Korman v. Princess Cruise Lines, Ltd.

• Decision Date: 14 February 2019
• Docket Number: B290681
• Citation: 32 Cal.App.5th 206,243 Cal.Rptr.3d 668
• Court: California Court of Appeals Court of Appeals
• Parties: Barry KORMAN, Plaintiff and Appellant, v. PRINCESS CRUISE LINES, LTD., Defendant and Respondent.

32 Cal.App.5th 206

243 Cal.Rptr.3d 668

Barry KORMAN, Plaintiff and Appellant,

v.PRINCESS CRUISE LINES, LTD., Defendant and Respondent.

B290681

Court of Appeal, Second District, Division 4, California.

Filed February 14, 2019

Nguyen Lawyers, Christine J. Gonong and Minh T. Nguyen for Plaintiff and Appellant.

Flynn, Delich & Wise, Barbara E. Kennedy and Lisa M. Conner for Defendant and Respondent.

WILLHITE, Acting P. J.Plaintiff and appellant Barry Korman appeals from an order of the trial court dismissing his complaint against respondent Princess Cruise Lines, Ltd. for forum non conveniens. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 29, 2017, appellant sued respondent based on injuries appellant suffered while he was a passenger on a cruise ship operated by respondent. Appellant alleged that he was injured during a February 2017 cruise on the "Crown Princess," a cruise ship traveling from Buenos Aires, Argentina to Santiago, Chile. He alleged that respondent was aware of an impending storm, but the crew of the ship negligently failed to warn its passengers of the storm and failed to close the gym and spa on the ship. On February 11, 2017, the cruise ship "experienced high seas and tipped" while appellant was using the spa, causing him to fall and break his hip, and resulting in permanent injuries. The crew closed the gym and spa after appellant fell.

Appellant filed a complaint in Los Angeles Superior Court alleging negligence, res ipsa loquitur, and breach of contract. Respondent’s counsel informed appellant’s counsel that the complaint had been filed in the wrong forum, citing the forum selection clause in the Passage Contract governing the cruise and forwarding a copy of the contract to appellant’s counsel.¹

The forum selection clause contained in the passage contract stated in full: "(B) Forum and Jurisdiction for Legal Action: [¶] (i) Claims for Injury, Illness or Death: All claims or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever, including without limitation those arising out of or relating to this Passage Contract or Your Cruise, shall be litigated before the United States District Courts for the Central District of California in Los Angeles, or as to those lawsuits over which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Los Angeles County, California, U.S.A., to the exclusion of the courts of any other country, state, city, municipality, county or locale. You consent to jurisdiction and waive any objection that may be available to any such action being brought in such courts." The passage contract also required any claim for personal injury to be filed within one year of the date of the injury.

On October 27, 2017, respondent specially appeared in the superior court to file a motion to stay or dismiss the action based on forum non conveniens under Code of Civil Procedure sections 410.30 and 418.10.² Appellant opposed the motion, arguing that section 410.30 did not apply because the case was being litigated in a forum within California.³ He further argued that respondent had not shown that it would be inconvenient for any witnesses or parties to adjudicate the case in California state court. (See § 418.10, subd. (a)(2).)⁴ Appellant also argued that respondent’s failure to remove the action to federal court within 30 days, as required by 28 United States Code section 1446, subdivision (b)(1) (28 U.S.C. §), deprived the federal court of subject matter jurisdiction over the case. Finally, appellant contended that, although a passage contract is governed by federal maritime law, state courts are not precluded from adjudicating such claims, and that the forum selection clause was unenforceable.

On February 1, 2018, the trial court conditionally granted respondent’s motion and stayed the action. The court found that the forum selection clause was mandatory and required the parties to select the federal court "if that forum has subject matter jurisdiction." Because "[t]here appears to be no dispute here that the federal court has subject matter jurisdiction over this lawsuit, at least at its outset," the court concluded that the action should have been filed in federal court in Los Angeles. The court further concluded that enforcement of the forum selection clause was not unreasonable. The court acknowledged appellant’s "argument that the clause should not be enforced where the defendant had a chance to remove the case and did not do so," stating that this was "a close decision." Nonetheless, the court concluded that enforcement was not unreasonable because appellant still had the opportunity to litigate in federal court.⁵ The court stayed the action until a March 15, 2018 hearing.

