Filed 4/16/19; Certified for Publication 5/13/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
           SECOND APPELLATE DISTRICT
                  DIVISION SEVEN

GLOBAL FINANCIAL                                           B291814
DISTRIBUTORS et al.,
                                                           (Los Angeles County
        Petitioners,                                       Super. Ct. No. BC672524)

        v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

        Respondent;

ROSEMARY PERERA, individually
and as Trustee, etc., et al.,

        Real Parties in Interest.


      ORIGINAL PROCEEDINGS in mandate. Teresa A.
Beaudet, Judge. Petition granted.
      Manning & Kass Ellrod, Ramirez, Trester, James E.
Gibbons and Steven J. Renick for Petitioners.
      No appearance for Respondent.
      Blakeman Law and Benjamin Blakeman for Real Parties in
Interest.
                        INTRODUCTION

       This proceeding arises out of tension between two statutes
governing the procedures for making a motion to stay or dismiss
an action on the ground of inconvenient forum. Code of Civil
Procedure section 418.10, subdivision (a), 1 provides that a
defendant may file such a motion “on or before the last day of his
or her time to plead,” and section 418.10, subdivision (e), provides
that a defendant may also file such a motion “simultaneously”
with an answer, demurrer, or motion to strike. Subdivision (e)(3)
of that statute further provides that “[f]ailure to make a motion
under this section at the time of filing a demurrer or motion to
strike constitutes a waiver of the issue[ ] of . . . inconvenient
forum.”
       Section 410.30, subdivision (a), provides that a defendant
may file a motion to stay or dismiss an action if, “in the interest
of substantial justice,” the action “should be heard” in another
state. Subdivision (b) of that statute states: “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.”
       The defendants in this case, after filing two demurrers,
filed a motion to stay or dismiss on the ground of inconvenient
forum pursuant to a forum selection clause providing for venue in
Georgia. The trial court concluded it was untimely under section
418.10, subdivision (e).
       We conclude it was timely under section 410.30. Section
418.10 applies before a defendant has made a general

1    Undesignated statutory references are to the Code of Civil
Procedure.




                                 2
appearance. It allows a defendant filing a motion to dismiss an
action for lack of personal jurisdiction to file simultaneously a
motion to stay or dismiss the action for inconvenient forum,
without having the latter motion constitute a general
appearance. Section 410.30 applies after a defendant has made a
general appearance. Because the defendants in this case filed
their motion to stay or dismiss on the ground of inconvenient
forum after they had appeared in the action by filing demurrers,
section 410.30 applied, and the motion was not untimely.
Therefore, we grant the defendants’ petition for writ of mandate
challenging the trial court’s order denying the motion as
untimely under section 418.10, subdivision (e).

      FACTUAL AND PROCEDURAL BACKGROUND

      On August 16, 2017 a group of clients sued their financial
advisors for making alleged misrepresentations in the sale of
“leveraged planning” life insurance policies. Apparently, the
investment was supposed to work something like this: A
company would apply for a loan to pay the premiums on a life
insurance investment vehicle without having to use the
company’s assets. The lender would use the proceeds of the loan
to pay the life insurance premiums and would receive the interest
from policies, while the insured would take a tax deduction for
the interest. Over time, the policy would “generate sufficient
cash values to pay off the loan and retain significant amounts of
cash which could be used to provide income without the payment
of any premiums by the policy owner.” The clients alleged that in
this case the interest turned out to be nondeductible, interest
rates rose by almost 2 percent when the credit rating for the




