Almeida v. Olympusat CA2/1 ( 2021 )

Filed 9/27/21 Almeida v. Olympusat CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DINA ALMEIDA, et al., B303724
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV22597)
v.
OLYMPUSAT INC., et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Bowick, Judge. Affirmed.
Hadsell Stormer Renick & Dai, Dan Stormer, Barbara
Enloe Hadsell, Theresa Zhen, Brian Olney; Scott Wagner and
Associates and Lindsey Wagner for Plaintiffs and Appellants.
Lathrop GPM, Laura Reathaford and Jeffrey A. Richmond
for Defendants and Respondents.
_________________________
This case asks us to decide whether Florida or California is
the better place to hear dueling, related lawsuits under the
doctrine of forum non conveniens.
In April 2019, respondents Thomas Mohler (Mohler) and
Olympusat, Inc. (Olympusat) filed suit in Florida against their
former business partners, appellants Dina Almeida (Almeida)
and Tristan Leo Star Films, Inc. (Tristan Leo Star), alleging
violations of Florida law based upon trademark infringement and
unlawful “kickback” payments from content providers who
licensed material to Olympusat’s networks.
In June 2019, appellants countersued respondents in
California for, among other things, sexual harassment, sex
discrimination, and tortious interference with business
relationships.
Respondents moved to stay the California case under the
doctrine of forum non conveniens, arguing that the parties’
contract contained a forum selection clause mandating
adjudication of contractual disputes in Florida. The trial court
granted the motion and stayed the case while the parties pursued
their suit in Florida.
Although the contractual forum selection clause does not
dictate the outcome, there are many other private and public
interests that point toward the efficacy of Floridian jurisdiction in
the first instance. Not only did appellants consent to and
affirmatively avail themselves of the Florida courts, but the two
lawsuits are deeply factually and legally intertwined.
Under our limited standard of review, the trial court did
not abuse its discretion in staying the California matter until the
Florida case is resolved.
Accordingly, we affirm.
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FACTUAL BACKGROUND
Almeida is the sole owner and operator of Tristan Leo Star,
a film company providing production, procurement, licensure,
and distribution services.
In 2014, Tristan Leo Star contracted with Olympusat to
license film content for Olympusat’s stable of television networks.
The contract was renewed twice, once in 2016 and again in 2018.
Every iteration of the contract (the Agreement) contains a
substantially similar forum selection clause, which provides that
the parties “irrevocably consent” to jurisdiction of the Florida
courts to resolve all disputes related to the Agreement.
In the California case, Almeida alleged that after Tristan
Leo Star entered into the initial 2014 agreement, she was
sexually harassed by Mohler, Olympusat’s chief executive officer.
This harassment was compounded by workplace retaliation, up to
and including Olympusat’s unilateral termination of Tristan Leo
Star’s contract. Mohler allegedly demanded that Almeida become
an employee of Olympusat, threatening to financially ruin
Tristan Leo Star if she did not comply. Almeida claimed to have
made multiple complaints about Mohler’s behavior to
Olympusat’s other executives, to no avail.
By early 2019, the relationship between the parties had
deteriorated. When Mohler again threatened her business in
February 2019, Almeida complained to Olympusat’s general
counsel. At the end of the month, Olympusat suspended its
contract with Tristan Leo Star.
PROCEDURAL BACKGROUND
On April 12, 2019, Olympusat sued appellants in Florida.
Olympusat alleged that, while under contract, appellants violated
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two Florida laws by obtaining illegal “kickback” payments from
content providers who licensed material to Olympusat’s
networks. It also alleged that appellants were infringing on an
Olympusat trademark.
Appellants moved to dismiss Olympusat’s lawsuit for
failure to state a claim. They also filed a countercomplaint
alleging breach of contract and seeking an injunction prohibiting
Olympusat from interfering with appellants’ clients.
On June 27, 2019, appellants filed this lawsuit in
California, alleging, inter alia, sexual harassment, retaliation,
gender violence, and intentional infliction of emotional distress
by respondents. They asked the court to void the Agreement and
enjoin respondents from further attempts to enforce the allegedly
unlawful non-compete clause.1
1 Appellants specific claims included: (1) four violations of
the California Fair Employment and Housing Act (Gov. Code,
§ 12940 et seq.) for sexual discrimination, sexual harassment,
retaliation, and failure to prevent discrimination and
harassment; (2) two violations of the Unruh Civil Rights Act (Civ.
Code, §§ 51, 51.9) for sexual discrimination and harassment;
(3) gender violence in violation of the Ralph Civil Rights Act of
1976 (Civ. Code, § 51.7) and section 52.4 of the Civil Code; (4)
sexual harassment and discrimination in violation of the Tom
Bane Civil Rights Act (Civ. Code, § 52.1); (5) both intentional and
negligent infliction of emotional distress; (6) negligent
supervision and general negligence; (7) battery; (8) unfair
competition; (9) civil conspiracy; (10) tortious interference with
business relationships and interference with prospective
economic relationships; (11) defamation; and (12) an unlawful
non-compete clause.
