R & J Sheet Metal v. Centria CA2/1 ( 2022 )

Filed 12/8/22 R & J Sheet Metal v. Centria CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
R & J SHEET METAL, INC., B304148
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC596858)
v.
CENTRIA, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Monica Bachner, Judge. Affirmed.
Law Offices of Alex P. Aghajanian, Alex P. Aghajanian,
Gary P. Simonian; Benedon & Serlin, Gerald M. Serlin and
Melinda W. Ebelhar for Plaintiff and Appellant.
Sidley Austin, Jack S. Yeh, David R. Carpenter, Anna
Tutundjian and Nicole M. Baade for Defendant and Respondent.
_________________________
Plaintiff and appellant R & J Sheet Metal, Inc. (R&J)
appeals an order granting defendant and respondent Centria,
Inc. doing business as Centria Architectural Systems’ (Centria’s)
renewed motion to dismiss based on a Pennsylvania forum
selection clause in a dealer agreement between Centria, a
manufacturer, and one of Centria’s authorized dealers, defendant
Joseph Karcig, Inc., doing business as Architectural Systems, Inc.
(ASI).1 Briefly summarized, R&J’s cause of action against
Centria is predicated on allegations that Centria violated a
purchase contract between Centria and ASI by failing to provide
a 20-year warranty for certain goods that ASI in turn supplied to
R&J, and that R&J is a third party beneficiary of that purchase
contract.
On appeal, R&J contends the trial court erred in granting
Centria’s renewed motion because the motion was not supported
by new or different facts or circumstances as required by Code of
Civil Procedure section 1008, subdivision (b);2 and the court
lacked the authority, on its own motion, to reconsider its prior
ruling denying Centria’s initial motion to stay or dismiss.
Regarding the trial court’s power to reconsider its previous ruling
on its own motion, R&J maintains the court lacked that authority
because it reconsidered the applicability of the forum selection
1 ASI is not a party to this appeal.
2 Code of Civil Procedure, section 1008 subdivision (b)
provides in pertinent part that “[a] party who originally made an
application for an order which was refused . . . may make a
subsequent application for the same order upon new or different
facts, circumstances, or law . . . .” (Code Civ. Proc., § 1008,
subd. (b).) Undesignated statutory citations are to the Code of
Civil Procedure.
2
clause in response to Centria’s renewed motion and the court
relied on evidence accompanying the renewed motion that
Centria had not, but purportedly could have, submitted with the
initial motion.
We conclude the trial court did not err in reconsidering its
prior ruling. In Williamson v. Mazda Motor of America, Inc.
(2012) 212 Cal.App.4th 449 (Williamson), Division Three of the
Fourth District held that one of the statutes governing
inconvenient forum motions, section 410.30, confers upon a trial
court the discretion to reconsider its prior order denying a motion
to stay or dismiss for inconvenient forum in response to a
renewed motion that is based on previously unsubmitted
evidence, regardless of whether the renewed motion satisfies
section 1008. Because R&J has not advanced a persuasive
reason to disagree with Williamson, we adhere to that decision in
accordance with the principles of stare decisis. Furthermore, we
reject R&J’s assertion that Williamson should not apply to the
instant case, given the record shows that R&J’s failure clearly to
identify the contract upon which its third party beneficiary
theory is based initially caused the trial court mistakenly to
believe the dealer agreement’s forum selection clause is
inapplicable.
Turning to the merits of the dismissal order, we conclude
the forms that R&J claims constitute the relevant contract
between ASI and Centria are part of the same transaction as the
dealer agreement that contains the Pennsylvania forum selection
clause. Accordingly, the forum selection clause from the dealer
agreement governs ASI’s right, and, by extension, R&J’s right
qua asserted third party beneficiary, to bring suit against
Centria. We thus affirm.
3
PROCEDURAL BACKGROUND3
Because the genesis of Centria’s renewed motion is
important to our conclusion that section 410.30 authorized the
trial court to reconsider its prior ruling, our discussion of the
procedural history of the motion is necessarily detailed.
1. First amended complaint
On May 23, 2019, R&J filed its first amended complaint,
averring claims arising out of a project at the Port of Long Beach,
for which R&J claims to have purchased material and provided
labor for the installation of sheet metal components.4 R&J
alleged a single cause of action against Centria—denominated as
“breach of contract [¶] (third party beneficiary).” (Boldface &
capitalization omitted.)
On or about April 23, 2014, R&J made a written purchase
order to ASI for “specific products and accompanying paint
coatings” and a “20-year coastal finish warranty” that was
3 We derive our Procedural Background in part from
undisputed aspects of the trial court’s order of dismissal and
admissions made by the parties in their briefing. (See Baxter v.
State Teachers’ Retirement System (2017) 18 Cal.App.5th 340,
349, fn. 2 [utilizing the summary of facts provided in the trial
court’s ruling]; Standards of Review, post [noting that the trial
court’s orders and judgments are presumed correct]; Artal v.
Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal) [“ ‘[B]riefs
and argument . . . are reliable indications of a party’s position on
the facts as well as the law, and a reviewing court may make use
of statements therein as admissions against the party.’ ”].)
4 This section summarizes the pertinent allegations from
the first amended complaint. We express no opinion as to the
veracity of these averments.
4
required for the project. Centria was a manufacturer of certain
sheet metal products, ASI was Centria’s exclusive authorized
agent “for the territory of Long Beach, California,” and “[i]n
2014,” ASI and Centria “entered into a written contract in
connection with [R&J’s] aforementioned purchase order.” In this
contract, Centria agreed to “1) manufacture all of the goods set
forth in [R&J’s] purchase order, 2) coat certain of those goods
with the requested finish, 3) provide their standard
manufacturer’s warranty for the finish for the period of 20 years,
as advertised, and deliver the finished goods and warranty to the
project.” In exchange, ASI agreed to pay Centria for the goods
that R&J had ordered.
Centria was “aware of the project’s specifications as it
related to the goods and warranty” and “understood” that R&J
“had ordered the products and standard manufacturer’s warranty
for the project through [Centria’s] authorized dealer, [ASI], as set
forth in the plans and specifications for the project.” Centria
breached its contract with ASI by failing to provide the standard
20-year warranty for the goods delivered.
2. Centria’s initial motion to stay or dismiss
We first summarize the parties’ arguments made in
connection with Centria’s initial motion to stay or dismiss, and
thereafter discuss the trial court’s consideration of those
arguments and its ruling denying that motion.
A. The parties’ arguments
On July 17, 2019, Centria filed a motion to stay or dismiss
the action pursuant to sections 410.30 and 418.10. Centria
argued that “[t]he operative dealer agreement that governs all
business dealings between Centria and its authorized dealer,
5
ASI” (2005 dealer agreement), “to which [R&J] . . . alleges to be a
third party beneficiary,” contains the following forum selection
clause: “Any action brought under, as a result of or relating to
this Agreement shall be instituted and litigated in the courts of
the Commonwealth of Pennsylvania located in Allegheny County,
Pennsylvania. Each party irrevocably waives any objection on
the grounds of venue, forum non-conveniens or any similar
grounds, . . . and consents to the jurisdiction of said courts.”
Centria argued that the 2005 dealer agreement applied to
“all disputes arising from the business dealings between Centria
and ASI, including the transactions that underlie this dispute.”
Centria contended that even though R&J did not sign the 2005
dealer agreement, R&J was bound by the agreement because
R&J’s “allegations against Centria are entirely based on its
position that the Agreement was entered into for [R&J’s] benefit.”
Accompanying the motion was a declaration from Centria’s
attorney who purported to authenticate a document submitted
with the motion as a “true and correct copy” of this agreement
between Centria and ASI.
R&J filed evidentiary objections to this declaration,
including the paragraph in which Centria’s attorney
authenticated the 2005 dealer agreement, on the ground, inter
alia, that his testimony in that regard lacked foundation. In its
opposing brief, R&J stated: “CENTRIA did not demonstrate that
the 2005 dealer contract is the operative agreement or that R&J
was an intended beneficiary of it. To the contrary, R&J
contended that, in addition to being a consumer of CENTRIA’s
product that was advertised to come with a 20-year finish
warranty, it was also the beneficiary of a 2014 agreement between
CENTRIA and ASI.” (Italics added.)
6
R&J served its opposition brief and objections by mail,
rather than by personal or overnight service. In the dismissal
order discussed in greater detail in Procedural Background,
part 3.B, post, the trial court found R&J’s service of these
documents was “improper” because service was not effected “in a
manner reasonably calculated to ensure delivery by the next
business day,” but instead “gave [Centria] fewer than three days
to address the arguments raised and prepare its reply brief.”
R&J does not dispute this finding on appeal.
In its reply, Centria asserted that R&J’s “claim is premised
on a complete sham.” More specifically, Centria argued that to
avoid the forum selection clause in the 2005 dealer agreement,
R&J invoked a “phantom ‘2014 Agreement’ between Centria and
ASI” that it “ha[d] not produced despite ample opportunity to do
so with the First Amended Complaint and in its Opposition.”5
Centria reiterated its position that the 2005 dealer agreement is
“the only operative agreement that governed all business
dealings between Centria and its authorized dealer, ASI[,] at the
time of the alleged transactions, to which [R&J] purports to be a
third-party beneficiary . . . .”
5 On appeal, neither party sets forth the status of discovery
at the time R&J named Centria as a defendant in this case. We
note that in its reply to R&J’s opposition to the renewed motion
to dismiss or stay, Centria asserted: “Centria’s counsel
understands that [R&J] issued a subpoena to Centria last year
and obtained Centria’s documents relating to the April 2014
[purchase] order. [R&J] also had an opportunity to obtain such
documents directly from ASI.”
7
B. The trial court’s consideration of Centria’s original
motion to dismiss or stay and the court’s denial of
that motion
The trial court issued a tentative ruling indicating it
intended to sustain R&J’s evidentiary objections to trial counsel’s
testimony purporting to authenticate the 2005 dealer agreement,
and to deny Centria’s motion. The tentative ruling also stated
that Centria “did not submit competent evidence establishing
that the Dealer Agreement is the contract that [R&J] seeks to
enforce as a third-party beneficiary in this action,” and that
Centria had not submitted competent evidence that the 2005
dealer agreement was “the only operative agreement between
[Centria] and ASI for the claims at issue” in the first amended
complaint. The ruling further stated that the allegations of the
first amended complaint “do not support [Centria’s] contention
that [R&J] is suing as a third-party beneficiary of the Dealer
Agreement since [R&J] alleges that [Centria] and ASI entered an
agreement for the benefit of [R&J] in 2014, not 2005.” In sum,
the court’s tentative decision rested on two premises:
(1) Centria’s failure to authenticate what Centria believed was
the operative agreement underlying R&J’s third party beneficiary
claim; and (2) R&J had pleaded that Centria and ASI entered
into a 2014 agreement for the benefit of R&J.
At the hearing on Centria’s motion, counsel for Centria
asked the court to continue the hearing for several weeks to allow
Centria, inter alia, to “submit a declaration by . . . an officer of
the company[ ] authenticating the 2005 contract . . . .” Centria’s
attorney further argued that the opposition had not been
properly served and that his team “had basically a day and a
half” to prepare the reply submission. The court denied the
8
request to continue the hearing. When counsel for Centria stated
that he understood the ruling on the motion to be without
prejudice, the trial court replied: “My ruling is my ruling, and
the California Code of Civil Procedure tells you what you can do.
It is my ruling, and it is the ruling of the court. If there’s a way
that you want to present it to me, I’m not going to tell you how to
practice law, but this is my ruling. [¶] . . . [¶] It’s not without
prejudice. It’s my ruling.”
On November 14, 2019, the trial court adopted its tentative
decision as its final ruling, thereby denying Centria’s motion to
stay or dismiss.
3. Centria’s renewed motion to stay or dismiss
Again, we first summarize the parties’ arguments and then
discuss the court’s ruling on the renewed motion.
A. The parties’ arguments
On November 21, 2019, Centria filed a renewed motion to
stay or dismiss pursuant to sections 410.30, 418.10, and 1008.
Centria argued the trial court had denied Centria’s original
motion because R&J’s opposition “ambiguously” and
“suspiciously” referred to a “ ‘2014 Agreement’ ” between Centria
and ASI, an agreement R&J “still ha[d] not yet proffered,
produced or even articulated.” Centria asserted that it executed
a dealer agreement with ASI in August 2014 that contains the
same forum selection clause as the one in the 2005 dealer
agreement (2014 dealer agreement), but further asserted the
2014 dealer agreement postdates ASI’s purchases from Centria
that are the subject of this appeal.
In connection with its renewed motion, Centria submitted
the declaration of Centria’s western distribution manager,
9
Ronald Laramie, who authenticated the 2005 and 2014 dealer
agreements, which agreements Centria submitted with the
motion.6 Laramie attested that Centria uses a standard dealer
agreement that “is intended to be a master agreement that
governs all of the material terms and conditions of any
transactions and business dealings between Centria and each of
its authorized dealers,” including ASI. Laramie also declared
that the 2005 dealer agreement was the only dealer agreement
between ASI and Centria that was operative in the first quarter
of 2014, and that it was Laramie’s “understanding that ASI
purchased” from Centria in the first quarter of 2014 “certain of
th[e] materials” that R&J had ordered from ASI.
In its opposition, R&J argued that Centria’s renewed
motion did not comply with section 1008 because it was not based
on new or different facts that were not available at the time of
the original filing, but instead was being used to correct defects
in the original motion. R&J further asserted that its cause of
action against Centria was not based on a dealer agreement, but
instead “was rooted from R&J’s purchase order . . . .” R&J
contended that “CENTRIA’s understanding was that R&J
submitted a purchase order to ASI for CENTRIA products in
connection with a public works projects [sic] and that, in turn,
ASI purchased those products from CENTRIA to deliver to R&J.”
“Thus,” according to R&J, “ASI and CENTRIA did, in fact, enter
into an agreement in 2014 for the benefit of R&J in connection
with R&J’s purchase order.”
6We describe the relevant provisions from the 2005 dealer
agreement in Discussion, part C, post.
10
In reply, Centria submitted the declaration of Centria’s
regional distribution manager, Robert W. Rutherford.
