1The topic of the newsletter this week is a brief discussing regarding opposing a motion to dismiss on the grounds of inconvenient

forum in California. The motion is also known as a forum non conveniens action and is made on the grounds that the forum state, namely California, is an inconvenient forum in which to have the case heard. The good news for a party opposing a motion to dismiss on the grounds of inconvenient forum in California is that the moving Defendant(s) have the burden of proof. In a forum non conveniens action, the defendant has the burden of proof. Century Indem. Co. v. Bank of Am., (1997) 58 Cal. App. 4th 408, 411. (Citing text.) And the United States Supreme Court has stated that unless the balance weighs strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed. See Piper Aircraft v. Reyno, (1981) 454 U.S. 235, 255. And the doctrine is typically applied where the cause of action arose outside of the forum state. The doctrine is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. Appalachian Ins. Co. v. Superior Court, (1984) 162 Cal. App. 3d 427, 434. (Internal citations and quotations omitted.) The moving party must also establish that a suitable alternative forum exists. Courts in California have utilized a two prong approach in motions to dismiss on the basis of forum non conveniens: 1) Defendants must establish that a suitable alternative forum exists and 2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751. Code of Civil Procedure section 410.40 states that Any person may maintain an action or proceeding in a court of this state against a foreign corporation or nonresident person where the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of California law has been made in whole or in part by the parties thereto and which (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than one million dollars ($1,000,000), and (b) contains a provision or provisions under which the foreign corporation or nonresident agrees to submit to the jurisdiction of the courts of this state. This section applies to contracts, agreements, and undertakings entered into before, on, or after its effective date; it shall be fully retroactive. Contracts, agreements, and undertakings selecting California law entered into before the effective date of this section shall be valid, enforceable, and effective as if this section had been in effect on the date they were entered into; and actions and proceedings commencing in a court of this state before the effective date of this section may be maintained as if this section were in effect on the date they were commenced. This means that if an agreement signed by both parties, even if both parties are nonresident parties, includes what is known as a mandatory forum selection clause, the Court will most likely

deny the motion unless the moving party can show that applying the clause would be unfair or unreasonable. The fact that the moving party might be inconvenienced or suffer additional expenses is not sufficient. Although not even a mandatory forum selection clause can completely eliminate a court's discretion to make appropriate rulings regarding choice of forum, the modern trend is to enforce mandatory forum selection clauses unless they are unfair or unreasonable. If there is no mandatory forum selection clause, a forum non conveniens motion `requires the weighing of a gamut of factors of public and private convenience. However if there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. Mere inconvenience or additional expense is not the test of unreasonableness of a mandatory forum selection clause. Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294. (Internal citations and quotations omitted.) A party wishing to oppose a motion to dismiss on the grounds of inconvenient forum in California should take the factors discussed in this issue of the newsletter into account. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice.

These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.