                                3
insurance company was downgraded, and the policies did not
perform well enough to defray other costs, which created a risk
the policies would not be able to pay off the loan. The clients
alleged that, based on the investment’s poor performance and
financial advisors’ fraud, they had to surrender the insurance
policies and sustained financial losses.
       The loan agreement underlying the transaction included a
forum selection clause stating that parties to the agreement
submitted to “the exclusive jurisdiction” of the state or federal
courts in Georgia. The loan agreement also stated that the
parties to the agreement waived “NOW OR HEREAFTER” any
objection “TO THE LAYING OF VENUE” in Georgia and the
parties’ right to argue Georgia was an inconvenient forum.
       On October 20, 2017 three of the defendants, Global
Financial Distributors, Inc., Allied Marketing Partners, and Alan
Harrington (collectively Global Financial), filed a demurrer to the
complaint and served written discovery. Before the court could
hear the demurrer, however, the clients agreed to amend the
complaint, and Global Financial withdrew its discovery requests.
On December 15, 2017 the clients filed an amended complaint
alleging various causes of action. On January 18, 2018 Global
Financial demurred again.
       On March 15, 2018 Global Financial filed a motion under
section 410.30, subdivision (b), to enforce the forum selection
clause in the loan agreement. The clients opposed the motion,
arguing, among other things, the motion to enforce the forum
selection clause was untimely under section 396b, subdivision (a),
which provides that a defendant may file a motion to transfer
venue of an action to a proper court in another county “at the
time he or she answers, demurs, or moves to strike, or, at his or




                                 4
her option, without answering, demurring, or moving to strike
and within the time otherwise allowed to respond to the
complaint.”
       At the May 2, 2018 hearing on the motion to enforce the
forum selection clause, the trial court provided the parties with a
tentative ruling rejecting the argument the motion was untimely
under section 396b because that statute governs transfer of an
action to another county under California venue rules, not
transfer of an action to another state pursuant to a forum
selection clause. The trial court suggested, however, Global
Financial waived its right to bring a motion to transfer based on
the forum selection clause under section 418.10, subdivision
(e)(3), which provides that failure to make a motion to transfer
for inconvenient forum at the time of filing a demurrer or a
motion to strike “constitutes a waiver of the issue[ ] of . . .
inconvenient forum . . . .” The trial court continued the hearing
to allow the parties to brief the issue.
       At the continued hearing on June 7, 2018, the trial court
denied Global Financial’s motion as untimely. The trial court
stated that, when Global Financial filed its “demurrer and failed
to also make a motion to stay or dismiss on the ground of
inconvenient forum under . . . section 418.10, subdivision (a)(2),”
Global Financial “waived that issue.” Although the court
acknowledged section 410.30, subdivision (b), allowed a party to
file a motion seeking to stay or dismiss an action after making a
general appearance, the court ruled that filing a demurrer did
not constitute a general appearance and that, where statutes
conflict, the more specific statue (section 418.10, according to the
court) controls over the more general statute.




                                 5
      Global Financial filed a petition for writ of mandate
seeking to compel the trial court to vacate its order denying the
motion as untimely and to consider the motion on the merits. We
issued an order to show cause.

                         DISCUSSION

       A.    The Doctrine of Forum Non Conveniens
       Forum non conveniens “is an equitable doctrine invoking
the discretionary power of a court to decline to exercise the
jurisdiction it has over 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; see Bushansky v. Soon-Shiong (2018) 23 Cal.App.5th 1000,
1005, fn. 2.) “‘Where a plaintiff brings suit in California, the
potential applicability of a contractual forum selection clause is
raised by the defendant through a motion to dismiss on grounds
of forum non conveniens.’ [Citation.] ‘A defendant may enforce a
forum-selection clause by bringing a motion pursuant to sections
410.30 and 418.10, the statutes governing forum non conveniens
motions, because they are the ones which generally authorize a
trial court to decline jurisdiction when unreasonably invoked and
provide a procedure for the motion.’” (Korman v. Princess Cruise
Lines, Ltd. (2019) 32 Cal.App.5th 206, 214; accord, Bushansky, at
p. 1005; Cal-State Business Products & Services, Inc. v. Ricoh
(1993) 12 Cal.App.4th 1666, 1680; see Global Packaging, Inc. v.
Superior Court (2011) 196 Cal.App.4th 1623, 1633
[“[e]nforcement of forum-selection clauses is an offshoot of the
principle of inconvenient forum”].)