Rutherford attested that as a general matter, when an
authorized dealer submits a purchase order to Centria, Centria
issues an order acknowledgement form that confirms details such
as materials, price, and shipping instructions. Per Rutherford,
Centria’s acknowledgement forms supersede “anything stated by
the dealer in its purchase order or otherwise.” Rutherford
further declared that “ASI’s purchase order and Centria’s
acknowledgment also are always subject to the Dealer Agreement
then in effect between ASI and Centria.”
Rutherford authenticated the following documents that
were attached to his declaration: Centria’s February 28, 2014
quotation to ASI for the materials contemplated by R&J for the
project; ASI’s March 19, 2014 preliminary purchase order to
Centria for the materials that R&J later ordered from ASI in
April 2014; and two April 29, 2014 order acknowledgment forms
from Centria to ASI relating to R&J’s order. The “Terms and
Conditions of Sale” recited in the purchase order
acknowledgment forms provide that “[t]he contract represented
by this acknowledgement shall be governed by the laws of
Pennsylvania.” (Underscoring & some capitalization omitted.)
The two purchase order acknowledgment forms do not contain a
forum selection clause.
In its reply brief, Centria asserted that R&J’s “intentional
and continuing” “refus[al] to produce or identify with specificity”
the contract on which it bases its third party beneficiary claim
had “led Centria and this Court down a rabbit hole trying to
guess the form of the foundational contract at issue . . . .” Centria
argued that R&J’s opposition to the renewed motion was “the
11
first time” that R&J indicated that “the basis for its claim is
simply ASI’s purchase of certain materials.”
B. The trial court granted Centria’s renewed motion
On December 12, 2019, the trial court heard and granted
Centria’s renewed motion, and entered an order dismissing the
action as to Centria pursuant to section 410.30.
In its detailed written ruling on the renewed motion, the
court explained it had denied Centria’s original motion because
Centria failed to establish the existence of a forum selection
clause, given that Centria had not “submit[ted] competent
evidence establishing that the 2005 Dealer Agreement is the
contract [R&J] seeks to enforce as a third-party beneficiary in the
first amended complaint . . . .” The court also found that, for the
purposes of a renewed motion under section 1008, subdivision (b),
Centria had demonstrated “new or different facts to warrant a
subsequent application for the same order.” In particular, the
court observed that: (1) Centria “submitted a declaration
indicating that this renewed motion [was] necessitated by [R&J’s]
insistence that a 2014 Agreement between [Centria] and ASI
supersedes the express forum selection clause of the 2005 Dealer
Agreement and that [R&J’s] opposition to [Centria’s] initial
motion argued that this 2014 Agreement controls without
alleging the terms of the agreement or whether it too contained a
forum selection clause”; (2) Centria “submitted evidence
suggesting the existence of a 2014 Dealer Agreement between
[Centria] and ASI, which does contain the same forum selection
clause as the 2005 Dealer Agreement”; and (3) Centria
“submitted evidence that [R&J’s] improperly served and untimely
opposition materially prejudiced [Centria’s] ability to prepare a
reply to the original motion and present the new facts asserted in
12
this renewed motion previously.” The court further “note[d] that
it ha[d] the inherent discretion to consider a renewed motion,
without requiring new facts or circumstances . . . .”
On the merits, the trial court concluded that Centria had
established the existence of a forum selection clause that applies
to R&J. Specifically, the court found that Centria had “submitted
evidence establishing that the 2005 Dealer Agreement is the
contract that [R&J] seeks to enforce as a third-party beneficiary
in this action . . . .” The court further found that the forum
selection clause in the 2005 dealer agreement “applies to all
disputes arising from the business transactions between
[Centria] and ASI.” Additionally, the court concluded that R&J
“did not meet its burden of demonstrating that either the forum
selection clause is unfair or unreasonable or that Pennsylvania is
an unsuitable alternative forum.”
R&J appealed the order of dismissal on February 7, 2020.
STANDARDS OF REVIEW
We review de novo whether a trial court is authorized to, on
its own motion, reconsider a prior ruling. (See Williamson,
supra, 212 Cal.App.4th at pp. 453–455 [reviewing de novo
whether section 410.30 authorized the trial court to reconsider
an inconvenient forum ruling on its own motion]; see also
People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003)
111 Cal.App.4th 102, 120 [holding that matters concerning “the
trial court’s statutory authority present[ ] question[s] of law,
which we review de novo”].)
We review de novo the trial court’s legal conclusion that the
forum selection clause at issue applies to R&J’s action against
Centria, given that our resolution of this issue does not require
“any assessment of conflicting extrinsic evidence.” (See Intershop
13
Communications AG v. Superior Court (2002) 104 Cal.App.4th
191, 196, 199 (Intershop Communications AG); Discussion,
part C, post [deciding this issue without resolving conflicting
evidence].)
Furthermore, “ ‘[i]t is well settled that all presumptions
and intendments are in favor of supporting the judgment or order
appealed from, and that the appellant has the burden of showing
reversible error, and in the absence of such showing, the
judgment or order appealed from will be affirmed.’ [Citations.]”
(Estate of Sapp (2019) 36 Cal.App.5th 86, 104.) Thus, “ ‘ “it is the
appellant’s responsibility to affirmatively demonstrate error[,]” ’ ”
and “ ‘ “review is limited to issues which have been adequately
raised and briefed.” ’ [Citation.]” (See Los Angeles Unified
School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th
480, 492.) “ ‘[T]o demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.’ [Citation.]” (Hernandez
v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277
(Hernandez).) The appellant bears this burden of rebutting the
presumption of correctness accorded to the trial court’s decision,
regardless of the applicable standard of review. (See Los Angeles
Unified School Dist., at p. 492 [noting that these principles apply
to “ ‘ “an appeal from any judgment” ’ ”]; see also Orange County
Water Dist. v. Sabic Innovative Plastics US, LLC (2017)
14 Cal.App.5th 343, 368, 399 [indicating that an appellant must
affirmatively show the trial court erred even if the de novo
standard of review applies].)
Additionally, “ ‘[i]f the decision of a lower court is correct on
any theory of law applicable to the case, the judgment or order
will be affirmed regardless of the correctness of the grounds upon
14
which the lower court reached its conclusion.’ [Citation.]”
(Estate of Sapp, supra, 36 Cal.App.5th at p. 104.)
DISCUSSION
R&J contends the trial court lacked authority to reconsider
its ruling denying Centria’s initial forum non conveniens motion.
R&J further argues that, even if the court had the power to
revisit whether R&J’s action against Centria should be heard in
California, the “court erred in finding R&J’s third-party
beneficiary claim was subject to . . . the 2005 . . . dealership
agreement[ ] and thus was bound by the forum-selection clause”
included therein. We reject these arguments for the reasons set
forth in Discussion, parts B–C, post.
Furthermore, we note R&J does not contest the trial court’s
rulings that (1) the provision at issue from the 2005 dealer
agreement is a mandatory forum selection clause, and (2) R&J
“did not meet its burden of demonstrating that either the forum
selection clause is unfair or unreasonable or that Pennsylvania is
an unsuitable alternative forum.”7 Furthermore, R&J does not
7 We explain in Discussion, part B.1, post, that a
mandatory forum selection clause expressly mandates litigation
exclusively in a particular forum, and that a court will usually
enforce a mandatory forum selection clause unless the plaintiff
can show that application of the clause is unfair or unreasonable.
Further, in its reply brief, R&J asserts for the first time
that “[t]he grant of Centria’s motion to dismiss effectively leaves
R&J without a forum in which to pursue its claims against
Centria based on the statute of limitations in Pennsylvania, the
contractual forum state.” To the extent R&J is impliedly
challenging the trial court’s ruling that R&J did not show the
15
argue that upon deciding to enforce the forum selection clause,
the trial court should have stayed—rather than dismissed—the
action. Accordingly, R&J leaves undisturbed the trial court’s
rulings that: (1) the 2005 dealer agreement contains a
mandatory forum selection clause; (2) R&J “did not meet its
burden of demonstrating that either the forum selection clause is
unfair or unreasonable or that Pennsylvania is an unsuitable
alternative forum”; and (3) dismissal, rather than a stay of the
proceedings, was the appropriate remedy for R&J’s failure to
bring suit in the proper forum. (See Yu v. University of La Verne
(2011) 196 Cal.App.4th 779, 787 (Yu) [“ ‘ “A judgment or order of
the lower court is presumed correct.” ’ ”]; Estate of Sapp, supra,
36 Cal.App.5th at p. 104 [holding that “ ‘the appellant has the
burden of showing reversible error’ ”].)
Before proceeding to the merits of this appeal, we address
two requests R&J makes in its reply brief: (1) that we strike
certain portions of Centria’s respondent’s brief, and (2) that we
permit R&J to submit supplemental briefing.
A. We Reject R&J’s Procedurally Improper Requests to
(1) Strike Portions of Centria’s Respondent’s Brief
and (2) Submit Supplemental Briefing
R&J asks us to strike portions of the respondent’s brief
because Centria supposedly refers to matters outside the
forum selection clause is unfair or unreasonable or that
Pennsylvania is an unsuitable forum, R&J fails properly to raise
any such claim of error. (See Habitat & Watershed Caretakers v.
City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6
[“Arguments presented for the first time in an appellant’s reply
brief are considered waived.”].)
16
appellate record and allegedly raises issues that (a) were not
decided by the trial court, and (b) are outside the scope of this
appeal. Further, R&J states that, “[i]n the event the Court is
considering affirming on th[e] basis” that Centria has shown that
the trial court’s error was harmless because R&J’s underlying
breach of contract claim lacks merit, “R&J requests the
opportunity, pursuant to Government Code section 68081, to fully
brief the question of whether there is an issue of fact regarding
Centria’s contractual obligations.”
We deny these requests because R&J should have filed a
motion or application seeking such relief. (See SCC Acquisitions,
Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 861, 863
[rejecting a respondent’s “requests to dismiss and to strike
portions of appellants’ opening brief because the [respondent]
did not file separate motions seeking such relief”]; see also
Cal. Rules of Court, rule 8.54 [governing motions]; id., rule 8.50
[governing applications].) A reply brief is not the proper occasion
to make these requests, especially considering that R&J deprived
Centria of the opportunity to respond to R&J’s contentions in
writing. (See id., rule 8.200(a)(4) [“[Aside from appellant’s
opening brief, respondent’s brief, and appellant’s reply brief, n]o
other brief may be filed except with the permission of the
presiding justice.”].) In any event, we observe that R&J’s
procedurally defective entreaty for leave to brief the harmless
error issue is moot because R&J failed to establish the trial court
erred in dismissing the action pursuant to the 2005 dealer
agreement’s forum selection clause. (See Discussion, parts B–C,
post.)
17
B. Section 410.30 Authorized the Trial Court to Dismiss
Centria from the Action Regardless of Whether
Centria’s Renewed Motion Satisfied the
Requirements of Section 1008
R&J argues the trial court lacked authority to reconsider
its prior order denying Centria’s initial forum non conveniens
motion because: (1) Centria’s renewed motion did not comply
with the requirements of section 1008; (2) “the court did not act
sua sponte,” given that “it is obvious the court’s impetus in
reconsidering its previous order was the motion filed by Centria”;
and (3) “the trial court relied on the additional evidence before it
on the renewed motion to dismiss which was not before it on the
original motion.”
As we explain below, section 410.30 confers upon a trial
court the discretion to reconsider its prior order denying a motion
to stay or dismiss for inconvenient forum in response to a
renewed motion that is based on previously unsubmitted
evidence, regardless of whether the renewed motion satisfies
section 1008. The trial court’s decision to reconsider its ruling
denying Centria’s original motion is supported by Williamson,
which held that “section 410.30, subdivision (a) grants a trial
court independent authority to determine whether California is a
convenient forum” based on evidence not previously presented to
the court, “even if a party’s forum non conveniens motion does not
otherwise satisfy the requirements of section 1008 for
reconsideration of a prior order or renewal of an earlier motion.”
(See Williamson, supra, 212 Cal.App.4th at pp. 452–454.)
R&J insists we should not follow Williamson, or, in the
alternative, we should hold that Williamson and a decision upon
which Williamson relies, to wit, Britton v. Dallas Airmotive, Inc.
18
(2007) 153 Cal.App.4th 127, apply only to “traditional” forum
non conveniens motions that do not seek enforcement of
mandatory forum selection clauses. We reject R&J’s arguments,
along with the arguments advanced by the dissent in support of
R&J’s position, and hold that section 410.30 authorized the trial
court to reconsider its denial of Centria’s first forum non
conveniens motion.
1. Motions to enforce forum selection clauses are treated
as special forum non conveniens motions governed by
section 410.30
“In California, the procedure for enforcing a forum selection
clause is a motion to stay or dismiss for forum non conveniens
pursuant to Code of Civil Procedure sections 410.30 and 418.10
[citation], but a motion based on a forum selection clause is a
special type of forum non conveniens motion. The factors that
apply generally to a forum non conveniens motion do not control
in a case involving a mandatory forum selection clause.
[Citations.] [¶] If there is no mandatory forum selection clause,”
that is, a provision that “expressly mandate[s] litigation
exclusively in a particular forum,” “a forum non conveniens
motion ‘requires the weighing of a gamut of factors of public and
private convenience . . . .’ [Citation.] 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.” (See Berg v.
MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349,
358–359.)
“Under a traditional forum non conveniens analysis,” that
is, one that does not involve a mandatory forum selection clause,
19
“[t]he defendant, as the moving party, has the burden of proof.”
(See Intershop Communications AG, supra, 104 Cal.App.4th at
pp. 196, 198.) “In contrast, in cases with a [mandatory]
contractual forum selection clause, the burden of proof is on the
plaintiff, the party resisting the motion,” to “show[ ] that
enforcement of the clause would be unreasonable under the
circumstances of the case.”8 (See Intershop Communications AG,
at pp. 196, 198.)
8 R&J points out that the Court of Appeal in Trident Labs,
Inc. v. Merrill Lynch Commercial Finance Corp. (2011)
200 Cal.App.4th 147, stated that a motion seeking enforcement of
a forum selection clause is “ ‘not a forum non conveniens
motion.’ ” (Quoting Trident Labs, Inc., at p. 156.) When this
quotation is read in context, however, it is apparent the Trident
Labs, Inc. court was merely pointing out that a motion to stay or
dismiss based on a mandatory forum selection clause is governed
by different principles than a traditional forum non conveniens
motion. (See Trident Labs, Inc., at p. 156 [citing Intershop
Communications AG, supra, 104 Cal.App.4th at pp. 196, 198 for
this proposition].) In fact, Trident Labs, Inc. tacitly
acknowledged that section 410.30 governed the defendant’s
motion to enforce the mandatory forum selection clause in that
case, and observed that this statute “is a codification of the
doctrine of forum non conveniens . . . .” (See Trident Labs, Inc.,
at pp. 150, 153–155.)