4
Respondents moved to stay the case, arguing that the
forum selection clause in the Agreement mandated resolution of
any disputes between the parties in Florida. The trial court
stayed the California litigation, determining that the forum
selection clause was mandatory.
Alternatively, putting aside the forum selection clause, the
trial court found that Florida was both a suitable alternative
forum and that a variety of interests favored conducting the
litigation in Florida. The court found that “the instant action is
intertwined with a pending Florida action with overlapping
issues and similar facts,” causing a “risk of conflicting decisions
and procedures if pending in different jurisdictions.”
Appellants timely appealed.
DISCUSSION
Under the equitable doctrine of forum non conveniens, a
trial court has discretion to stay or dismiss “a transitory cause of
action when it believes that the action may be more appropriately
and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54
Cal.3d 744, 751 (Stangvik); Code Civ. Proc., § 410.30, subd. (a).)
Forum selection clauses are typically honored unless
enforcement would be unreasonable. (Smith, Valentino & Smith,
Inc. v. Superior Court (1976) 17 Cal.3d 491, 496.) In deciding
reasonableness, courts consider a variety of factors concerning
the relationship of the parties, witnesses, and claims to the forum
state, and, in a contract case, whether the parties themselves
selected a particular forum. (Animal Film, LLC v. D.E.J.
Productions, Inc. (2011) 193 Cal.App.4th 466, 471 (Animal Film).)
In selecting an appropriate forum, the trial court must
determine whether the clause is mandatory or permissive.
(Animal Film, supra, 193 Cal.App.4th at p. 471.) Only if a forum
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selection clause is permissive will the court evaluate whether
other factors support moving the lawsuit to a different court.
(Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th
349, 358-360.)
A. The Contractual Forum Selection Clause
Appellants argue that the forum selection clause in the
Agreement is permissive because it does not require the parties
to settle their disputes in Florida.
“When, as here, no conflicting extrinsic evidence has been
presented, the interpretation of a forum selection clause is a legal
question that we review de novo.” (Animal Film, supra, 193
Cal.App.4th at p. 471.)
“ ‘To be mandatory, a clause must contain language that
clearly designates a forum as the exclusive one.’ [Citation.]”
(Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal.App.5th 206,
215.) A mandatory forum selection clause “ ‘ordinarily is “given
effect without any analysis of convenience; the only question is
whether enforcement of the clause would be unreasonable.” ’ ”
(Ibid., quoting Intershop v. Communications AG v. Superior Court
(2002) 104 Cal.App.4th 191, 196.) However, if a clause merely
memorializes a party’s consent to jurisdiction in a particular
forum and “ ‘does not expressly mandate litigation exclusively’ ”
in that forum, the clause is permissive. (Animal Film, supra, 193
Cal.App.4th at p. 471.)
The operative forum selection clause states that Tristan
Leo Star and Olympusat “irrevocably consent to the jurisdiction
of the courts of Florida and to the convenience of Palm Beach
County to decide all issues and disputes arising out of or related
to this Agreement or the relationship of the parties hereunder.”
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We begin by pointing out that this clause is similar to one
that this court has characterized as permissive. (See Animal
Film, supra, 193 Cal.App.4th at pp. 470, 471-472 [concluding a
forum selection clause was permissive where it stated that “ ‘the
parties hereto submit and consent to the jurisdiction of the courts
present in the state of Texas in any action brought to enforce (or
otherwise relating to) this Agreement”], bold & capitalization
omitted; see also Berg v. MTC Electronics Technologies Co.,
supra, 61 Cal.App.4th at p. 357 [same as to clause stating “ ‘[t]he
company . . . has expressly submitted to the jurisdiction of the
State of California and United States Federal courts sitting in
the City of Los Angeles, California, for the purpose of any suit,
action or proceedings arising out of this [agreement]’ ”].)
Although the phrase “irrevocably consent” lends some
credence to interpreting that clause as mandatory, the entire
clause read in context stops short of requiring the parties to
resolve their disputes in that forum. Significantly, the clause
here contains none of the “language of exclusivity” that other
courts have found to be mandatory. (See Korman v. Princess
Cruise Lines, Ltd., supra, 37 Cal.App.5th at p. 215 [“All claims or
disputes . . . shall be litigated before the United States District
Courts for the Central District of California in Los Angeles”];
Bushansky v. Soon-Shiong (2018) 23 Cal.App.5th 1000, 1011 [“ ‘to
the fullest extent permitted by law, the Court of Chancery of the
State of Delaware . . . shall be the sole and exclusive forum . . . for
any derivative action’ ” or proceeding]; Cal-State Business
Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666,
1672, fn. 4 [“ ‘[A]ny appropriate state or federal district court
located in the Borough of Manhattan, New York City, New York
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shall have exclusive jurisdiction over any case of controversy
arising under or in connection with this Agreement’ ”].)