                                6
       As described, there is a potential conflict in the statutes
governing the procedure for bringing a motion to stay or dismiss
an action for inconvenient forum. Section 418.10, subdivision
(e)(3), suggests that, if a party fails to make the motion “at the
time of filing a demurrer or motion to strike,” the party “waive[s]”
the issue. 2 Section 410.30, subdivision (b), however, suggests a
party can still make the motion after filing a demurrer or motion
to strike, both of which constitute a general appearance (see
section 1014; Goodwine v. Superior Court (1965) 63 Cal.2d 481,
484; Borsuk v. Appellate Division of Superior Court (2015) 242
Cal.App.4th 607, 615), because that statute states that the
“provisions of [s]ection 418.10 do not apply to a motion to stay or
dismiss the action by a defendant who has made a general
appearance.” How can a party bring a motion under section
410.30 to stay or dismiss an action on the ground of forum non
conveniens after making a general appearance if the moving
party waived the issue under section 418.10 by making a general
appearance? One of the statutes appears to authorize what the
other precludes.


2      “Although the statute phrases the ‘[f]ailure to make a
motion under this section at the time of filing a demurrer’ as a
‘waiver of the issue[ ] of . . . inconvenient forum’ (§ 418.10[, subd.]
(e)(3) . . .), a true ‘waiver’ requires more than a mere failure to
act, but rather an express relinquishment of a known right.
Accordingly, ‘the correct term is “forfeiture” rather than “waiver,”
because the former term refers to a failure to object or to invoke a
right, whereas the latter term conveys an express relinquishment
of a right or privilege.’” (Laboratory Specialists Internat., Inc. v.
Shimadzu Scientific Instruments, Inc. (2017) 17 Cal.App.5th 755,
761.)




                                  7
       B.    The Two Statutes Are Reconcilable
       “When construing the interaction of two potentially
conflicting statutes, we strive to effectuate the purpose of each by
harmonizing them, if possible, in a way that allows both to be
given effect.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th
970, 986; see Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627,
634 [“[w]hen possible, courts seek to harmonize inconsistent
statutes, construing them together to give effect to all of their
provisions”]; Manavian v. Department of Justice (2018) 28
Cal.App.5th 1127, 1137-1138 [“‘[i]nsofar as it is possible to do so,
seemingly conflicting or inconsistent statutes will be harmonized
so as to give effect to each’”]; People v. Warren (2018) 24
Cal.App.5th 899, 908 [“[w]hen two statutes regarding the same
subject matter appear to conflict, our task is to harmonize the
statutes”].) To the extent we can, we construe the two statutes
“‘with reference to each other and seek to harmonize them in
such a way that neither becomes surplusage.’” (Big Oak Flat-
Groveland Unified School Dist. v. Superior Court (2018) 21
Cal.App.5th 403, 423.) 3
      The court in Britton v. Dallas Airmotive, Inc. (2007) 153
Cal.App.4th 127 (Britton) interpreted section 410.30 and section
418.10 to resolve the conflict. The plaintiffs in that case filed an
action in California following a helicopter crash in Idaho. After
one of the defendants unsuccessfully moved to stay or dismiss the


3
      We review the trial court’s interpretation of the statutes
de novo. (California Building Industry Assn. v. State Water
Resources Control Bd. (2018) 4 Cal.5th 1032, 1041; see
Compulink Management Center, Inc. v. St. Paul Fire & Marine
Ins. Co. (2008) 169 Cal.App.4th 289, 295.)