20
2. Williamson held that section 410.30 empowers a trial
court, on its own motion, to determine whether
California is a convenient forum in response to a
party’s renewed forum non conveniens motion that
relies on evidence not previously submitted to the
court, regardless of whether the renewed motion
satisfies the requirements of section 1008
In Williamson, the plaintiffs filed a products liability action
that arose out of a vehicle collision in Utah. (See Williamson,
supra, 212 Cal.App.4th at pp. 451–452.) At the outset of the
action, the defendants, distributors and manufacturers of the
minivan the plaintiffs were riding in at the time of the accident,
moved to stay or dismiss on the ground that Utah was a more
convenient forum in which to litigate the action than California.
(See id. at pp. 452, 454.) The trial court denied the motion,
reasoning that “the minivan was now located in California,
counsel for all parties were in this state, and since ‘the real crux
of this case’ would be a ‘battle of the experts’ over the vehicle’s
design and manufacture, California was a convenient forum for
the parties’ experts.” (Id. at p. 452.) The action was later
assigned to another trial judge. (Ibid.)
When discovery neared completion, the defendants moved
for reconsideration of the forum non conveniens motion based on
“the evidence presented in support of the original motion plus
new documentation.” (See Williamson, supra, 212 Cal.App.4th at
pp. 452, 454.) The plaintiffs opposed the motion, “citing
section 1008 and arguing there were no new facts, circumstances,
or law warranting reconsideration of the forum non conveniens
issue.” (Williamson, at p. 452.) The trial judge to whom the case
had been reassigned granted the motion and stayed the action.
21
(Ibid.) “She cited several grounds for her authority to consider
the renewed motion, including section 410.30. On the merits,
[the court] found that, while it had initially appeared th[e] case
primarily concerned vehicle design and crashworthiness, with
discovery nearly complete,” it became apparent that causation
“would also be a major issue at trial,” and that the resolution of
that issue “would involve the testimony of the numerous Utah
accident eyewitnesses.” (See ibid.)
On appeal, the Williamson court rejected the plaintiffs’
argument that the trial court had “erred in staying the California
action on [its] own motion because [it] did not find the prior
ruling was an abuse of discretion based on the evidence originally
presented” in support of the initial forum non conveniens motion.
(See Williamson, supra, 212 Cal.App.4th at pp. 453–455.) The
Court of Appeal observed that “[s]ection 410.30, subdivision (a)
states, ‘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.’ ” (Williamson, at p. 453, quoting § 410.30, subd. (a).)
The appellate court held that “the plain language” of the statute
conferred upon the trial court “the authority to reconsider on [its]
own motion whether California was a convenient forum.” (See
Williamson, at p. 455; see also Green v. State of California (2007)
42 Cal.4th 254, 260 (Green) [“We must look to the statute’s words
and give them their usual and ordinary meaning. [Citation.] The
statute’s plain meaning controls the court’s interpretation unless
its words are ambiguous.”].)
The Court of Appeal cited Britton in support of its
construction of section 410.30, subdivision (a). (Williamson,
22
supra, 212 Cal.App.4th at pp. 453–454.) The Williamson court
acknowledged that “Britton focused on the interplay between
sections 418.10 and 410.30” in deciding “whether [a] renewed
motion” filed nearly a year after the trial court denied the first
motion “was timely.”9 (See Williamson at pp. 453–454.)
Nevertheless, according to the Williamson court, Britton was
instructive because that prior decision “acknowledged
section 410.30, subdivision (a) grants a trial court independent
authority to determine whether California is a convenient forum
even if a party’s forum non conveniens motion does not otherwise
satisfy the requirements of section 1008 for reconsideration of a
prior order or renewal of an earlier motion.” (See Williamson, at
p. 454.)
The Williamson court also relied upon a passage from
Britton which stated that deeming the renewed motion therein to
be timely under section 410.30 was “ ‘a reasonable rule because it
may be necessary to conduct discovery to develop the factual
underpinnings of a forum non conveniens motion’ [citation], and
‘to retain a case for the entire duration of the litigation because
the lack of connection to California was unclear at the outset
9 Section 418.10, subdivision (a) provides in pertinent part:
“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 . . . [¶] . . . [t]o stay or
dismiss the action on the ground of inconvenient forum”
(§ 418.10, subd. (a)(2)), whereas section 410.30, subdivision (b)
provides: “The provisions of Section 418.10 do not apply to a
motion to stay or dismiss the action by a defendant who has made
a general appearance.” (§ 410.30, subd. (b).) We discuss Britton
in further detail in Discussion, part B.3, post.
23
would impair the state’s interest in avoiding burdening courts
and potential jurors with litigation in which the local community
has little concern’ [citation].” (Williamson, supra,
212 Cal.App.4th at p. 454.) Williamson remarked that “[t]his
reasoning equally applies to the circumstances presented in this
case. Merely because a defendant brings an unsuccessful forum
non conveniens motion shortly after a case is filed should not
deprive the trial court of its independent statutory authority to
subsequently reconsider the issue once the facts of the litigation
are more fully developed.” (Ibid.)
In sum, the Williamson court held that section 410.30,
subdivision (a) permitted the trial court, on its own motion, to
reconsider its prior forum non conveniens ruling regardless of
whether the defendant’s successive motion complied with
section 1008, and even though the court’s ruling was prompted by
the successive motion and the court had relied on new evidence
that was not included in the initial unsuccessful motion. (See
Williamson, supra, 212 Cal.App.4th at pp. 451, 453–456.) The
trial court’s citation of section 410.30 as authority to consider the
second motion in Williamson was sufficient to invoke the court’s
statutory “authority to reconsider on [its] own motion whether
California was a convenient forum” (see Williamson, at pp. 452,
455), and the trial court in this case likewise cited this statute in
support of its order of dismissal.
Williamson thus disposes of R&J’s arguments that
section 1008 barred the trial court in the instant case from
dismissing the action in response to Centria’s renewed motion
and in reliance on new evidence not included in Centria’s first
motion. In the remainder of Discussion, part B, we discuss R&J’s
24
and the dissent’s arguments that we should decline to apply
Williamson’s holding to this case.10
3. R&J does not persuade us that Williamson was
wrongly decided
Division Three of the Fourth Appellate District decided
Williamson. (Williamson, supra, 212 Cal.App.4th at p. 449.)
“We, of course, are not bound by the decision of a sister Court of
Appeal. [Citation.] But ‘[w]e respect stare decisis, however,
10 Because Williamson held that section 410.30,
subdivision (a) empowers courts to reconsider whether California
is a convenient forum notwithstanding a party’s failure to comply
with section 1008 (see Williamson, supra, 212 Cal.App.4th at
p. 454), we do not address R&J’s or the dissent’s contention that
the trial court lacked the inherent authority to reconsider its
prior ruling. (See Dissent, part B, post [asserting the trial court
lacked the inherent authority to reconsider its prior ruling].) (See
also Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096, 1102–1103,
1107 [holding a trial court’s inherent authority, on its own
motion, to reconsider prior rulings is “derived from the California
Constitution”] (Le Francois); Williamson, at p. 453 [holding that
Le Francois did not warrant reversal of the trial court’s ruling
because Le Francois did not address the court’s statutory powers
under § 410.30, subd. (a)].)
Additionally, although Williamson affirmed an order
staying an action on the ground of forum non conveniens and not
an order that dismissed an action on that basis (see Williamson,
supra, 212 Cal.App.4th at pp. 451, 456), R&J does not claim that
this distinction has any bearing on the trial court’s authority to
reconsider its prior ruling in the instant case. Furthermore, we
note that section 410.30, subdivision (a) provides that a trial
court may “stay or dismiss” a matter on “its own motion . . . .”
(See § 410.30, subd. (a), italics added.)
25
which serves the important goals of stability in the law and
predictability of decision. Thus, we ordinarily follow the
decisions of other districts without good reason to disagree.’
[Citation.]” (The MEGA Life & Health Ins. Co. v. Superior Court
(2009) 172 Cal.App.4th 1522, 1529.) For the reasons discussed
below, we find that R&J has not convinced us to disagree with
Williamson.
R&J’s principal contention is that we should decline to
follow Williamson because it misconstrued a Court of Appeal
decision that interpreted section 410.30, to wit, Britton. (See also
Williamson, supra, 212 Cal.App.4th at pp. 453–454 [relying on
Britton in its analysis].) Britton arose out of a helicopter crash in
Idaho. (Britton, supra, 153 Cal.App.4th at p. 130.) The
helicopter pilot injured in the crash, the pilot’s wife, the entity
that owned the helicopter, and a principal of that entity brought
suit against two entities that serviced the helicopter engine,
along with the successor of the manufacturer of the engine.
(Ibid.) Shortly after the action was filed, one of the defendants
that serviced the engine moved to stay or dismiss the action for
forum non conveniens, and the other two defendants joined that
motion. (Ibid.) The trial court denied this initial motion. (Ibid.)
Thereafter, the three defendants subsequently answered
the complaint, the plaintiffs named a new defendant that also
answered, and the trial court granted an unopposed motion for
summary judgment terminating the plaintiffs’ claims against the
defendant that filed the initial forum non conveniens motion.
(See Britton, supra, 153 Cal.App.4th at p. 131.) More than a year
after the original forum non conveniens motion was filed, one of
the defendants renewed the motion, and the other two
defendants joined that renewed motion. (See ibid.) The trial
26
court granted the motion and stayed the action pending the
initiation and conclusion of litigation in Idaho. (Ibid.)
On appeal of the order on the renewed forum non
conveniens motion, the plaintiffs argued the motion was untimely
under section 418.10 because the defendants filed it “a year after
most defendants answered the complaint.” (See Britton, supra,
153 Cal.App.4th at pp. 130–132.) The Britton court rejected this
argument in part because the appellate court held that
section 410.30 permitted the trial court to stay the action on its
own motion, regardless of whether the renewed forum non
conveniens motion was filed after section 418.10, subdivision (a)’s
deadline (i.e., “ ‘on or before the last day of [the defendant’s] time
to plead or within any further time that the court may for good
cause allow’ ”). (See id. at pp. 132, 135.) Britton explained: “In
granting the renewed motion, the trial court relied on its
authority under section 410.30 to consider the convenience of the
forum on its own motion.” (Id. at p. 132.) Affixed to the
conclusion of this textual sentence in the opinion is a footnote in
which the Britton court observed: “The trial court specified that
it was considering the issue on its own merits in response to
plaintiffs’ contention that the renewed motion was not a proper
motion for reconsideration under section 1008.” (Id. at p. 132 &
fn. 2.) The next textual sentence after this footnote reads: “The
plain language of section 410.30 authorized the trial court to
consider whether to stay the action on the ground of forum non
conveniens.” (Britton, at p. 132.) Thus, the Britton court held
that the plain language of section 410.30, subdivision (a) allowed
the trial court in that case to reassess the inconvenient forum
27
issue on its own motion.11 (See Britton, at p. 132; see also ibid.
[thereafter addressing the plaintiffs’ contention that “the trial
court lacked authority to raise the forum non conveniens issue,
even on its own motion, because the issue was waived by
defendants,” italics added].)
R&J claims the Williamson court misread Britton by
concluding that the decision stands “for the proposition that
section 1008 does not apply to renewed motions brought under
section 410.30 . . . .” The Britton court did not explicitly state
that a trial court may stay or dismiss an action in response to a
renewed forum non conveniens motion that fails to comply
with the requirements of section 1008. (See Britton, supra,
11 The dissent correctly points out that Britton
“ ‘construe[d] the provisions of sections 418.10 and 410.30, both
relating to forum non conveniens motions, in harmony’ and
concluded that 418.10 specifies the procedure before a defendant
has appeared whereas ‘[s]ection 410.30 applies after a defendant
has appeared.’ ” (See Dissent, part A, post, quoting Britton,
supra, 153 Cal.App.4th at p. 134.) This accurate observation,
however, does not undermine our analysis of the decision or give
full credit to the rulings in Britton. The Britton court articulated
“ ‘ “two independent reasons . . . for [its] decision, neither one [of
which] is to be considered mere dictum” ’ ” (see Zembsch v.
Superior Court (2006) 146 Cal.App.4th 153, 164, fn. 8, italics
omitted), i.e., (1) section 418.10, subdivision (a)’s deadline for a
party to file a forum non conveniens motion did not preclude the
trial court from, on its own motion, revisiting its prior
inconvenient forum ruling pursuant to section 410.30; and
(2) “section 418.10 provides special procedures for preanswer
forum non conveniens motions,” whereas section 410.30 permits a
defendant to file such a motion after it has appeared. (See
Britton, at pp. 132–135 & fn. 2, fn. omitted.)
28
153 Cal.App.4th at p. 132.) Britton’s conclusion, however, that a
trial court possesses the statutory authority to reconsider the
inconvenient forum issue on its own motion necessarily implies
that section 1008 does not constrain that power. (See ibid.)
Our Supreme Court has interpreted section 1008 “as
limiting the parties’ power to file repetitive motions but not the
court’s authority to reconsider interim rulings on its own motion.”
(See Le Francois, supra, 35 Cal.4th at p. 1107, italics added.)
Indeed, “ ‘[t]he plain language of section 1008 consistently refers
to “applications” for reconsideration and “renewals” of previous
motions.’ [Citation.] ‘Clearly, trial courts do not make
applications, motions, or renewals of motions to themselves.’
[Citation.]” (See id. at p. 1106.) Because an order denying a
forum non conveniens motion is an interim order,12 a trial court’s
exercise of its authority under section 410.30 to, on its own
motion, reconsider that prior ruling is not circumscribed by
section 1008.