Accordingly, the operative forum selection clause is
permissive, and is therefore considered as just one factor among
the many that are considered when analyzing a forum non
conveniens motion. (Animal Film, supra, 193 Cal.App.4th at
p. 472.)
B. Forum Non Conveniens
In evaluating a forum non conveniens motion, “a court
must first determine whether the alternate forum is a ‘suitable’
place for trial. If it is, the next step is to consider the private
interests of the litigants and the interests of the public in
retaining the action for trial in California.” (Stangvik, supra, 54
Cal.3d at p. 751; American Cemwood Corp. v. American Home
Assurance Co. (2001) 87 Cal.App.4th 431, 436.)
1. Suitability of the Alternative Forum
An alternative forum is considered suitable if it has
jurisdiction over the parties and no statute of limitations bars it
from hearing the merits. (Wang v. Fang (2021) 59 Cal.App.5th
907, 918.) The relative advantage of the alternative forum’s laws
to either party’s position is irrelevant. (Shiley Inc. v. Superior
Court (1992) 4 Cal.App.4th 126, 132 [“a forum is suitable where
an action ‘can be brought,’ although not necessarily won”].) We
exercise de novo review as to whether an alternative forum is
suitable. (Wang, supra, at p. 918.)
As the trial court appropriately recognized, appellants have
already submitted to jurisdiction in Florida, giving the state
jurisdiction over both parties. Further, appellants have not
identified any statute of limitations that could bar their lawsuit
8
from proceeding there.2 Florida is therefore a suitable forum for
appellants’ lawsuit.3
2 While appellants argue that their discrimination and
harassment claims might be “barred by the applicable statute of
limitations [for] filing a claim with the Florida Commission on
Human Relations,” they elsewhere concede that the Florida
statute requiring exhaustion of administrative remedies is
inapplicable. (Fla. Stat. Ann. § 760.10, subd. (1) (2015)
[providing discrimination protections only to employees], § 760.11
(2020) [a discrimination claim must be filed with the commission
within one year of the alleged violation].)
3 Appellants also claim it would be unfair to require
Almeida to litigate her statutory claims in Florida because many
of them are unavailable to independent contractors under Florida
law. While this may be true, the analysis under the suitability
prong focuses on whether a plaintiff has “ ‘ “no remedy at all” ’ ”
for her claims. (Wang v. Fang, supra, 59 Cal.App.5th at p. 917.)
This exception applies only in rare cases “ ‘ “such as where the
alternative forum is a foreign country whose courts are ruled by a
dictatorship, so that there is no independent judiciary or due
process of law.” ’ ” (Ibid., quoting Guimei v. General Electric Co.
(2009) 172 Cal.App.4th 689, 697.) It has never been applied in
disputes involving sister states and is plainly inapplicable here.
(Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 711 [in
determining suitability, “ ‘a court may not even consider the fact
that an alternative forum does not recognize a cause of action
which would be available to the plaintiff under California law’ ”];
see Investors Equity Life Holding Co. v. Schmidt (2011) 195
Cal.App.4th 1519, 1530 [concluding that the plaintiff’s loss of his
California statutory remedy did not render Hawaii an unsuitable
forum].)
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2. Whether Private and Public Interests Favor Staying
the California Litigation
The remaining question is whether the trial court properly
weighed the various private and public interests in staying the
California litigation in favor of Florida jurisdiction.
“The private interest factors are those that make trial and
the enforceability of the ensuing judgment expeditious and
relatively inexpensive, such as the ease of access to sources of
proof, the cost of obtaining attendance of witnesses, and the
availability of compulsory process for attendance of unwilling
witnesses.” (Stangvik, supra, 54 Cal.3d at p. 751.)
“The public interest factors include avoidance of
overburdening California courts, protecting potential jurors who
should not be called on to decide cases in which the local
community has little concern, and weighing the competing ties of
California and the alternate jurisdiction to the litigation.”
(Animal Film, supra, 193 Cal.App.4th at p. 473.)
The grant or denial of a forum non conveniens motion “is
within the trial court’s discretion, and substantial deference is
accorded its determination in this regard.” (Stangvik, supra, 54
Cal.3d at p. 751.) Accordingly, “[w]e ‘will only interfere with a
trial court’s exercise of discretion [regarding the balancing of
interests aspect of a forum non conveniens motion] where [we
find] that under all the evidence, viewed most favorably in
support of the trial court’s action, no judge could have reasonably
reached the challenged result.’ ” (Guimei v. General Electric Co.,
supra, 172 Cal.App.4th at p. 696, second bracketed insertion
added.)