                                 8
action for inconvenient forum, other defendants renewed the
motion a year later following remand from federal court. The
trial court granted the motion under section 410.30. (Britton,
at pp. 131, 132, fn. 2.) The plaintiffs argued that under section
418.10, subdivision (e)(3), the defendants had waived the right to
file the forum non conveniens motion because they did not file the
motion within the time to file their initial responsive pleadings.
(Britton, at pp. 132-133.)
       In rejecting this argument, the court stated: “Under
subdivision (b) [of section 410.30], a defendant who has generally
appeared may make a forum non conveniens motion at any time,
not only on or before the last day to plead.” (Britton, supra, 153
Cal.App.4th at p. 133.) The court explained that, if “forum non
conveniens motions may only be brought under section 418.10,
then the separate authorization of such motions in section 410.30
is superfluous. [The plaintiffs’] construction renders section
410.30 ‘“redundant and a nullity, thereby violating one of the
most elementary principles of statutory construction.’”” (Britton,
at p. 134.) The court in Britton held: “Read together, [section
418.10 and section 410.30] provide that where a defendant has
not appeared, section 418.10 applies and specifies the procedure
for bringing a forum non conveniens motion. Section 410.30
applies after a defendant has appeared. So understood, section
418.10 provides special procedures for pre-answer forum non
conveniens motions, but such motions are not precluded after a
defendant has appeared. This is a reasonable rule because it
may be necessary to conduct discovery to develop the factual
underpinnings of a forum non conveniens motion.” (Britton, at
pp. 134-135, fns. omitted.) Thus, “[u]nder [section 410.30,]
subdivision (b), a defendant who has generally appeared may




                                9
make a forum non conveniens motion at any time, not only on or
before the last day to plead.” (Britton, at p. 133.)
       This interpretation is consistent with the statutory
language. Section 418.10, subdivision (e)(3), states that a
defendant’s failure to make one of three specified motions (to
quash service of summons for lack of personal jurisdiction, to stay
or dismiss the action for inconvenient forum, or to dismiss for
delay in prosecution) “under this section” at the time the
defendant files a demurrer or motion to strike waives these
“issues.” A motion “under this section” is a motion filed and
served “on or before the last day of [the defendant’s] time to
plead . . . .” (§ 418.10, subd. (a).) For a defendant that has made
a general appearance, the “time to plead” has expired, and a
motion to stay or dismiss on the ground of inconvenient forum at
that point is not “under” section 418.10.
       Limiting the application of the waiver provision of section
418.10, subdivision (e)(3), to defendants that have not yet made a
general appearance is also consistent with another provision of
section 418.10. (See Gutierrez v. Carmax Auto Superstores
California (2018) 19 Cal.App.5th 1234, 1250 [“[a]mbiguous
statutory language is construed in context—that is, it must be
read in conjunction with the other words of the section and in
light of the statutory scheme as a whole”]; City of Petaluma v.
Cohen (2015) 238 Cal.App.4th 1430, 1440 [“[i]n interpreting
different provisions of a statute, ‘we consider portions of a statute
in the context of the entire statute and the statutory scheme of
which it is a part’”].) Section 418.10, subdivision (e)(3), includes a
motion to dismiss under section 583.310 for failure to bring a case
to trial within five years as one of the motions a party may waive
the right to bring by failing to make it at the time of filing a




                                 10
demurrer. (See § 418.10, subd. (a)(3).) But a defendant must be
able to file such a motion long after the defendant has filed (or
failed to file) a demurrer. Just as it “makes little sense” that a
defendant could forever “waive” the right to move to dismiss for
delay in prosecution by failing to make such a motion when the
defendant filed its initial responsive pleading (Finley & McGuire,
California Summary Judgment and Related Termination Motions
(2018) § 6:84, pp. 6-86 through 6-87), it is not reasonable to
interpret sections 410.30 and 418.10 to preclude a defendant from
moving to stay or dismiss an action for inconvenient forum if the
defendant did not make such a motion “at the time” it filed a
demurrer or motion to strike.
       The legislative history of sections 418.10 and 410.30
supports the Britton court’s interpretation that the former
statute applies before a defendant has appeared and the latter
applies after a defendant has appeared. (See Turner v.
Association of American Medical Colleges (2011) 193 Cal.App.4th
1047, 1064 [“[b]ecause the ultimate goal is to effectuate the
Legislature’s intent [citation], courts should consider whether
any legislative history provides insight into the legislative intent
as to which statute prevails”]; People v. Robinson (2012) 208
Cal.App.4th 232, 258 [same]; see also Sturm v. Moyer (2019) 32
Cal.App.5th 299, 310 [where “the statutory language does not
conclusively resolve the issue,” we “must look to the legislative
history to see if it discloses the legislative intent”].) Section
418.10, subdivision (e)(3), postdates section 410.30, subdivision
(b), and there is no indication in the legislative history that the
Legislature intended section 418.10, subdivision (e)(3), to repeal
section 410.30, subdivision (b), or that the Legislature even
considered section 410.30, subdivision (b), when it enacted