Furthermore, beyond merely questioning whether Britton
was correctly decided, R&J does not explain why it apparently
believes the Britton court erred in concluding that a trial court
may act on “ ‘its own motion’ ” to address a forum non conveniens
question for the purposes of section 410.30, subdivision (a), even
12 (See Aghaian v. Minassian (2021) 64 Cal.App.5th 603,
610–612 [characterizing “an order denying an inconvenient forum
motion” as an “interlocutory order”]; Brown v. Upside Gading, LP
(2019) 42 Cal.App.5th 140, 144–146 [indicating that the terms
“interlocutory order” and “interim order” are synonymous];
Black’s Law Dict. (11th ed. 2019) [the entry for “order” likewise
indicates that the terms “interlocutory order” and “interim order”
are synonymous].)
29
though the court was prompted to do so by a party’s renewed
motion. (See Britton, supra, 153 Cal.App.4th at p. 132.)
Accordingly, we reject R&J’s argument that Williamson
misconstrued Britton. Instead, Williamson identified the logical
implication of Britton’s holding, to wit, section 1008 does not
restrict the authority conferred on the trial court by
section 410.30, subdivision (a) to determine, on its own motion,
whether California is a convenient forum.13 (See Williamson,
supra, 212 Cal.App.4th at pp. 454–455.)
R&J further argues that “Williamson is the only case found
after exhaustive research that applies this supposed exemption of
forum non conveniens motions from section 1008.” Our
independent research likewise has not revealed another case
holding that section 410.30, subdivision (a) permits the trial court
to revisit its prior forum non conveniens ruling based on new
evidence presented in a renewed motion that purportedly fails to
comply with section 1008. On the other hand, R&J has not
identified any authority that arrives at the opposite conclusion,
nor has our own research discovered any such case law. Because
13 R&J does not challenge Williamson’s holding that a
trial court may, on its own motion, reconsider the forum non
conveniens issue based on new evidence that was not presented
in connection with the prior motion. (See Williamson, supra,
212 Cal.App.4th at pp. 453–454 [rejecting the plaintiffs’
argument that the trial court erred in staying the action on its
own motion because it did not “find the prior ruling was an abuse
of discretion based on the evidence originally presented” to the
court].) Rather, R&J seems to argue that Williamson’s rationale
for allowing a trial court to consider new evidence is applicable to
only “traditional” forum non conveniens motions, an argument we
reject in Discussion, part B.4, post.
30
Williamson seems to be the only case directly on point, we reject
R&J’s tacit suggestion that Williamson is a mere outlier or a
decision that espouses a minority view.
Lastly, R&J contends, “Williamson likely reached the right
result even under a correct section 1008 analysis, in light of its
recognition that ‘a significant change of circumstances exists in
this case.’ ” (Quoting Williamson, supra, 212 Cal.App.4th at
p. 455.) R&J maintains, “That finding would have brought the
case within the parameters of section 1008, subdivision (b), which
specifically allows for a renewed motion where circumstances
have changed.” The Williamson court, however, made this
remark in the course of rejecting the plaintiffs’ argument that the
trial judge who stayed the case could not reverse the prior judge’s
ruling denying the initial forum non conveniens motion because
no “ ‘significant change of circumstances’ ” had occurred after the
first ruling. (See Williamson, at p. 455.) We thus fail to discern
what relevance this observation has on the validity of
Williamson’s interpretation of section 410.30.
4. R&J’s argument that Williamson’s holding should be
limited to “traditional” forum non conveniens motions
is unpersuasive; R&J’s apparent obfuscation of the
contractual basis for its third party beneficiary claim
illustrates that Williamson’s interpretation of
section 410.30 should apply in nontraditional cases as
well
R&J argues that, “assuming Williamson was correctly
decided, its holding should be limited to a true forum non
conveniens motion, not a motion for enforcement of a
forum-selection clause.”
31
In particular, R&J notes that “[b]oth Britton and
Williamson justified their holdings on the rationale that ‘it may
be necessary to conduct discovery to develop the factual
underpinnings of a forum non conveniens motion.’ ” (Quoting
Britton, supra, 153 Cal.App.4th at p. 135; citing Williamson,
supra, 212 Cal.App.4th at p. 454.) R&J points out the Britton
court “determined that ‘to retain a case for the entire duration of
the litigation because the lack of connection to California was
unclear at the outset would impair the state’s interest in avoiding
burdening courts and potential jurors with litigation in which the
local community has little concern[.]’ ” (Quoting Britton, at
p. 135.) Further, R&J notes that the Williamson decision relied
on “both [of the above quoted] statements” from Britton. (Citing
Williamson, at p. 454.) R&J submits that “[n]either rationale
applies to forum-selection clause cases” because “the moving
party [in such cases] knows the clause it seeks to enforce from the
very beginning of the litigation” and “[t]he duration of the
litigation will not change that.”14
14 R&J also intimates that Williamson’s and Britton’s
principles should not apply to this case because the factors
governing traditional forum non conveniens motions do not apply
here and R&J bears the burden of proof in resisting the motion,
whereas the burden rests with the party filing a traditional
forum non conveniens motion. (See also Discussion, part B.1,
ante [acknowledging these differences between traditional forum
non conveniens motions and motions based on mandatory forum
selection clauses].) R&J fails to explain through reasoned
argument what relevance these distinctions have on whether
Williamson and Britton should be limited to “traditional” forum
non conveniens cases.
32
We first note that the text of section 410.30, subdivision (a)
does not distinguish between traditional and nontraditional
forum non conveniens motions. Rather, the provision authorizes
a court to “stay or dismiss the action” “upon . . . its own motion” if
it “finds that in the interest of substantial justice an action
should be heard in a forum outside this state . . . .” (See § 410.30,
subd. (a).)
The facts of the instant case demonstrate that allowing a
trial court to, on its own motion, reconsider a prior ruling on a
nontraditional forum non conveniens motion based on evidence
not previously presented can further “the state’s interest in
avoiding burdening courts and potential jurors with litigation in
which the local community has little concern.” (See Britton,
supra, 153 Cal.App.4th at p. 135.) As discussed in greater detail
below, until R&J filed its opposition to the renewed forum non
conveniens motion, Centria and the trial court were not aware
that R&J’s third party beneficiary theory was predicated on ASI’s
purchase order to Centria, which document is subject to the
2005 dealer agreement’s forum selection clause. (See Discussion,
part C, post.) Given that it became apparent in the course of
litigating the forum non conveniens question that ASI—and, by
extension, R&J as a purported third party beneficiary—had
relinquished the right to pursue claims in California, it would be
unfair to burden the courts and jurors of this state with further
litigation of this case.15
15 (See Smith, Valentino & Smith, Inc. v. Superior Court
(1976) 17 Cal.3d 491, 495 [“[A]lthough we have acknowledged a
policy favoring access to California courts by resident plaintiffs
[citation], we likewise conclude that the policy is satisfied in
33
In its first amended complaint, R&J vaguely alleged that in
2014, ASI and Centria “entered into a written contract in
connection with” R&J’s purchase order to ASI for “specific
products and accompanying paint coatings,” and that this
contract between ASI and Centria “was made for [R&J’s]
benefit . . . .” In this pleading, R&J did not explain whether this
2014 written contract between ASI and Centria was a purchase
order, dealer agreement, or some other writing. Similarly, in its
opposition to Centria’s initial motion, R&J failed to expound
further on this issue, but instead simply pointed out it had
alleged in the first amended complaint that “CENTRIA and ASI
entered into an agreement in 2014, in which CENTRIA would
manufacture and coat specific materials for installation for a
public works project at the Port of Long Beach for the benefit of
R&J.”16
those cases where . . . a plaintiff has freely and voluntarily
negotiated away his right to a California forum.”]; Marina
Tenants Assn. v. Deauville Marina Development Co. (1986)
181 Cal.App.3d 122, 132 [“A third-party beneficiary cannot assert
greater rights than those of the promisee under the contract.
[Citation.] . . . ‘[W]hen a plaintiff seeks to secure benefits under a
contract as to which he is a third-party beneficiary, he must take
that contract as he finds it. . . . [T]he third party cannot select
the parts favorable to him and reject those unfavorable to
him.’ ”].)
16 In the opposition to Centria’s original forum non
conveniens motion, R&J cited paragraph 58 of its first amended
complaint to support the proposition that R&J had alleged that
“CENTRIA and ASI entered into a written agreement on or about
April 23, 2014.” In fact, R&J averred in paragraph 58 of its first
34
In R&J’s opposition to Centria’s renewed forum non
conveniens motion, R&J asserted: “CENTRIA conceded the
existence of a contract—other than a dealer agreement—with
ASI stemming from R&J’s purchase order. Mr. Laramie declared
that it was his understanding that R&J ‘ . . . purchased sheet
metals and related materials from ASI . . .’ and that ‘ASI
purchased certain of those materials from Centria in the First
Quarter of 2014.’ ” In its respondent’s brief, Centria asserts that
R&J’s opposition to the renewed motion was the first time that
R&J had clarified that its third party beneficiary theory was
premised on a purchase order sent to Centria for the materials
R&J had requested from ASI. By failing to dispute this assertion
in its reply to Centria’s respondent’s brief, R&J implicitly
concedes that it was not until R&J filed the opposition to the
renewed motion that R&J clarified that its legal theory relies on
a purchase order submitted to Centria. (See Rudick v. State Bd.
of Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that
the appellants made an implicit concession by “failing to respond
in their reply brief to the [respondent’s] argument on th[at]
point”].)
Had R&J clarified the basis of its legal theory at an earlier
point in the proceedings, it would have been apparent to the trial
court that the 2005 dealer agreement’s forum selection clause
applies to R&J’s third party beneficiary claim. As we explain in
Discussion, part C, post, ASI’s purchase order and Centria’s
acknowledgments of that order are governed by the forum
selection clause contained in the 2005 dealer agreement.
amended complaint that R&J sent a purchase order to ASI on or
about April 23, 2014.
35
Because of R&J’s initial failure to identify the documents giving
rise to its cause of action, the trial court erroneously concluded in
its order on the initial motion that because “[R&J] allege[d] that
[Centria] and ASI entered an agreement for the benefit of [R&J]
in 2014, not 2005,” R&J was not bound by the forum selection
clause in the 2005 dealer agreement.
Furthermore, the trial court’s statements at the hearing on
the renewed motion suggest that had it been aware of the factual
underpinnings of R&J’s third party beneficiary theory before it
ruled on the initial motion, the court would have been inclined to
grant Centria’s request for a continuance to allow Centria to
authenticate the 2005 dealer agreement properly, thereby
allowing the court to consider that document in ruling on
Centria’s initial motion.17
The dissenting opinion suggests that Centria should have
been aware of the precise nature of R&J’s legal theory before
R&J submitted its opposition to the renewed forum non
conveniens motion. In particular, the dissent points out that
“R&J alleged and argued from the outset that the agreement at
17 At the initial motion hearing, Centria’s counsel
requested a continuance to submit, inter alia, a declaration
properly authenticating the 2005 dealer agreement. The trial
court indicated at the hearing on the renewed motion that, by
granting Centria’s renewed motion, the court was, in effect,
granting Centria’s prior request for a continuance of the initial
hearing—i.e., the court stated it had “reviewed what [it] did at
the last hearing, where [it] did not grant a continuance,” and
decided to “exercis[e its] discretion to do that.” (See also Carbajal
v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 [noting that a
trial court has the discretion to consider evidence the movant has
failed to include with its opening brief].)
36
issue was a contract between ASI and Centria that arose out of
R&J’s purchase order in 2014.” (See Dissent, part C, post.) As
we explained earlier in this section, however, R&J initially failed
to identify clearly which contract between ASI and Centria was
the basis of R&J’s third party beneficiary theory. R&J’s
opposition to the renewed motion was the first time it intimated
that this theory was predicated on a purchase order from ASI,
rather than on some other document that potentially could have
superseded the 2005 dealer agreement.18
Accordingly, the procedural history of this case
demonstrates that Williamson’s and Britton’s holdings ought not
artificially be limited to “traditional” forum non conveniens
motions. Permitting trial courts to revisit orders denying
inconvenient forum motions based on mandatory forum selection
clauses ensures that parties to contracts, and, by extension, third
party beneficiaries, are bound to their agreements and cannot
avoid these obligations by either unintentionally or deliberately
obfuscating the identity of the documents underlying their
claims.
We also acknowledge the trial court found that Centria had
established “new or different facts to warrant a subsequent
application for the same order” under section 1008,
subdivision (b) because Centria had offered evidence that: (1) the
“renewed motion [was] necessitated by [R&J’s] insistence that a
2014 Agreement between [Centria] and ASI supersedes the
18 Adding to the confusion created by R&J’s arguably
intentionally vague pleading, is the existence of a 2014 dealer
agreement that contains the same Pennsylvania forum selection
clause as that included in the 2005 dealer agreement.
37
express forum selection clause of the 2005 Dealer [A]greement
and that [R&J’s] opposition to [Centria’s] initial motion argued
that this 2014 Agreement controls without alleging the terms of
the agreement or whether it too contained a forum selection
clause”; (2) there is “a 2014 Dealer Agreement between [Centria]
and ASI, which does contain the same forum selection clause as
the 2005 Dealer Agreement”; and (3) “[R&J’s] improperly served
and untimely opposition materially prejudiced [Centria’s] ability
to prepare a reply to the original motion and present the new
facts asserted in th[e] renewed motion previously.”
Given our conclusion that section 410.30, subdivision (a)
authorized the trial court to reconsider the denial of Centria’s
original motion, we need not—and thus do not—address whether
the trial court correctly applied section 1008, subdivision (b).
(See Estate of Sapp, supra, 36 Cal.App.5th at p. 104 [“ ‘If the
decision of a lower court is correct on any theory of law applicable
to the case, the judgment or order will be affirmed regardless of
the correctness of the grounds upon which the lower court
reached its conclusion.’ ”].) That being said, we agree with the
trial court that R&J’s conduct had misled the court to initially
believe that R&J was not bound by the forum selection clause
found in the 2005 dealer agreement.
5. We respectfully disagree with the dissent’s assertion
that Williamson was wrongly decided
At bottom, the dissent advances three reasons why it
concludes that Williamson was wrongly decided:
(1) section 1008’s requirements should have applied to the
renewed motion in that case because “the Williamson court’s
conclusion that the trial court acted on its own motion when it
granted a motion by a party appears contrary to the facts and the
38
law”; (2) Williamson is undermined by a later Supreme Court
decision, to wit, Even Zohar Construction & Remodeling, Inc. v.
Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (Even Zohar
Construction & Remodeling, Inc.); and (3) a trial court can, on its
own motion, set aside a ruling only if the law and evidence
submitted in connection with the original motion demonstrates
that the prior ruling was erroneous.19 (See Dissent, part A, post.)