On February 26, 2018, the parties filed a joint status report, indicating that appellant agreed to refile in federal court and asking the court to continue the hearing date. The court continued the hearing to April 19, 2018.

At the April 19 hearing, appellant’s counsel stated that appellant had decided not to file suit in federal court. The court granted respondent’s motion to dismiss for forum non conveniens, lifted the stay and dismissed the case without prejudice.

DISCUSSION

I. Absence of Reporter’s Transcript

As an initial matter, we consider whether the absence of a reporter’s transcript warrants affirmance based on an inadequate record pursuant to Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 129 Cal.Rptr.3d 421 ( Foust ). "[D]ismissal of an appeal may be warranted in the absence of a reporter’s transcript when such a transcript is necessary for meaningful review. [Citation.]" ( Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 933, 230 Cal.Rptr.3d 71 ( Bel Air ).) However, " California Rules of Court, rule 8.120(b) requires a reporter’s transcript on appeal only if ‘an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court ....’ California Rules of Court, rule 8.130(a)(4) provides that an appellant may ‘elect[ ] to proceed without a reporter’s transcript.’ " ( Chodos v. Cole (2012) 210 Cal.App.4th 692, 699, 148 Cal.Rptr.3d 451 ( Chodos ).)

In Foust, supra , 198 Cal.App.4th 181, 129 Cal.Rptr.3d 421, the appellant appealed from a judgment entered following a three-day court trial. On appeal, he failed to provide "a reporter’s transcript from his court trial or any other adequate statement of the evidence." ( Id. at p. 186, 129 Cal.Rptr.3d 421.) Instead, he provided a partial clerk’s transcript, which contained his complaint, his amended complaint, the statement of decision, the judgment, and two of the exhibits introduced at trial. Because the appellant’s challenge to the trial court’s findings relied on his trial testimony, the court found the inadequate record to be "fatal" to his appeal. ( Ibid. )

By contrast, in Bel Air , the court held that the appellants did not forfeit their appeal by failing to provide a reporter’s transcript of the trial court’s hearing on their motion to strike. ( Bel Air , supra , 20 Cal.App.5th at p. 933, 230 Cal.Rptr.3d 71.) The court reasoned that respondent "does not claim that the hearing included any live testimony or the introduction of any other evidence. Nor does it identify any particular matter addressed at the hearing that this court must consider to decide the appeal. [Citation.] While a record of the hearing would have been helpful to understand the trial court’s reasoning, it is not necessary here where our review is de novo and the appellate record includes the trial court’s written orders and all the evidentiary materials germane to Appellants’ motion. [Citation.]" ( Ibid. )

Similarly, in Chodos , the court held that a reporter’s transcript was not required because "[n]one of the parties relies upon the oral argument before the trial court, and we decide a purely legal issue based on the filings before the trial court—as did the trial court." ( Chodos , supra , 210 Cal.App.4th at p. 699, 148 Cal.Rptr.3d 451.)

Unlike in Foust , appellant’s challenge to the trial court’s decision does not rely on any evidence presented or the trial court’s findings made at the hearing. Nor does respondent rely on any of the trial court’s findings or statements made at the hearing. (See Chodos , supra , 210 Cal.App.4th at p. 699, 148 Cal.Rptr.3d 451.) Instead, similar to Bel Air , respondent "does not claim that the hearing included any live testimony or the introduction of any other evidence," and does not "identify any particular matter addressed at the hearing that this court must consider to decide the appeal." ( Bel Air , supra , 20 Cal.App.5th at p. 933, 230 Cal.Rptr.3d 71.) As Chodos explained, a reporter’s transcript is required on appeal "only if ‘an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court ....’ " ( Chodos , supra , 210 Cal.App.4th at p. 699, 148 Cal.Rptr.3d 451 ; Cal. Rules of Court, rule 8.120(b).) The lack of a reporter’s transcript accordingly does not require affirmance based on an inadequate record.

II. Forum Non Conveniens

A. Applicability of Sections 410.30 and 418.10

"When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." ( § 410.30, subd. (a).) " Section 410.30 is a codification of the doctrine of forum non conveniens [citation], but the principles governing enforcement of a forum selection clause are not the same as those applicable to motions based on forum non conveniens. [¶] In California, ‘forum selection clauses are valid and may be given effect, in the court’s discretion and in the absence of a showing that enforcement of such a clause would be unreasonable.’ [Citation.] [¶] The burden of proof is on the plaintiff, and...