                                11
section 418.10, subdivision (e)(3). (See Big Oak Flat-Groveland
Unified School Dist. v. Superior Court, supra, 21 Cal.App.5th at
p. 423 [“‘[t]he law shuns repeals by implication,’” and
“‘[g]enerally, we will presume that the enactment of a statute
does not impliedly repeal existing statutes’”].) Instead, the
legislative history shows that the Legislature enacted section
418.10, subdivision (e)(3), to address a problem that had nothing
to do with section 410.30, subdivision (b).
       The Legislature codified the doctrine of forum
non conveniens in 1969 by enacting section 410.30. (Hahn v.
Diaz-Barba (2011) 194 Cal.App.4th 1177, 1186; see Chong v.
Superior Court (1997) 58 Cal.App.4th 1032, 1036.) At the same
time, the Legislature enacted section 418.10 “to permit a
defendant specially to challenge the court’s personal jurisdiction
without waiving his right to defend on the merits by allowing a
default to be entered against him while the jurisdictional issue is
being determined.” (In re Marriage of Merideth (1982) 129
Cal.App.3d 356, 363; see Sen. Com. on Judiciary, Analysis of Sen.
Bill No. 503 (1969 Reg. Sess.), p. 3.) Section 418.10 permits a
defendant challenging jurisdiction “to object on inconvenient
forum grounds” if the defendant’s “challenge to jurisdiction
should be denied.” (Judicial Council of Cal., com., reprinted at
West’s Ann. Code Civ. Proc. (2003 ed.) foll. § 418.10.)
       In 1972 the Legislature amended section 410.30 to add
subdivision (b). The Legislature enacted the new subdivision, as
part of Senate Bill No. 573,4 for a specific reason: “Subdivision


4      We grant Global Financial’s request to take judicial notice
of the legislative history of section 418.10. We also take judicial
notice of the legislative history materials concerning section




                                 12
(a) of [section] 418.10, relating to special appearances, provides
that the inconvenient forum motion may be made within the time
to plead to the complaint, but no statutory provision either
permits or prohibits later motions. This lack of statutory
direction has resulted in differing views at the trial court level.
To correct this confusion, [the new legislation] will make it clear
that the inconvenient forum motion may be made after the time
for answering since in some instances the factual basis for the
motion will not become known until after extensive investigation
or discovery.” (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 573 (1972 Reg. Sess.) p. 2.) The Chairman of the Assembly
Committee on Judiciary presciently commented: “Would it not be
clearer to just state that notwithstanding [the] provision of
[section] 418.10 a defendant may make a motion to dismiss an
action on the grounds of inconvenient forum at any time[?]”
(Assem. Com. on Judiciary, com. on Sen. Bill No. 573 (1972 Reg.
Sess.) July 3, 1972, p. 1.)
       In 2002 the Legislature amended section 418.10 to add
subdivision (e) to make clear that a defendant can file one of the
motions listed in subdivision (a) simultaneously with an answer,
demurrer, or motion to strike without making a general
appearance. (See Legis. Counsel’s Dig., Sen. Bill. No. 1325 (2001-
2002 Reg. Sess.).) The original version of the amendment limited
the waiver provision in subdivision (e)(3) to jurisdictional issues.
It stated: “Failure to move to quash service of summons at the


410.30. (Evid. Code, § 452, subd. (c); see City of San Diego v.
Shapiro (2014) 228 Cal.App.4th 756, 776, fn. 17 [“appellate court
may take judicial notice of legislative history materials on its own
motion”].)