Respectfully, we disagree.
i. We reject the dissent’s assertion Williamson
erred in concluding that the trial court in that
case had acted on its own motion
The dissent argues “[t]here is no basis to conclude that the
Legislature intended that a stay or dismissal on the trial court’s
‘own motion’ encompasses an order made in response to and in
reliance on a renewed motion or motion for reconsideration by a
party, as happened here and in Williamson.” (Dissent, part A,
post.) The dissent further maintains: “The statute, which allows
the court to stay or dismiss an action ‘upon motion of a party or
its own motion,’ would be redundant if the latter encompassed
the former.” (Ibid., quoting § 410.30, subd. (a) [italics added by
the dissent].)
The dissent’s approach is inconsistent with our high court’s
decision in In re Winnetka V. (1980) 28 Cal.3d 587 (Winnetka V.).
Winnetka V. arose out of a wardship proceeding commenced
against a minor who committed attempted robbery and assault
19 We recognize that our discussion of the dissent’s
arguments differs slightly from the manner in which Dissent,
part A, post is organized. We have consolidated certain
contentions that we believe relate to one another.
39
with a deadly weapon. (See Winnetka V., at pp. 589–590.) At the
minor’s disposition hearing, a juvenile court referee decided not
to commit the minor to the California Youth Authority (CYA), but
to instead place her “in a county-operated juvenile facility . . . .”
(See id. at p. 590.) The prosecution later sent a letter to the
presiding judge of the juvenile department requesting a
rehearing of the referee’s disposition, which relief the presiding
judge granted without first affording the minor notice and an
opportunity to be heard. (See id. at pp. 590–591, 593–595.) The
new judge to whom the case was thereafter reassigned ultimately
decided to commit the minor to the CYA. (Id. at p. 590.) The
minor appealed, inter alia, the commitment order. (Id. at
pp. 590–591.)
The statutes at issue in Winnetka V. permitted “rehearing
of a referee’s disposition only on (1) application by the minor or
the parent or guardian ([Welf. & Inst. Code,] § 252), or (2) a
juvenile judge’s ‘own motion’ ([Welf. & Inst. Code,] § 253).” (See
Winnetka V., supra, 28 Cal.3d at p. 591; see also id. at p. 589,
fn. 1 [noting that all statutory references in the opinion were to
the Welf. & Inst. Code].) The Supreme Court concluded the
rehearing was improperly granted on the ground that the minor
was “denied due process because the judge ordered rehearing
without giving her notice and an opportunity to respond . . . .”20
(See Winnetka V., at pp. 593–595.)
20 R&J does not assert that the trial court violated its due
process rights. In any event, any such argument would not be
well-founded given that R&J filed an opposition to the renewed
motion and appeared at the hearing thereon.
40
Although the Supreme Court ultimately decided to reverse
the commitment order, it first rejected the minor’s argument that
“[t]he order to rehear was not on the court’s own motion because
it was prompted by the [prosecution’s] letter.” (See Winnetka V.,
supra, 28 Cal.3d at pp. 591–593.) The Winnetka V. court
reasoned it saw “nothing in section 253 . . . that prohibits the
court from receiving outside communications before deciding to
order rehearing on its own motion.” (Winnetka V., at p. 591.)
The court also remarked that “[t]he impetus to action sometimes
will come from others—the referee or other interested observers
such as the district attorney.” (See id. at p. 592.) The Supreme
Court closed its analysis by stating: “We therefore conclude that
the order for rehearing was not improper on the ground that it
was preceded and may have been prompted by a letter from the
district attorney’s office.” (See id. at p. 593.)
Likewise, nothing in the text of section 410.30,
subdivision (a) indicates that a trial court may not, “upon . . . its
own motion,” revisit a prior forum non conveniens ruling at a
party’s suggestion. (See § 410.30, subd. (a).) Thus, Winnetka V.
substantiates Williamson’s interpretation of section 410.30,
subdivision (a). Indeed, approximately 25 years after the
Winnetka V. decision, the Supreme Court provided further
support for Williamson’s holding that a trial court may, on its
own motion, reconsider a prior ruling in response to a party’s
filing. Specifically, the Le Francois court stated, “If a court
believes one of its prior interim orders was erroneous, it should
be able to correct that error no matter how it came to acquire that
belief.” (Le Francois, supra, 35 Cal.4th at p. 1108, italics added.)
The high court further remarked, “[I]t should not matter whether
the ‘judge has an unprovoked flash of understanding in the
41
middle of the night’ [citation] or acts in response to a party’s
suggestion.” (Ibid.) Accordingly, a court may act on its own
motion pursuant to section 410.30 even if it was prompted to do
so by a party’s written submission.
Winnetka V. also refutes the dissent’s claim that
Williamson’s construction of section 410.30, subdivision (a)
allowing a court to revisit a prior forum non conveniens ruling in
response to party’s renewed motion renders “redundant” the text
from that provision allowing the court to stay or dismiss an
action upon a party’s motion. (See Dissent, part A, post.) The
Winnetka V. court held “a mere communication from the district
attorney or other interested person has no official status, and the
court is free to reject it informally” because “[s]ection 252 . . .
confer[s] a right to ‘apply . . . for a rehearing’ only on the minor or
one acting on behalf of the minor.” (See Winnetka V., supra,
28 Cal.3d at pp. 591–592.) Thus, the Supreme Court’s
interpretation of Welfare and Institutions Code sections 252
and 253 permitted, but did not require, the juvenile court to
consider whether to order a rehearing in response to the district
attorney’s letter. (See Winnetka V., at pp. 591–593.) Put
differently, Winnetka V. recognized two mutually exclusive,
nonoverlapping categories of party submissions that may trigger
a rehearing of a referee’s disposition: (1) an application filed by a
minor or someone acting on his or her behalf, which the juvenile
court must consider; and (2) a communication from another
interested person, which the juvenile court may, but need not,
consider. (See ibid.)
With regard to forum non conveniens motions,
section 410.30, subdivision (a) permits a party to file its first
motion seeking to stay or dismiss an action, which the trial court
42
must consider. (See § 410.30, subd. (a) [“When a court upon
motion of a party . . . 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[,]” italics added].) If the
court denies that motion and the party later files a successive
motion to stay or dismiss the action on the ground of forum non
conveniens, section 1008 permits the court to disregard that
motion if it does not satisfy the statute’s requirements.21
In contrast, section 410.30, subdivision (a) also confers
upon the court the discretion to consider the filing in determining
whether to stay or dismiss the action on its own motion.22 The
only constraint section 410.30, subdivision (a) places on the trial
court’s exercise of that discretion is the requirement that the
court “find[ ] that in the interest of substantial justice” the
“action should be heard in a forum outside this state . . . .” (See
§ 410.30, subd. (a).) As noted in our discussion of Williamson and
Britton in Discussion, part B.4, ante, that discretion is informed
by the court’s independent interest in ensuring that a case is
expeditiously tried in the proper forum (e.g., a court chosen by a
21 (See Le Francois, supra, 35 Cal.4th at p. 1108 [“[A] party
may not file a written motion to reconsider that has procedural
significance if it does not satisfy the requirements of
section . . . 1008.”].)
22 (See Williamson, supra, 212 Cal.App.4th at p. 454
[“[S]ection 410.30, subdivision (a) grants a trial court
independent authority to determine whether California is a
convenient forum even if a party’s forum non conveniens motion
does not otherwise satisfy the requirements of section 1008 for
reconsideration of a prior order or renewal of an earlier
motion.”].)
43
forum selection clause). Because Williamson’s plain language
interpretation of the statute recognizes two mutually exclusive,
nonoverlapping categories of party submissions that may result
in the stay or dismissal of an action on the basis of inconvenient
forum (i.e., (1) inconvenient forum motions the trial court must
consider, and (2) inconvenient forum motions the court may, in its
discretion, consider), Williamson’s holding does not render any
portion of the statute superfluous.
ii. Even Zohar Construction & Remodeling, Inc.
does not undermine Williamson
Next, the dissent intimates that our Supreme Court’s
decision in Even Zohar Construction & Remodeling, Inc.
establishes that a trial court can reconsider a prior ruling in
response to a motion that fails to comply with section 1008 only if
the court is doing so pursuant to its inherent, as opposed to
statutory, authority. (See Dissent, part A, post.) Specifically, the
dissent states: “The Supreme Court has ‘recognized only one
exception to section 1008’s “jurisdiction[al]” [citation] exclusivity’:
that a court may ‘ “reconsider its previous interim orders on its
own motion.” ’ [Citation.]” (Dissent, part A, post, quoting
Even Zohar Construction & Remodeling, Inc., supra, 61 Cal.4th
at p. 840, which in turn quotes Le Francois, supra, 35 Cal.4th at
pp. 1096–1097.) The dissent’s quotation from Even Zohar
Construction & Remodeling, Inc. cannot bear the weight the
dissent places on it.
The issue in Even Zohar Construction & Remodeling, Inc.
was “whether section 1008 governs renewed applications under
section 473, subdivision (b) . . . for relief from default based on an
attorney’s ‘sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect’ [citation.]” (See Even Zohar
44
Construction & Remodeling, Inc., supra, 61 Cal.4th at p. 833.)
Our high court held that “section 1008 does govern such
applications.” (Even Zohar Construction & Remodeling, Inc., at
p. 833.) Whether the trial court had the discretion to reconsider
its prior ruling denying relief on its own motion, however, was not
an issue in that case; in fact, the trial court had “felt ‘bound to
follow’ ” a Court of Appeal decision “which the court understood
as holding that section 473[, subdivision ](b) takes precedence
over section 1008, and that relief under section 473[,
subdivision ](b) based on an attorney’s affidavit of fault is
mandatory where no part of the fault is shown to be attributable
to the attorney’s clients.” (See Even Zohar Construction &
Remodeling, Inc., at p. 836.)
The quotation from the decision upon which the dissent
relies appears in the high court’s discussion of case law
construing section 1008. (See Even Zohar Construction &
Remodeling, Inc., supra, 61 Cal.4th at pp. 840–841.) Thus, the
Even Zohar Construction & Remodeling, Inc. court were merely
observing that Le Francois was the only Supreme Court decision
that had recognized an exception to section 1008. (See Even
Zohar Construction & Remodeling, Inc., at p. 841.) The Even
Zohar Construction & Remodeling, Inc. court had no opportunity
to address—let alone overturn—Williamson’s interpretation of
section 410.30. (See Kim v. Reins International California, Inc.
(2020) 9 Cal.5th 73, 85, fn.4 [“ ‘[C]ases are not authority for
propositions that are not considered.’ ”].)
Indeed, the Even Zohar Construction & Remodeling, Inc.
court expressly acknowledged that a statute could confer
independent authority to grant a renewed motion or application
that does not comply with the requirements of section 1008.
45
Specifically, our high court observed, “This is not to say
that section 1008 could never conceivably conflict with another
statute or that in the event of a conflict section 1008 would
inevitably take precedence.” (See Even Zohar Construction &
Remodeling, Inc., supra, 61 Cal.4th at pp. 842–843 [citing as
illustrative an opinion from Division Eight of our district
that was issued in In re Marriage of Hobdy (2004)
123 Cal.App.4th 360, and noting that Hobdy: (1) held that a
former Family Code provision’s more generous timing provision
for a motion to reconsider a prior denial of attorney fees prevailed
as the “more specific statute” over the 10-day deadline for
reconsideration motions in section 1008, subdivision (a), and
(2) rejected the contention that the trial court lacked jurisdiction
on account of the moving party’s failure to bring her
reconsideration motion within section 1008, subdivision (a)’s 10-
day deadline].)
The dissent further suggests that the Even Zohar
Construction & Remodeling, Inc. decision demonstrates that
Williamson was wrongly decided because Williamson did not
“examin[e] . . . the language and purposes of” section 1008 and
section 410.30 to determine whether they “conflict.” (See Dissent,
part A, post.) Yet, as we explained in Discussion, part B.3, ante,
a trial court’s exercise of its authority under section 410.30, on its
own motion, to revisit a prior ruling on an inconvenient forum
motion is not restricted by section 1008, given that the
Le Francois court held that section 1008 “limit[s] the parties’
power to file repetitive motions but not the court’s authority to
reconsider interim rulings on its own motion.” (See Le Francois,
supra, 35 Cal.4th at p. 1107, italics added). Thus, there was no
46
conflict between sections 410.30 and 1008 for Williamson to
analyze.
The dissent intimates that our reading of Le Francois is
incorrect because it would supposedly “ ‘ “eliminat[e] the
distinction” ’ ” between cases in which a trial court grants
reconsideration on its own motion and those in which the court
does so in response to a party’s motion. (See Dissent, part A,
post, quoting Le Francois, supra, 35 Cal.4th at p. 1104.) As we
explained in Discussion, part B.5.i, ante, Williamson’s
construction of section 410.30, subdivision (a) permits, but
does not require, a trial court to reconsider an order denying an
inconvenient forum motion in response to a renewed motion that
falls short of complying with section 1008. Under this approach,
a party may compel a court to revisit its previous forum non
conveniens ruling only if that party adheres to the strictures of
section 1008. Because a trial court may still invoke section 1008
to deny a party’s procedurally improper renewed forum non
conveniens motion, our interpretation of the Le Francois decision
does not “ ‘ “render[ ] the provisions of the statute
meaningless.” ’ ” (See Dissent, part A, post, quoting Le Francois,
at p. 1104.)
We also note the dissent’s construction of sections 410.30
and 1008 would substantially curtail a trial court’s statutory
authority to stay or dismiss an action “in the interest of
substantial justice . . . .” (§ 410.30, subd. (a).) The dissent argues
that a trial court “may grant a stay or dismissal on its own
motion . . . in response to a party’s suggestion or motion, so long
as the court is correcting ‘its own errors’ [citations][ ] pursuant to
the language of section 410.30 and to the Le Francois exception to
section 1008.” (See Dissent, part A, post.)