Many factors weigh in favor of Floridian jurisdiction. We
start with the forum selection clause which the parties agreed
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would govern their contractual dispute. (Animal Film, supra,
193 Cal.App.4th at p. 472.) Moreover, by the time appellants had
filed their complaint in California, they had already been named
as defendants and served in a lawsuit filed by Olympusat in
Florida. They not only defended against Olympusat’s lawsuit,
but actively prosecuted a counterclaim. This undercuts any
argument that appellants will be burdened by litigating
additional issues in Florida.
As the trial court recognized, the Florida and California
suits are factually and legally intertwined. Olympusat’s
premature, unilateral termination of the Agreement plays a key
role in both lawsuits. In Florida, appellants argue that they are
owed damages as a result of the termination. In California,
appellants argue they are owed damages, in part, as a result of
the termination—which they allege was the culmination of
respondents’ discriminatory, harassing, retaliatory conduct.
Respondents’ Florida suit alleges that appellants received
unlawful “kickback” payments from third parties at respondents’
expense. Appellants incorporate these allegations into their
California suit, characterizing them as evidence of ongoing
retaliation against Almeida for her refusal to submit to Mohler’s
harassment. The circumstances surrounding the termination of
the Agreement and the frayed relationship between the parties,
as well as the veracity of respondents’ claims about appellants’
business practices, are central to both lawsuits.
As the trial court pointed out, appellants’ claims in
California for defamation, tortious interference with business
relationships, and interference with prospective economic
relationships all relate to their claims in their Florida countersuit
11
that Olympusat unlawfully interfered with Tristan Leo Star’s
clientele.
We note the inconsistency in appellants’ contention, on the
one hand, to void the Agreement in the California suit, whereas,
in the Florida case, they seek damages and injunctive relief based
upon a breach of that Agreement. The possibility of inconsistent
decisions if both lawsuits proceed is not hypothetical.
Appellants point out a number of factors that favor
jurisdiction in California: that Almeida is a California resident;
that Tristan Leo Star, a Florida corporation, conducted much of
its business in California;4 that most of Mohler’s alleged sexual
misconduct took place in California; that Almeida identified six
potential witnesses located in California; that Olympusat would
not be overly burdened by litigating in a forum where it
conducted a substantial part of its business; and California’s
pronounced interest in regulating sexual harassment and gender
violence in the entertainment industry.
We agree that these factors raise important issues.
However, the presence of countervailing factors does not
establish an abuse of discretion. The relative strength or
weakness of any particular factor is not fatal. Other relevant
factors may well warrant granting or denying a motion to dismiss
or stay on forum non conveniens grounds. (Stangvik, supra, 54
Cal.3d at p. 753 [“the private and public interest factors must be
4 Appellants also rely on Tristan Leo Star’s recent
registration as a foreign corporation doing business in California.
However, as the trial court noted, Tristan Leo Star did not so
register until after the start of this litigation, and in any event,
the company’s registration is minimally relevant to assessment of
the private and public interest factors.
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applied flexibly, without giving undue emphasis to any one
element”]; Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853,
860 [“the trial court retains a flexible power to consider and
weigh all factors relevant to determining which forum is the more
convenient”].)5
Based on its balancing of the numerous private and public
interest factors, we cannot say that the trial court abused its
considerable discretion in granting respondents’ forum non
conveniens motion to stay the California suit. (Hahn v. Diaz-
Barba (2011) 194 Cal.App.4th 1177, 1195 [under the abuse of
discretion standard, “[a]s long as there is a reasonable or even
fairly debatable justification for the ruling, we will not set it
aside”].)
We emphasize that the trial court did not transfer and
dismiss this suit, but rather ordered a stay of the California
matter while the Florida case proceeds. The stay provides some
protection, ensuring that appellants’ action will remain viable in
California in the event the action in Florida is rejected for any
reason (Wang v. Fang, supra, 59 Cal.App.5th at pp. 921-922), or if
5 Appellants argue the court erred in finding that
“Olympusat has no management, offices, assets, or facilities of
any kind in California and has no meaningful contacts with
California,” apparently in reliance on Mohler’s declaration. We
agree that the record shows Olympusat has at least two executive
officers (its senior vice president of Hispanic owned and operated
networks and its vice president of acquisitions) stationed in
California offices, and had registered its principal California
office at 3375 Barham Boulevard in Los Angeles. Given the trial
court’s numerous other findings, its erroneous reference to
respondents’ lack of contacts with California does not undermine
the result.
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there are unresolved issues once the Florida action concludes.
(Belnap Freight Lines, Inc. v. Petty (1975) 46 Cal.App.3d 159, 163
[noting that the plaintiff may pursue any undecided claims after
the selected forum has determined common issues].)
DISPOSITION
The order is affirmed. The parties shall each bear their
own costs on appeal.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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