                                13
time of filing a demurrer or motion to strike constitutes a waiver
of the issues of lack of personal jurisdiction, inadequacy of
process, or inadequacy of service of process.” The Legislature,
however, expanded the scope of the waiver provision to include
two additional motions, “motions to stay or dismiss an action on
the ground of inconvenient forum and motions to dismiss for
delay in prosecution,” that the Senate Judiciary Committee
believed, incorrectly, constituted special appearances. (Sen. Com.
on Judiciary, Analysis of Sen. Bill No. 1325 (2001–2002 Reg.
Sess.) as introduced Jan. 29, 2002, p. 5; see Air Machine Com
SRL v. Superior Court (2010) 186 Cal.App.4th 414, 424 [“The
original version of Senate Bill No. 1325 was limited to a motion to
quash service of summons. To reduce confusion, the Senate
Judiciary Committee recommended expanding Senate Bill No.
1325 to include other ‘traditional’ types of ‘special appearances’
that are set forth in subsection (a) of section 418.10, including
motions to stay or dismiss an action on the ground of
inconvenient forum and motions to dismiss for delay in
prosecution.”].)
       Motions to stay or dismiss for inconvenient forum or for
delay in prosecution, however, are not jurisdictional challenges
and do not constitute special appearances. (See Stangvik v.
Shiley Inc., supra, 54 Cal.3d at p. 751 [motion to stay or dismiss
for forum non conveniens is not a challenge to jurisdiction but a
request for the court to decline to exercise jurisdiction it has];
Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th
114, 126 [“a motion to dismiss on ground of inconvenient forum
reflects a general appearance because it ‘concedes jurisdiction’
and ‘asks the court to decline to exercise the jurisdiction it
constitutionally has’”]; 3 Witkin, Cal. Procedure (5th ed. 2008)




                                14
Jurisdiction, § 227, p. 834 [a “motion to stay or dismiss the action
on the ground of inconvenient forum [citation], although not a
challenge to jurisdiction, is a request that jurisdiction be
declined”].) But the Legislature’s misclassification of these two
motions as special appearances further supports the Britton
court’s interpretation. The history of the amendment shows the
Legislature intended the waiver provision of section 418.10,
subdivision (e)(3), to apply only to jurisdictional issues; the
Legislature merely misunderstood which motions raised
jurisdictional issues.
       The procedural differences between sections 410.30 and
418.10 also support the Britton court’s interpretation. Section
410.30, which applies after the defendant has made a general
appearance, does not give the defendant the procedural benefits
of section 418.10, such as protection against the entry of default
and an extension of time in which to plead. But a defendant that
has appeared and is moving to stay or dismiss based on an
inconvenient forum usually does not need those protections. As
Witkin’s treatise summarizes this difference: “After a defendant
has appeared, [section] 410.30 applies. [Section] 418.10 provides
special procedures for preanswer forum non conveniens motions,
but such motions are not precluded after a defendant has
appeared. [Citation.] Thus, under [section] 410.30, a defendant
who has appeared (a) may make the motion at any time, rather
than before the last day to plead ([§] 418.10[, subd.] (a)); (b) does
not have the special protection against a default judgment
([§] 418.10[, subd.] (d)); and (c) does not have the remedy of
mandamus to review an order of denial ([§] 418.10[, subd.] (c)).”
(2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 380,
p. 1018.)




                                 15
       Finally, there are sound practical reasons for allowing a
defendant to file a motion to stay or dismiss an action based on
forum non conveniens after the party has made a general
appearance by, for example, filing a demurrer. At the outset of
the litigation, the parties may not know the location of the
witnesses and evidence. (See Global Packaging, Inc. v. Superior
Court, supra, 196 Cal.App.4th at p. 1633 [the “main concerns” of
inconvenient forum are “the location where witnesses or
documents can be found, crowded local courts, keeping down
costs, the interests of each prospective forum in adjudicating the
controversy”]; Animal Film, LLC v. D.E.J. Productions, Inc.
(2011) 193 Cal.App.4th 466, 473 [forum non conveniens factors
include “‘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’”].)
Even where, as here, the forum selection clause is mandatory
rather than permissive, so that the court does not consider the
traditional public and private inconvenient forum factors, 5 the

5       “A forum selection clause is either mandatory or
permissive. A clause is mandatory if it requires the parties to
litigate their disputes exclusively in the designated forum, and it
is permissive if it merely requires the parties to submit to
jurisdiction in the designated forum. A permissive forum
selection clause is subject to traditional forum non conveniens
analysis to determine whether the designated forum is a suitable
alternative forum and whether the balancing of various private
and public interest factors favors retaining the action in
California. These traditional forum non conveniens factors are
not considered when a mandatory forum selection clause exists.”
(Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147,
fn. 2.)