47
In cases in which a trial court has denied a motion to
dismiss or stay on the ground of inconvenient forum, the dissent’s
interpretation of section 410.30, subdivision (a) would allow the
court to reconsider that ruling only if it has the inherent
constitutional authority to do so under Le Francois and its
progeny, i.e., what the dissent dubs “the Le Francois exception to
section 1008.” (See fn. 10, ante [observing that Le Francois
recognized a trial court’s inherent constitutional authority, on its
own motion, to reconsider prior interim orders].) Thus, it seems
that under the dissent’s interpretation of section 410.30,
subdivision (a), a trial court has the independent statutory (as
opposed to inherent constitutional) authority to act “upon . . . its
own motion” in response to a party’s filing only if the court
had not denied a prior forum non conveniens motion filed by that
party (§ 410.30, subd. (a)); otherwise, the court could grant
reconsideration only if the party’s successive filing satisfies the
Le Francois exception to section 1008 (i.e., the court has inherent
authority to grant such relief). Respectfully, we believe this is too
narrow an interpretation of section 410.30, and also an
interpretation that is inconsistent with the manner in which the
Winnetka V. court construed a similar statute conferring
authority upon a court, on its own motion, to revisit a matter.
(See Discussion, part B.5.i, ante.)
iii. Section 410.30 does not limit a trial court to
considering law and evidence proffered in the
original motion when it exercises its authority,
on its own motion, to stay or dismiss an action
in response to a party’s renewed motion
The dissent contends “the ‘usual and ordinary meaning’ of
‘own motion’ [does not] include[ ] when a court rules in reliance
48
on new evidence or law in a party’s motion that the court would
not be aware of but for the motion.” (See Dissent, part A, post.)
The dissent further maintains: “Rather, Le Francois and its
progeny suggest that a workable test for whether a trial court
ruled on its own motion is whether the court could have issued
the same ruling sua sponte, even if it did not actually do so.” (See
Dissent, part A, post.)
As an initial observation, the dissent’s approach would
engraft a requirement onto section 410.30, subdivision (a) that is
entirely absent from the text of the statute. The provision
authorizes the court to “stay or dismiss the action” “[w]hen [it]
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 . . . .” (See § 410.30, subd. (a).) The plain
language of the statute does not bar the trial court from
dismissing or staying an action on its own motion based on law or
evidence that a party failed to present in support of a prior
unsuccessful forum non conveniens motion. (See ibid.) Because
the dissent’s construction modifies the statute’s unambiguous
text, we respectfully decline to follow the dissent’s approach. (See
Green, supra, 42 Cal.4th at p. 260 [“If the plain language of a
statute is unambiguous, no court need, or should, go beyond that
pure expression of legislative intent.”].)
In arguing that “whether a trial court is acting on its own
motion in reconsidering a prior order depends on whether the
court relies on new law or evidence that was not present in the
original motion,” it appears the dissent is importing into
section 410.30 a limitation the Court of Appeal in In re Marriage
of Barthold (2008) 158 Cal.App.4th 1301 (Barthold) imposed on a
trial court’s exercise of its inherent authority to reconsider prior
49
rulings. (See Dissent, part A, post, citing Barthold, at pp. 1308,
1314.) As we explained in Discussion, parts B.2–B.3, ante,
Williamson establishes that a trial court has statutory authority,
on its own motion, to reconsider its prior forum non conveniens
rulings that is independent of the court’s inherent authority to
revisit previous orders.
Regardless of whether one agrees with Barthold,23
Barthold’s holding that a court’s inherent authority to reconsider
its prior rulings permits it to consider only evidence and law
submitted in support of the moving party’s initial motion appears
to be based on the doctrine of separation of powers, that is, courts
have the constitutional power to correct their own errors.24 (See
Barthold, supra, 158 Cal.App.4th at pp. 1307–1308.)
In contrast, as we detailed in Discussion, part B.4, ante,
section 410.30, subdivision (a) does not simply allow a trial court
23 The dissent also implies that our division approved of
Barthold’s approach in Cox v. Bonni (2018) 30 Cal.App.5th 287.
(See Dissent, part A, post.) In Cox, we had no occasion to
determine whether Barthold was correctly decided because there
was no dispute that “the trial court did not grant reconsideration
based on the purportedly new law and facts defendant put forth
in its motion for reconsideration . . . .” (See Cox, at pp. 312–314.)
24 The dissent also relies upon two Third District decisions
that followed Barthold; these decisions, however, shed no further
light on the rationale underlying Barthold’s limitation on a trial
court’s inherent authority. (See In re Marriage of Spector (2018)
24 Cal.App.5th 201, 201, 210–216 [citing Barthold with approval
without further explaining the rationale for Barthold’s limitation
on a trial court’s inherent authority]; In re Marriage of Herr
(2009) 174 Cal.App.4th 1463, 1463, 1469–1470 [same], both of
which are cited in Dissent, part A, post.)
50
to correct its own errors. Instead, the provision empowers a trial
court, on its own motion, to decide to stay or dismiss an action,
notwithstanding a denial of a previous inconvenient forum
motion, if it later becomes apparent that California is not the
proper forum for the matter. For example, as noted in
Williamson, discovery conducted after the issuance of the prior
ruling may reveal that the case should be heard elsewhere. (See
Williamson, supra, 212 Cal.App.4th at pp. 454–455.) Further, as
here, a plaintiff’s subsequent clarification of the legal theory
underlying its claim may also demonstrate that the proceedings
do not belong in California because the parties contractually
chose another state as the proper forum in which to litigate their
disputes.
We further observe that the Supreme Court’s decision in
Winnetka V. demonstrates that in certain cases, a trial court may
properly rely on newly submitted evidence in acting on its own
motion. There, the high court contemplated that “an informal
request for rehearing of a referee’s decision” may be based on
“materials . . . br[ought] to the court’s attention other than those
already in the record . . . .” (See Winnetka V., supra, 28 Cal.3d at
p. 595.) The Supreme Court did not declare that a juvenile court
lacks authorization to consider such evidence, but merely held
that the minor must be “given access to all [such] materials” and
“accorded a reasonable opportunity” to respond in writing. (See
ibid.)
For the foregoing reasons, we are unpersuaded by the
dissent’s criticism of the Williamson decision. In accordance with
Williamson’s holding, we conclude that section 410.30 authorized
the trial court to reconsider its prior order denying Centria’s
initial motion to stay or dismiss the action.
51
C. R&J Fails to Establish the Trial Court Erred in
Enforcing the Forum Selection Clause Included in
the 2005 Dealer Agreement
R&J argues that even if the trial court had the authority to
reconsider its prior ruling denying Centria’s first forum non
conveniens motion, the court erred in concluding that R&J was
bound by the forum selection clause in the 2005 dealer
agreement. Specifically, R&J contends: (1) R&J’s third party
beneficiary claim is predicated on “the 2014 purchase contract
between ASI and Centria,” which is governed by its “own terms
and conditions” and “does not contain a forum-selection clause”;
(2) the 2014 purchase contract does not incorporate by reference
the terms of the 2005 dealer agreement; and (3) “[t]he Terms and
Conditions of the 2014 purchase contract contain provisions
which are superfluous if the 2005 dealership agreement is
incorporated into it and controls all transactions between Centria
and ASI.” We reject these arguments and conclude that the
forum selection clause in the 2005 dealer agreement controls.
As a preliminary matter, it is important to define the
“2014 purchase contract between Centria and ASI” that R&J now
asserts gives rise to its third party beneficiary cause of action. In
its opening brief, R&J claims that the following documents
Centria submitted in connection with its reply brief on the
renewed motion “evidence the 2014 purchase agreement”: (1) “An
incomplete copy of a February 28, 2014, quote from Centria to
ASI for the materials contemplated by R&J for the Project”;
(2) “[t]he March 19, 2014 ‘preliminary purchase order’ from ASI
to Centria, placing the order for the materials ordered from ASI
by R&J in April 2014”; and (3) “[t]wo acknowledgments from
52
Centria to ASI dated April 29, 2014, relating to R&J’s order.”25
Later in that brief, R&J further suggests it believes that the
quote is part of the so-called “2014 purchase contract . . . .” Yet,
R&J does not elaborate on the basis of its apparent belief that
Centria’s quote to ASI is part of the contract supporting the third
party beneficiary cause of action, and R&J seems to abandon this
position in its reply by omitting the February 18, 2014 quote from
the definition of “the 2014 purchase contract” that R&J utilizes
in that brief. Accordingly, we address only whether ASI’s
purchase order and Centria’s two purchase acknowledgments are
subject to the forum selection clause in the 2005 dealer
agreement.26
25 R&J complains that “Centria for the first time presented
the [trial] court with documents evidencing the April 2014
purchase contract” “[i]n replying to R&J’s opposition” to the
renewed motion, and that “R&J had no opportunity to argue the
interpretation of the 2014 purchase contract” as a result.
Nevertheless, R&J does not argue that it would be improper for
us on appeal to consider those documents in determining whether
the trial court erred in dismissing the action against Centria.
26 (See Hernandez, supra, 37 Cal.App.5th at p. 277
[“ ‘When an appellant raises an issue “but fails to support it with
reasoned argument and citations to authority, we treat the point
as waived. [Citations.]” [Citation.]’ [Citation.] . . . [¶] . . . ‘We
are not bound to develop appellants’ arguments for them.’ ”];
cf. Young v. Daimler AG (2014) 228 Cal.App.4th 855, 864, fn. 6
[concluding that the “[a]ppellants appear[ed] to have abandoned”
a legal theory raised in their opening brief by claiming in their
reply that a different theory was “ ‘[t]he only issue before the
Court’ ”].)
53
“Courts will construe together several documents
concerning the same subject and made as part of the same
transaction [citations] even though the documents were not
executed contemporaneously [citation] and do not refer to each
other [citations]. It is generally a factual question whether
several documents were intended to govern the same transaction.
[Citations.] However, ‘[i]nterpretation of a contract presents a
question of law unless it depends on conflicting evidence, and
an appellate court is not bound by a trial court’s interpretation
which does not depend on the credibility of extrinsic evidence.’
[Citations.]” (Boyd v. Oscar Fisher Co. (1989)
210 Cal.App.3d 368, 378, citing, inter alia, Civ. Code, § 1642
[“Several contracts relating to the same matters, between the
same parties, and made as parts of substantially one transaction,
are to be taken together.”]; see also Versaci v. Superior Court
(2005) 127 Cal.App.4th 805, 814 [“Civil Code section 1642 ‘is most
frequently applied to writings executed contemporaneously, but it
is likewise applicable to agreements executed by the parties at
different times if the later document is in fact a part of the same
transaction.’ ”].)
We conclude as a matter of law that the 2005 dealer
agreement, ASI’s purchase order, and Centria’s purchase order
acknowledgment forms all concern the same subject and are part
of the same transaction.27
27 R&J does not contest, and thus leaves undisturbed, the
trial court’s finding that the 2005 dealer agreement was the
“Dealer Agreement in effect” when ASI purchased “the materials
at issue in the underlying lawsuit . . . .” (See Yu, supra,
196 Cal.App.4th at p. 787; Estate of Sapp, supra, 36 Cal.App.5th
at p. 104.)
54
In particular, paragraph 12 of the 2005 dealer agreement
provides in pertinent part: “CENTRIA will issue, in a timely
manner, an acknowledgment of each bill of material Dealer
submits. . . . The Dealer shall promptly review the order
acknowledgment form and advise CENTRIA of corrections it
believes are necessary. . . . Engineering Support Services will be
provided pursuant to separate purchase orders between
CENTRIA and Dealer or Dealer may request that CENTRIA
quote any project on a lump sum basis.” (Italics added.)
In turn, paragraph 13 states: “Unless otherwise
specifically agreed in writing by CENTRIA, the terms and
conditions stated in the CENTRIA Price Book and CENTRIA’s
terms and conditions of sale as stated in CENTRIA’s order
acknowledgment form shall be applicable to all sales of Products
by CENTRIA to Dealer, notwithstanding any additional or
conflicting terms or conditions stated by Dealer in any purchase
order or other writing. In the event of a conflict between the
provisions of this Agreement and the terms and conditions stated
in the Price Book or in the order acknowledgment form, the
provisions of this Agreement shall govern.” (Italics added.)
In addition, paragraph 17 provides in relevant part: “The
parties may modify, vary or alter the provisions of this
Agreement only by an instrument in writing duly signed by
authorized representatives of the parties . . . .”
When paragraphs 12 and 13 of the 2005 dealer agreement
are read together, it is apparent the parties intended that the
agreement apply to sales effectuated through ASI’s purchase
orders and Centria’s purchase order acknowledgments, meaning
that the dealer agreement, purchase orders, and purchase order
acknowledgments all concern the same subject and are part of
55
the same transaction. Furthermore, paragraphs 13 and 17 evince
the parties’ intention that the 2005 dealer agreement’s terms
govern the sales associated with ASI’s purchase orders and
Centria’s purchase order acknowledgments.28
Similarly, paragraph 16 of the 2005 dealer agreement
demonstrates that the parties intended the forum selection
clause to apply to actions relating to sales Centria made to ASI
via acknowledgment forms issued in response to ASI’s purchase
orders. As relevant here, paragraph 16 provides: “Any action
brought under, as a result of or relating to this Agreement shall be
instituted and litigated in the courts of the Commonwealth of
Pennsylvania located in Allegheny County, Pennsylvania. Each
party irrevocably waives any objection on the grounds of venue,
forum non-conveniens or any similar grounds, . . . and consents to
the jurisdiction of said courts.”29 (Italics added.) Thus, Centria
28 Although paragraph 17 allows the parties to modify the
2005 dealer agreement via “an instrument in writing duly signed
by authorized representatives of the parties,” ASI’s purchase
order and Centria’s two purchase order acknowledgments are not
signed by ASI’s and Centria’s respective representatives.
29 Although paragraph 16 of the 2005 dealer agreement
also provides that “[t]his Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania,” R&J and Centria tacitly agree that California
contract law principles govern whether the dealer agreement’s
forum selection clause applies to R&J’s cause of action against
Centria. (See Artal, supra, 111 Cal.App.4th at p. 275, fn. 2
[“ ‘[B]riefs and argument . . . are reliable indications of a party’s
position on the facts as well as the law, and a reviewing court
may make use of statements therein as admissions against the
party.’ ”].)
56
and ASI agreed to litigate any disputes concerning Centria’s sales
of its goods (e.g., the duration of a warranty) in Pennsylvania.30
R&J nonetheless insists that “[t]he Terms and Conditions
of the 2014 purchase contract contain provisions which are
superfluous if the 2005 dealership agreement is incorporated into
it and controls all transactions between Centria and ASI.” “For
example, the Terms and Conditions [found in the purchase order
acknowledgment forms], paragraph 11, includes the choice-of-law
provision already present in paragraph 13 of the 2005 dealership
agreement.”31 (See also fn. 29, ante [acknowledging that the
2005 dealer agreement has a Pennsylvania choice of law clause].)
