continuing obligations between it and California residents. (Compare, e.g., Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at pp. 1065-1066 [Nevada hotels advertised extensively in California, maintained a Web site and toll-tree telephone number, regularly sent mailings, and obtained a significant percentage of patrons from California].)

Plaintiffs rely on Hall v. LaRonde (1997) 56 Cal.App.4th 1342, 1345-1348, for the proposition that telephone, facsimile, and e-mail contact between plaintiffs in California and defendant in Florida may suffice to establish the requisite contact for personal jurisdiction purposes. Hall is distinguishable. There the parties, a New York defendant and a California plaintiff, had a continuing relationship. That relationship included the ongoing payment of royalties by the defendant to the plaintiff. There is no evidence of any such relationship in this case. Although there were an unknown number of telephone, facsimile, and e-mail communications between the parties, there is no evidence this was anything other than a one-time transaction between the parties when the charged misconduct occurred solely in Florida.

Finally, it would be unfair or unreasonable for the superior court to exercise jurisdiction over defendant. Here, defendant has had only limited contact with California. Defendant is a Florida corporation with its sole facility in Florida. Plaintiffs agreed that venue would be in a Florida court and that state law would apply. Defendant’s allegedly negligent acts occurred in Florida. Moreover, the witnesses to defendant’s allegedly negligent acts are located in Florida.

B. The Forum Selection Clause

As noted, the parties’ contract provides that that suit is to be filed in Indian River County, Florida. The trial court could reasonably conclude it should enforce the parties’ forum selection clause where the purported negligence occurred in Florida and there is no evidence its courts will not provide just compensation if plaintiffs prevail. (Schlessinger v. Holland America (2004) 120 Cal.App.4th 552, 558; CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.App.4th 1347, 1354.) Therefore, separate and apart from the constitutional issues, the trial court could reasonably conclude to enforce the parties’ forum selection clause. Finally, there is no merit to plaintiffs’ unconsionability contentions.

C. The Discovery Request

Plaintiffs contend the trial court erred in not permitting them to conduct jurisdictional discovery before granting the motion to quash. A plaintiff is entitled to conduct discovery on the jurisdictional issues presented by the motion to quash. (School Dist. Of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131-1132; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1234; Weil & Brown, Civil Proc. Before Trial (The Rutter Group, 2005) ¶ 3:386, p. 3-87 (Rev. #1 2005).) If the plaintiff is unable to complete such discovery before the hearing on the motion, he or she is entitled to a continuance for that purpose. (Ziller Electronics Lab GmbH v. Superior Court, supra, 206 Cal.App.3d at p. 1234; School Dist. of Okaloosa County v. Superior Court, supra, 58 Cal.App.4th at pp. 1131-1132; Weil & Brown, Civil Proc. Before Trial, supra, ¶ 3:386, p. 3-87.) We review the trial court’s decision for an abuse of discretion. (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 911; Beckman v. Thompson (1992) 4 Cal.App.4th 481, 487.) As the Supreme Court has repeatedly held, “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; accord, Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 722; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) We find no abuse of discretion.

In the trial court, plaintiffs requested they be allowed additional discovery on the jurisdiction question. Plaintiffs asserted, in conclusory fashion, that additional discovery would likely lead to evidence defendant had been physically present in California at three separate Aircraft Owners and Pilots Association Expos, in 2000, 2002, and 2004. Further, plaintiffs asserted defendant had marketed its products in California with knowledge they would be used here. Plaintiffs made no attempt to conduct discovery in the month between the filing of and the hearing on defendant’s motion to quash. Plaintiffs did not serve a simple interrogatory, production demand, or deposition notice while the jurisdictional challenge was pending. Nor did plaintiffs explain how the evidence they expected to discover would support jurisdiction. Finally, none of the purported discovery could have shed any material light on the enforceability of the parties’ forum selection clause. Under these circumstances, we are not persuaded that the trial court exceeded the bounds of reason in denying plaintiffs’ discovery request.

IV. DISPOSITION

The dismissal order is affirmed. Defendant, LoPresti Speed Merchants, Inc., is to recover its costs on appeal, jointly and severally, from plaintiffs, Brett D. Thomson and Doll Electric Company, Inc.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P.J.

I concur:

ARMSTRONG, J.

MOSK, J., Concurring

I concur.

The clause referred to as a “forum selection clause” is a venue selection clause, which is quite different from a forum selection clause. (See Alexander v. Superior Court (2003) 114 Cal.App.4th 723, 726-727.) Venue selection clauses—at least within California—have been declared unenforceable. (Id. at pp. 731-732.) There is no enforceable forum selection clause in this case.

The clause invoked by the respondent provides for arbitration in Florida. In addition, the clause provides for Florida law, a factor militating in favor of Florida jurisdiction.

MOSK, J.

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise noted.