                                16
court must still determine whether enforcement of the clause
would be unreasonable, whether the selected forum has a logical
connection to the parties or their transaction, and whether there
is a rational basis for the selected forum. (Korman v. Princess
Cruise Lines, Ltd., supra, 32 Cal.App.5th at pp. 215-216; Verdugo
v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147.) The
parties may need to take discovery on these issues before they
are able to file a motion to stay or dismiss based on inconvenient
forum. (See Williamson v. Mazda Motor of America, Inc. (2012)
212 Cal.App.4th 449, 454; Morris v. AGFA Corp. (2006) 144
Cal.App.4th 1452, 1460-1462.)

      C.       The Trial Court’s Contrary Interpretation Is
               Erroneous
        The trial court ruled section 418.10 applied to Global
Financial’s motion by mistakenly interpreting Britton as
implying “that general appearances (for the purposes of applying
. . . section 410.30, subdivision (b)) do not include the filing of a
demurrer.” Filing a demurrer, however, is a general appearance,
and the court in Britton did not suggest otherwise. (§ 1014 [“[a]
defendant appears in an action when the defendant . . . demurs”];
Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162
Cal.App.4th 1014, 1028 [“[s]ection 1014 lists several acts that
constitute an appearance by a defendant,” which includes “filing
[a] demurrer”].) Under section 410.30 and Britton, a defendant
can file a forum non conveniens motion after the defendant has
answered, demurred, or otherwise generally appeared. (Britton,
supra, 153 Cal.App.4th at p. 134.)
        This is not to say that a party, despite the court’s expansive
language in Britton, may move to enforce a forum selection clause




                                 17
“at any time” (Britton, supra, 153 Cal.App.4th at p. 133), no
matter how long, after making a general appearance. To the
contrary, a party must bring such a motion to enforce a forum
selection clause within a reasonable time. (See Trident Labs, Inc.
v. Merrill Lynch Commercial Finance Corp. (2011) 200
Cal.App.4th 147, 155 [although “[s]ection 410.30 does not say
that the motion may be brought ‘at any time,’” where “no limits
are stated, a reasonableness standard is necessarily inferred”].
Here, however, the trial court erred in ruling Global Financial’s
motion to enforce the forum selection clause was untimely solely
because Global Financial filed the motion after making a general
appearance.

                         DISPOSITION

      Let a peremptory writ of mandate issue directing the trial
court to vacate its June 7, 2018 order and to consider Global
Financial’s motion to enforce the forum selection clause on its
merits. Petitioners are to recover their costs in this proceeding.




             SEGAL, J.

We concur:




             PERLUSS, P. J.                      ZELON, J.




                                18
Filed 5/13/19
                    CERTIFIED FOR PUBLICATION

  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                           DIVISION SEVEN



 GLOBAL FINANCIAL                            B291814
 DISTRIBUTORS et al.,
                                             (Los Angeles County
         Petitioners,                        Super. Ct. No. BC672524)

         v.

 THE SUPERIOR COURT OF LOS                ORDER CERTIFYING
 ANGELES COUNTY,                          OPINION FOR
                                          PUBLICATION
         Respondent;                     (NO CHANGE IN
                                         JUDGMENT)
 ROSEMARY PERERA, individually
 and as Trustee, etc., et al.,

         Real Parties in Interest.

 THE COURT:
        The opinion in this case filed April 16, 2019 was not
 certified for publication. Because the opinion meets the
 standards for publication specified in California Rules of Court,




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rule 8.1105(c), the petitioner’s request for publication under
California Rules of Court, rule 8.1120(a), is granted.
      IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
      ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion be published in the Official Reports.




_______________________________________________________________
PERLUSS, P.J.           ZELON, J.                 SEGAL, J.




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