We are unpersuaded.
“The canon against surplusage should not be invoked when
it leads to an unreasonable result.” (Sturgeon v. County of
Los Angeles (2015) 242 Cal.App.4th 1437, 1448, italics omitted;
ibid. [noting that this interpretive canon applies to statutes]; see
also Christian v. Flora (2008) 164 Cal.App.4th 539, 551
[“Contracts . . . are writings to be construed in accordance with
substantially the same canons of interpretation as statutes.”].)
Under R&J’s construction of the documents in question,
Centria would have to repeat in each purchase order
30 (Cf. Cal-State Business Products & Services, Inc. v.
Ricoh (1993) 12 Cal.App.4th 1666, 1675–1676 [holding that forum
selection clauses providing that “ ‘any case or controversy arising
under or in connection with the Agreement[s]’ shall be heard in a
New York court . . . [¶] . . . applied . . . to any cause of action
based on the relationship created by the contract”].)
31 Unlike Centria’s purchase order acknowledgments,
ASI’s purchase order is not accompanied by a page of terms and
conditions.
57
acknowledgment form any potentially applicable term from the
2005 dealer agreement or risk losing the right to enforce any
omitted term. This interpretation is especially absurd when
applied to the forum selection clause in the 2005 dealer
agreement, given that it would make little sense for the parties to
declare that the clause governs “[a]ny action brought . . . as a
result of or relating to this Agreement” if the clause’s
applicability was nonetheless contingent on Centria’s repeating
the provision in the purchase order acknowledgment form.
Because the surplusage canon’s application to this case would
defeat ASI’s and Centria’s mutually expressed intent, and R&J
claims to stand in ASI’s shoes as a third party beneficiary, we
decline to employ the doctrine here. (See Civ. Code, § 1636 [“A
contract must be so interpreted as to give effect to the mutual
intention of the parties as it existed at the time of contracting, so
far as the same is ascertainable and lawful.”].)
In sum, the Pennsylvania forum selection clause in the
2005 dealer agreement applies to R&J’s third party beneficiary
claim because this agreement and the documents ASI and
Centria issued in connection with the sale of the materials in
question concern the same subject matter and are part of the
same transaction. Accordingly, we affirm the trial court’s order
enforcing this forum selection clause.
58
DISPOSITION
The judgment of dismissal is affirmed. Respondent
Centria, Inc. doing business as Centria Architectural Systems is
awarded its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
I concur:
ROTHSCHILD, P. J.
59
CHANEY, J.
I respectfully dissent.
Respondent Centria, Inc. dba Centria Architectural
Systems (Centria) argues that, when the trial court granted its
renewed motion to stay or dismiss proceedings brought under
Code of Civil Procedure1 sections 1008 and 410.30, relying on
new evidence presented with that motion, the court acted on its
“own motion” pursuant to section 410.30 and was not subject to
the requirements of section 1008. I believe this contention is
inconsistent with the facts and the law.
I agree with appellant R & J Sheet Metal, Inc.’s (R&J)
contention that the motion was not based on new or different
facts and thus was improperly granted under section 1008.
Given the jurisdictional nature of section 1008, I would therefore
reverse the judgment.
A. Section 410.30 is not in conflict with section
1008 and is subject to its requirements with
respect to renewed motions.
Section 1008, subdivision (b), allows a party to “make a
subsequent application for the same order upon new or different
facts, circumstances, or law . . . .” (§ 1008, subd. (b).) Subdivision
(e) provides: “This section specifies the court’s jurisdiction with
regard to applications for reconsideration of its orders and
renewals of previous motions, and applies to all applications to
reconsider any order of a judge or court, or for the renewal of a
previous motion, whether the order deciding the previous matter
1 Allundesignated statutory references are to the Code of
Civil Procedure.
or motion is interim or final. No application to reconsider any
order or for the renewal of a previous motion may be considered by
any judge or court unless made according to this section.” (§ 1008,
subd. (e), italics added.)
The Supreme Court has “recognized only one exception to
section 1008’s ‘jurisdiction[al]’ [citation] exclusivity”: that a court
may “ ‘reconsider its previous interim orders on its own motion.’ ”
(Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830, 840 (Even Zohar),
quoting Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois).)
Under the Le Francois exception, “the trial court must conclude
that its earlier ruling was wrong, and change that ruling based
on the evidence originally submitted.” (In re Marriage of
Barthold (2008) 158 Cal.App.4th 1301, 1314 (Barthold); id. at
p. 1308 [Le Francois requires “that the trial court reconsider a
prior ruling based on its own realization that the ruling was
erroneous, and not based upon a determination that the motion
to reconsider should itself be granted on its merits”]; In re
Marriage of Spector (2018) 24 Cal.App.5th 201, 214 [trial court’s
reconsideration of prior order was proper where “there ha[d] been
no additional findings or new evidence presented whatsoever”]; In
re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469–1470
[trial court in Barthold “proper[ly] . . . limited itself to changing
its mind based on the evidence submitted in connection with the
wife’s original motion”].) In Cox v. Bonni (2018) 30 Cal.App.5th
287, 312–313, this court concluded that the trial court had acted
on its own motion where it was “evident the trial court did not
reconsider its order based on any of the purportedly new law or
facts in defendant’s motion, but on its own realization that its
earlier order was in error, as permitted by Le Francois.”
2
Under this standard, the trial court did not act on its own
motion in granting Centria’s renewed motion. The trial court
was not merely prompted to reconsider its prior ruling by the
renewed motion. Rather, it relied on documents filed with the
renewed motion, namely the 2014 dealer agreement that
contained the same forum selection clause as the 2005 dealer
agreement and the declaration of Craig Laramie, which properly
authenticated the 2005 dealer agreement. The court also
expressly agreed with arguments raised by Centria in the
renewed motion. In other words, the record demonstrates that
the trial court determined that Centria’s renewed motion should
be granted on its merits, not based on a realization that its
original ruling was erroneous. Indeed, there does not appear to
be any dispute that Centria’s original motion did not properly
authenticate the 2005 dealer agreement.
Centria argues that the court can sidestep consideration of
section 1008 entirely by concluding that the court acted on its
own motion pursuant to section 410.30. Section 410.30,
subdivision (a) provides that “[w]hen 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.”
Centria relies on Williamson v. Mazda Motor of America,
Inc. (2012) 212 Cal.App.4th 449 (Williamson) for the proposition
that a court can properly grant a renewed motion that does not
comply with section 1008 pursuant to section 410.30. In
Williamson, the defendants moved for reconsideration of a forum
non conveniens ruling when the case was assigned to a new
judge, arguing that “even absent grounds for reconsideration of
3
the prior order under section 1008, [the new judge] could rule on
the renewed motion under section 410.30.” (Id. at p. 452.) The
Court of Appeal agreed. It concluded that Le Francois and
Barthold did not limit the trial court’s authority because neither
of those decisions addressed section 410.30. (Id. at p. 453.)
Instead, the court cited Britton v. Dallas Airmotive, Inc. (2007)
153 Cal.App.4th 127 (Britton) for the proposition that a trial
court has independent authority under section 410.30 “to
determine whether California is a convenient forum even if a
party’s forum non conveniens motion does not otherwise satisfy
the requirements of section 1008 for reconsideration of a prior
order or renewal of an earlier motion.” (Williamson, at p. 454.)
Although the trial court had granted the defendants’ motion, the
Court of Appeal concluded that the trial court judge had acted
under her “authority to reconsider on her own motion whether
California was a convenient forum.” (Id. at p. 455.)
The issue on appeal in Britton was whether the forum non
conveniens motion was timely, not whether a renewed motion
under section 410.30 is subject to the requirements of section
1008. The initial motion in Britton was filed within the time
allowed under section 418.10, subdivision (a),2 and the renewed
motion was filed almost a year after most defendants answered.
(Britton, supra, 153 Cal.App.4th at p. 132.) The trial court
granted the motion, relying on its authority under section 410.30,
2 Section 418.10, subdivision (a) provides that “ ‘[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 . . . (2) To stay or dismiss
the action on the ground of inconvenient forum.’ ” (Britton,
supra, 153 Cal.App.4th at p. 132.)
4
and “specified that it was considering the issue on its own merits
in response to plaintiffs’ contention that the renewed motion was
not a proper motion for reconsideration under section 1008.”
(Ibid., fn. 2.) This lone reference to section 1008 in a footnote of
the opinion suggests that the issue was not litigated on appeal.
The Court of Appeal “construe[d] the provisions of sections 418.10
and 410.30, both relating to forum non conveniens motions, in
harmony” and concluded that 418.10 specifies the procedure
before a defendant has appeared whereas “[s]ection 410.30
applies after a defendant has appeared.” (Id. at p. 134.)
R&J argues that the Williamson court’s conclusion that a
trial court may dismiss or stay an action on forum non
conveniens grounds in response to a motion that fails to satisfy
section 1008 is incorrectly decided. R&J observes that the only
authority Williamson cites for this proposition is Britton, which
did not consider the relationship between section 410.30 and
section 1008 or address the expansive language in section 1008,
subdivision (e) expressly subjecting “all applications . . . for the
renewal of a previous motion” to the requirements of section
1008. I agree that Williamson is unpersuasive for the following
reasons.
First, the Williamson court’s conclusion that the trial court
acted on its own motion when it granted a motion by a party
appears contrary to the facts and the law. There is no basis to
conclude that the Legislature intended that a stay or dismissal on
the trial court’s “own motion” encompasses an order made in
response to and in reliance on a renewed motion or motion for
reconsideration by a party, as happened here and in Williamson.
The statute, which allows the court to stay or dismiss an action
“upon motion of a party or its own motion,” would be redundant if
5
the latter encompassed the former. (§ 410.30, subd. (a), italics
added.) Further, such a reading is inconsistent with the
Supreme Court’s interpretation of actions taken on a trial court’s
own motion under the exception to section 1008 set forth in Le
Francois. It is suggested that the Supreme Court’s statement
that, when reconsidering a prior ruling, “[i]t should not matter
whether the ‘judge has an unprovoked flash of understanding in
the middle of the night’ [citation] or acts in response to a party’s
suggestion” means that a trial court acts on its own motion when
it decides to grant a renewed motion containing new evidence.
(Le Francois, supra, 35 Cal.4th at p. 1108, quoting Remsen v.
Lavacot (2001) 87 Cal.App.4th 421, 427.) However, this claim is
undermined elsewhere in Le Francois. The Supreme Court
expressly “agree[d] with the court in Kerns v. CSE Ins.
Group[ (2003) 106 Cal.App.4th 368, 389], that ‘by eliminating the
distinction between a trial court’s action taken sua sponte and
that made in response to a litigant’s motion, the more recent
cases such as Remsen . . . go too far toward eviscerating the clear
jurisdictional language of section 1008, essentially rendering the
provisions of the statute meaningless.’ ” (Le Francois, at p. 1104.)
The Supreme Court disagreed with the Remsen court’s
statements that whether reconsideration is granted on the court’s
own motion or in response to a party’s motion is “ ‘a distinction
without a difference’ ” and ‘ “constitutionally immaterial.’ ” (Id.
at p. 1101, quoting Remsen, at p. 427; Le Francois, at pp. 1104,
1107, fn. 5.) Instead, the high court “believe[d] . . . that the
Legislature intended this to be a distinction with a difference.”
(Le Francois, at p. 1108.)
As discussed above, following Le Francois, appellate courts
have concluded that whether a trial court is acting on its own
6
motion in reconsidering a prior order depends on whether the
court relies on new law or evidence that was not present in the
original motion. (E.g., Barthold, supra, 158 Cal.App.4th at
p. 1314.) This is consistent with the Supreme Court’s statement
in Le Francois that “[i]f a court believes one of its prior interim
orders was erroneous, it should be able to correct that error no
matter how it came to acquire that belief,” while also recognizing
that granting a party’s motion and acting on the court’s own
motion is “a distinction with a difference.” (Le Francois, supra,35 Cal.4th at p. 1108.) If a trial court realizes that it
misinterpreted the law or failed to appreciate the import of
evidence presented with the original motion, the court has
authority to remedy its errors. In contrast, when a party has
failed to provide relevant evidence or to raise a relevant legal
theory in its original motion, any error is the party’s, not the
court’s. In other words, although section 1008 “do[es] not limit
the court’s ability, on its own motion, to reconsider its prior
interim orders so it may correct its own errors” (id. at p. 1107,
italics added), a court is not correcting its own errors when it
overturns its prior ruling based on evidence or law that was not
before it at the time of the original motion. Thus, while a ruling
on the court’s “own motion” need not be strictly sua sponte, I
disagree that the “usual and ordinary meaning” of “own motion”
includes when a court rules in reliance on new evidence or law in
a party’s motion that the court would not be aware of but for the
motion. (Green v. State of California (2007) 42 Cal.4th 254, 260.)
Rather, Le Francois and its progeny suggest that a workable test
for whether a trial court ruled on its own motion is whether the
court could have issued the same ruling sua sponte, even if it did
not actually do so. To expand the meaning of “own motion” any
7
further would not effectuate its ordinary meaning but would
render it meaningless.
Second, the Courts of Appeal in Britton and Williamson did
not analyze whether and how section 1008 interacts with section
410.30. Considering that the express language in section 1008,
subdivision (e) provides that the requirements of the section
apply to all renewed motions, the Williamson court’s conclusory
assertion that Le Francois and Barthold were inapplicable
because they did not concern a motion made under section 410.30
is unconvincing. (Williamson, supra, 212 Cal.App.4th at p. 453.)
Unless one is willing to disregard the express and jurisdictional
language of section 1008, subdivision (e), I do not believe one can
properly conclude that a trial court acting in response to and
reliance on a renewed motion made under section 410.30, as the
trial court did here, need not comply with section 1008 without
considering how the two statutes interact.
