Kickn Back Properties, LLC v. Zuoz Company, LLC, 031519 CAAPP4-3, G055610

Docket Nº:G055610
Opinion Judge:BEDSWORTH, ACTING P. J.
Party Name:KICKN BACK PROPERTIES, LLC, Plaintiff and Appellant, v. ZUOZ COMPANY, LLC, et al., Defendants and Respondents.
Attorney:Law Offices of Michael Leight and Michael Leight for Plaintiff and Appellant. Strong & Hanni and Chet W. Neilson for Defendants and Respondents.
Judge Panel:WE CONCUR: MOORE, J., IKOLA, J.
Case Date:March 15, 2019
Court:California Court of Appeals
 
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KICKN BACK PROPERTIES, LLC, Plaintiff and Appellant,

v.

ZUOZ COMPANY, LLC, et al., Defendants and Respondents.

G055610

California Court of Appeals, Fourth District, Third Division

March 15, 2019

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 30-2017-00930089, Geoffrey T. Glass, Judge. Affirmed.

Law Offices of Michael Leight and Michael Leight for Plaintiff and Appellant.

Strong & Hanni and Chet W. Neilson for Defendants and Respondents.

OPINION

BEDSWORTH, ACTING P. J.

INTRODUCTION

Kickn Back Properties, LLC, appeals from an order dismissing its complaint for breach of two promissory notes. The trial court entered a judgment dismissing the complaint because both notes contained forum selection clauses designating Utah as the exclusive forum for enforcement.

We affirm. Kickn Back failed to carry its heavy burden of showing why the forum selection clauses in these ordinary commercial notes were not enforceable. It failed to show any unwaivable statutory rights that would be compromised by conducting this litigation in Utah or any reason that Utah was unsuitable or unavailable as a forum for resolving this dispute.

FACTS

Kickn Back sued respondents Zuoz Company, LLC, John and Sara Tyler (the Tylers) individually, and the Tyler Family Trust for breaching two promissory notes, one dated July 5, 2012, for $70, 000 and the other dated April 1, 2013, for $15, 000. The borrowers were the Tylers, their trust, and Zuoz. The notes were signed by the Tylers individually, as trustees of the trust, and as managers of Zuoz. Both notes were amended twice. The first amendments, dated June 2013, suspended certain payments and extended the maturity date to October 2022 for the first note and to July 2016 for the second note. Only Zuoz signed these amendments. The second amendments, dated January and February 2014, suspended certain payments and extended the maturity date to January 2023 for the first note and to October 2016 for the second note. The second amendments were signed by the Tylers as managers of Zuoz and by Kickn Back.

Both original promissory notes included identical forum selection clauses: “Any action to enforce this Note shall be brought within the State of Utah.” None of the amendments mentioned the clauses. The first amendments each included a provision that the original notes were otherwise unchanged.

The Tylers and Zuoz moved to dismiss the complaint, basing the motion on the forum selection clause in each note. They maintained that any suit to enforce the notes had to be brought in Utah.

The moving papers did not include a declaration by a party or an attorney. Instead, the memorandum of point and authorities included statements about the Tylers and about Zuoz, a Nevada limited liability company. These statements included connections between Zuoz and Utah and the Tylers' part-time residence in Utah.

Kickn Back opposed the motion to dismiss. The declarant for Kickn Back asserted that the notes were prepared after the money had already changed hands, without any negotiation. The declarant also made other statements about...

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