Even Zohar, supra, 61 Cal.4th 830, which was decided after
Williamson, supports that the determination of whether section
1008 applies to a given statute requires an examination of the
language and purposes of both statutes. In that case, the
Supreme Court considered whether section 1008 governs renewed
applications under section 473, subdivision (b) for relief from
default. (Id. at p. 837.) After comparing the legislative purposes
of both statutes, the Supreme Court concluded that section 1008
governs motions under section 473. The Supreme Court
concluded that “[s]ection 1008 expressly applies to all renewed
applications for orders the court has previously refused” and that
“no language in section 473(b) purports to exempt applications for
relief from default from the requirements of section 1008.” (Id. at
pp. 840–841, italics added.) In other words, “section 1008 does
8
not restrict initial applications for relief from default under
section 473(b) in any way, nor does section 473(b) purport to
authorize unlimited repetitions of the same motion.” (Id. at
p. 841.) This interpretation “gives full effect to all provisions of
both,” which is “strongly preferred.” (Ibid.)
Following this methodology, I perceive no conflict between
the purposes or language of sections 410.30 and 1008. “The
question whether section 1008 governs” motions under section
410.30 “is one of law” that is considered de novo. (Even Zohar,
supra, 61 Cal.4th at p. 837.) “ ‘Our fundamental task in
construing’ sections [410.30] and 1008, or any legislative
enactment, ‘is to ascertain the intent of the lawmakers so as to
effectuate the purpose of the statute.’ ” (Ibid.)
“The Legislature codified the doctrine of forum non
conveniens in 1969 by enacting section 410.30.” (Global
Financial Distributors Inc. v. Superior Court (2019) 35
Cal.App.5th 179, 190.) It was amended in 1972 to add
subdivision (b), which provides that section 418.10 does “not
apply to a motion to stay or dismiss by a defendant who has made
a general appearance.” (Assem. Com. on Judiciary, com. on Sen.
Bill No. 573 (1972 Reg. Sess.) July 3, 1972, p. 1.) The purpose of
section 1008 is to “conserve judicial resources by constraining
litigants who would endlessly bring the same motions over and
over,” and is “expressly jurisdictional” to “state that purpose
strongly.” (Even Zohar, supra, 61 Cal.4th at pp. 839–840.)
“Section 1008 expressly applies to all renewed applications
for orders the court has previously refused” and nothing in
section 410.30 purports to exempt it from the requirements of
section 1008. (Even Zohar, supra, 61 Cal.4th at pp. 840–841.)
The purpose of section 410.30 was to codify the forum non
9
conveniens doctrine and to make clear that a party can move to
dismiss or stay on forum non conveniens grounds even after
making a general appearance in the case, notwithstanding the
provisions of section 418.10. If the Legislature also intended that
section 410.30 authorize a court to grant repeated motions
notwithstanding section 1008, it “knew well how to express that
intention.” (Id. at p. 841.) It has not done so.
Thus, a court granting a renewed motion made by a party
under section 410.30 is subject to the requirements of section
1008. In other words, a trial court does not have independent
authority under section 410.30 to grant a renewed motion to stay
or dismiss that fails to satisfy the requirements of section 1008,
but it may grant a stay or dismissal on its own motion (i.e., sua
sponte or in response to a party’s suggestion or motion, so long as
the court is correcting “its own errors” [Le Francois, supra, 35
Cal.4th at p. 1107; Barthold, supra, 158 Cal.App.4th at pp. 1308,
1314]), pursuant to the language of section 410.30 and to the Le
Francois exception to section 1008. This interpretation “gives full
effect to all provisions of both” statutes, which is “strongly
preferred.” (Even Zohar, supra, 61 Cal.4th at p. 841.)
B. The trial court did not have inherent authority
to consider the renewed motion.
As discussed above, there is no basis in the record to
conclude that the trial court “change[d] [its] ruling based on the
evidence originally submitted.” (Barthold, supra, 158
Cal.App.4th at p. 1314.) Thus, the exception to section 1008 set
forth in Le Francois—the sole exception recognized by the
Supreme Court (Even Zohar, supra, 61 Cal.4th at p. 836)—does
not apply.
10
Nevertheless, Centria contends that the restrictions set
forth in Le Francois are “immaterial” because “section 1008 does
not limit a court’s ability to entertain a renewed motion when the
original motion was never decided on the merits.” Centria relies
on Farber v. Bay View Terrace Homeowners Assn. (2006) 141
Cal.App.4th l007 (Farber) for this proposition. The trial court,
also relying on Farber, similarly asserted that “it has inherent
discretion to consider a renewed motion, without requiring new
facts or circumstances, where the initial motion was not
considered on the merits but denied on curable grounds.”
However, by its own reasoning, Farber does not establish
an independent exception to section 1008. In Farber, the plaintiff
argued that the trial court improperly awarded fees where it
initially denied the defendant’s motion and its second motion “did
not state sufficient grounds to permit renewal of the failed effort”
under section 1008. (Farber, supra, 141 Cal.App.4th at p. 1014.)
The trial court had denied the first fee motion “ ‘without
prejudice on the grounds that Moving Party did not supply the
court with sufficient information to determine whether the fees
were reasonable and necessary.’ ” (Ibid.) The Court of Appeal
explained that, in Le Francois, the Supreme Court held “that . . .
section 1008 prohibits a party from filing repetitive motions for
the same relief, but a court may, on its own motion, reconsider a
prior interim ruling it believes to be mistaken.” (Farber, at p.
1015.) When a court denies a motion without prejudice, as the
trial court did in Farber, it “impliedly invites the moving party to
renew the motion at a later date, when he can correct the
deficiency that led to the denial.” (Ibid.) The trial court’s
reconsideration was “essentially on its own motion,” and thus
11
was exempt from the requirements of section 1008 under Le
Francois. (Ibid.)
On appeal, the parties dispute whether the court’s original
ruling was with or without prejudice and whether it was made
solely on procedural grounds. However, in determining whether
the trial court’s order was consistent with Le Francois, the
pertinent inquiry is whether the trial court somehow “indicated it
wanted to reconsider” the issue or “impliedly invite[d] the moving
party to renew the motion at a later date.” (Farber, supra, 141
Cal.App.4th at p. 1015.)
The record here does not support that the trial court
invited Centria to resubmit its motion. The trial court rejected
Centria’s request for a continuance of the hearing to allow
Centria to properly authenticate the evidence. When Centria’s
attorney stated that he understood the court’s order to be without
prejudice, the trial court stated: “It’s not without prejudice. It’s
my ruling.” The trial court’s order on the original motion was
silent as to the order’s effect and did not encourage Centria to
refile. Thus, there was no statement here comparable to the
unambiguous statement in Farber that the trial court’s order was
without prejudice. (Farber, supra, 141 Cal.App.4th at p. 1014.)
To conclude that the court impliedly invited Centria to renew its
motion in this case would render section 1008 a nullity.
The trial court therefore erred when it concluded that
compliance with section 1008 was not required under Farber.3
3 Centria argues that, by granting the renewed motion, the
trial court was essentially reconsidering and granting the
continuance that it had initially denied, and thus acted on its
own motion. Even accepting that the trial court reconsidered its
12
C. Centria’s motion was not based on new or
different facts as required by section 1008.
The trial court also concluded that Centria’s renewed
motion satisfied the requirements of section 1008, subdivision (b).
Section 1008 requires a party renewing a motion to raise “new or
different facts, circumstances, or law.” (§ 1008, subd. (b).) Case
law has imposed the additional requirement that the party filing
the renewed motion provide a satisfactory explanation for not
having produced the new facts at an earlier time. (See Baldwin
v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198–1199.)
A trial court’s ruling on a motion under section 1008 is reviewed
for abuse of discretion. (New York Times Co. v. Superior Court
(2005) 135 Cal.App.4th 206, 212.)
R&J argues that none of the facts on which the trial court
relied on reconsideration were “new or different” for purposes of
section 1008, subdivision (b) because they were known to Centria
at the time of its original motion. R&J further asserts that there
was no satisfactory explanation for Centria’s failure to present
these facts with its original motion. I agree.
Courts have concluded that “[f]acts of which a party
seeking reconsideration was aware at the time of the original
ruling are not ‘new or different facts,’ as would support a trial
court’s grant of reconsideration” under section 1008. (People v.
denial of the continuance, it simultaneously granted Centria’s
renewed motion to dismiss based on evidence that Centria
submitted to the trial court before the trial court ever indicated
that it was reconsidering the denial of the continuance. In other
words, the trial court did not “invite” Centria to submit the
evidence on which the trial court relied in granting the motion to
dismiss until after that evidence was already before it.
13
Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 974;
accord, In re Marriage of Herr, supra, 174 Cal.App.4th at p. 1468
[“facts of which the party seeking reconsideration was aware at
the time of the original ruling are not ‘new or different’ ”]; Morris
v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1468 [motion for
reconsideration was properly denied where it was based on
evidence that “could have been presented with the original
motion”].) Courts have similarly rejected the argument that law
not previously presented but available at the time of the original
motion is new or different for purposes of section 1008. (See
California Correctional Peace Officers Assn. v. Virga (2010) 181
Cal.App.4th 30, 47 [moving party has “responsibility to advance
all correct legal theories . . . in their original motion, so as not to
burden the trial court with repeated motions for the same relief”];
accord, Baldwin v. Home Sav. of America, supra, 59 Cal.App.4th
at pp. 1196–1197 [newly presented decision was insufficient to
support reconsideration because it “issued in 1994 and could
therefore have been provided the trial court prior to its initial
ruling”].)
Centria does not identify any law to the contrary, but
instead argues that “[t]here is no dispute that Centria presented
new or different facts or circumstances.” R&J’s opening brief
contains no such concession; rather, R&J argues that the
evidence was known to Centria at the time of the original motion
and thus was not “new or different” under section 1008. I agree.
At the time of the original motion, Centria was or should have
been aware of the 2005 dealer agreement, the 2014 dealer
agreement, and the 2014 purchase acknowledgments, yet it only
submitted the 2005 dealer agreement without proper
authentication. The circumstances here are therefore
14
comparable to those present in New York Times Co. v. Superior
Court, supra, 135 Cal.App.4th 206, in which Division Four of this
District held that the trial court had abused its discretion in
granting a motion for reconsideration of the court’s order on
summary judgment where the evidence was available to the
moving party “throughout the discovery process and was easily
obtainable.” (Id. at p. 213.)
Thus, the trial court abused its discretion in concluding
that evidence undisputedly within Centria’s possession at the
time of the original motion was new or different as required by
section 1008, subdivision (b).
Although I need proceed no further, Centria also failed to
provide an adequate explanation for its failure to provide the
additional evidence sooner. A party’s belief that evidence
obtainable at the time of the original motion was not relevant is
not a satisfactory explanation. (See New York Times Co. v.
Superior Court, supra, 135 Cal.App.4th at p. 213; accord, In re
Marriage of Burgard (1999) 72 Cal.App.4th 74, 81 [claim that
party seeking reconsideration “did not understand the import” of
evidence in her possession was “not a satisfactory explanation for
her failure to submit the evidence or law earlier”]; Foothills
Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 692,
fn. 6 [defendant’s belief that evidence was not necessary at time
of first hearing was a “patently insufficient” explanation for
failure to present it sooner], disapproved of on another ground by
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 687 [rejecting
as inadequate counsel’s explanation that “ ‘important facts and
evidence’ ” were not presented earlier “ ‘[d]ue to an inadvertent
oversight’ ”].)
15
The trial court credited that Centria was prejudiced by the
limited time it was given to reply and found that “the evidence
submitted suggests that [Centria] did not anticipate [R&J]’s
objection to the validity and existence of the 2005 dealer
agreement.” However, the 2005 dealer agreement was central to
Centria’s forum non conveniens argument and Centria therefore
had every reason to ensure that it was admissible in the first
instance. There is no basis in the record to conclude that Centria
could not have properly authenticated the 2005 dealer agreement
in the five weeks between when R&J served the amended
complaint and its response was due. The trial court did not hold
Centria to the “strict requirement of diligence” necessary “to
show a satisfactory explanation for failing to provide the evidence
earlier.” (Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 690.)
Centria also argues that it was unable to discern the
agreements underlying R&J’s claim until its opposition to the
renewed motion, in which R&J stated that its cause of action
“stemmed from its purchase order in 2014 and not from a 2005 or
2014 dealer agreement.” However, the FAC alleged that R&J
issued a purchase order to ASI in April 2014, that ASI and
Centria “entered into a written contract in connection with
[R&J’s] aforementioned purchase order,” and that this agreement
was “made for [R&J’s] benefit.” Similarly, R&J’s opposition to
the initial motion stated that “R&J alleged that Centria and ASI
entered into an agreement in 2014, in which Centria would
manufacture and coat specific materials for installation for a
public works project at the Port of Long Beach for the benefit of
R&J” and that “Centria’s agreement to fabricate the materials
and provide the warranties, as required by the project’s
specifications, would not have materialized without R&J’s
16
purchase order for the same.” Thus, R&J alleged and argued
from the outset that the agreement at issue was a contract
between ASI and Centria that arose out of R&J’s purchase order
in 2014. (Cf. New York Times Co. v. Superior Court, supra, 135
Cal.App.4th at p. 214 [court abused its discretion in granting
reconsideration motion because moving party gave no
satisfactory explanation for its failure to present evidence sooner
where “[i]t should have been apparent . . . that [the issue] would
play a central role in the case”].)
Because section 1008 is “expressly jurisdictional” in nature
(Even Zohar, supra, 61 Cal.4th at p. 840), the court’s error was
not merely procedural. (See In re Marriage of Kent (2019) 35
Cal.App.5th 487, 496 [court’s consideration of request “was an act
in excess of the California court’s jurisdiction—i.e., not merely a
procedural error, but a violation of a clear restriction or
limitation on the court’s power to act” and was reversible without
showing of prejudicial error].) I would therefore vacate the
judgment of dismissal and reverse the order granting the
renewed motion. (See New York Times Co. v. Superior Court,
supra, 135 Cal.App.4th at pp. 215–216 [directing trial court to
vacate order granting motion for reconsideration and
corresponding denial of motion for summary judgment where
“trial court abused its discretion in granting the motion for
reconsideration”]; Pazderka v. Caballeros Dimas Alang, Inc.
(1998) 62 Cal.App.4th 658, 670–672 [reversing trial court’s order
where it abused its discretion in granting relief under section
1008]; Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 691
[reversing judgment where trial court “lacked jurisdiction to
17
reconsider the grant of summary judgment, enter a new order
and proceed with trial”].)
CHANEY, J.
18