Filed 9/17/14 Starbbucks v. Outdoor Lifestyle CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



STARBUCKS CORPORATION,                                              D064637

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00033844-
                                                                                    CU-BC-CTL)
OUTDOOR LIFESTYLE, INC.,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Randa

Trapp, Judge. Reversed.

         G&P Schick, Malcolm D. Schick and Tiffany A. LeMelle for Plaintiff and

Appellant.

         Law Offices of Robert Tauler and Robert Tauler for Defendant and Respondent.

         This action arises from a warranty claim that plaintiff Starbucks Corporation

(Starbucks) made against Outdoor Lifestyle, Inc. (Outdoor Lifestyle) based upon alleged

defects in chairs that Starbucks purchased from Outdoor Lifestyle. When Outdoor

Lifestyle rejected Starbuck's warranty claim, Starbucks filed an action in the Superior
Court of San Diego County. In response, Outdoor Lifestyle brought a motion to stay or

dismiss for forum non conveniens, based upon a forum selection clause in the warranty.

The court granted the motion.

       Starbucks appeals, asserting that the forum selection clause on its face only applies

to arbitration, not civil actions. We conclude that Starbuck's interpretation of the forum

selection clause is correct. Accordingly, we reverse.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Outdoor Lifestyle is a North Carolina-based furniture company that assembles and

distributes residential and commercial furniture to various places, including California.

Between September 2008 and early 2012, Starbucks purchased patio furniture from

Outdoor Lifestyle, including chairs, for the purpose of providing outdoor seating to

patrons of its stores located in Southern California. Outdoor Lifestyle expressly

warranted its patio furniture as long-lasting and free from defect.

       The express warranty specified the procedure whereby customers could submit

warranty claims to the company in the event of product failures. Following these

instructions is a forum selection clause which reads as follows:

          "Those purchasing furnishing from Outdoor Lifestyle, or obtaining
          services from the company, agree that should conditions arise where
          a situation needs to be redressed through arbitration, legal
          proceedings shall be pursued solely through the local courts of
          Gaston County, North Carolina."

       According to Starbucks, on about December 28, 2011, a Starbucks patron was

sitting in an Outdoor Lifestyle chair when it collapsed, causing injuries to the patron.

Starbucks's subsequent inspection of the failed chair and additional Outdoor Lifestyle

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furniture revealed the existence of a welding defect in each piece of furniture inspected.

Upon discovery of the defect, Starbucks removed all Outdoor Lifestyle furniture from its

stores.

          Starbucks submitted a warranty claim to Outdoor Lifestyle, which Outdoor Life

rejected. Thereafter, Starbucks filed a complaint against Outdoor Lifestyle in the

Superior Court of San Diego County, asserting causes of action for breach of warranty.

          Outdoor Lifestyle specially appeared on April 8, 2013, to file a motion to stay or

dismiss the action for forum non conveniens Outdoor Lifestyle argued that the forum

selection clause applied not only to arbitral matters, but civil actions as well. Starbucks

opposed the motion, arguing the plain meaning of the forum selection clause meant it

applied only to arbitration, not civil actions. Starbuck also argued that rules of grammar

limited its application to arbitration.

          The court granted the motion, and dismissed the action. In granting the motion,

the court stated: "Construing the warranty at issue here as a whole and construed to

effectuate the obvious intention, the court finds there is a forum selection clause in the

warranty provided to plaintiff Starbucks by Outdoor Lifestyle that contains language

showing the jurisdiction of this action is appropriate only in Gaston County, North

Carolina."

                                          DISCUSSION

                                  I. STANDARD OF REVIEW

          There is a split of authority as to the appropriate standard of review on a motion to

enforce a forum selection clause. Some courts have applied the abuse of discretion

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standard. (See Schlessinger v. Holland America (2004) 120 Cal.App.4th 552, 557;

America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 9; Bancomer, S.A. v.

Superior Court (1996) 44 Cal.App.4th 1450, 1457.) Others have applied the substantial

evidence standard of review. (Cal-State Business Products & Services, Inc. v. Ricoh

(1993) 12 Cal.App.4th 1666, 1680-1681; CQJ Original Products, Inc v. National Hockey

League Players' Assn. (1995) 39 Cal.App.4th 1347, 1354.) Starbucks asserts that

because the underlying facts of this case are undisputed, the standard of review is de

novo.

        We conclude that under any standard of review, the court erred in granting

Outdoor Life Style's motion to dismiss for forum non conveniens.

                                    II. DISCUSSION

        A. Law Governing Forum Selection Clauses

        Under California law, mandatory forum selection clauses such as the one at issue

in the present appeal are given effect unless they are deemed unfair or unreasonable.

(Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358.) A forum

selection clause is mandatory when it "contains clear language showing that jurisdiction

is appropriate in the designated forum and none other." (Id. at p. 360.) The burden of

proof for enforcement of a mandatory enforcement clause rests with the party opposing

the enforcement. (Cal-State Business Products & Services, Inc. v. Ricoh, supra, 12

Cal.App.4th at p. 1680.)




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       B. Analysis

       The definition of the term "arbitration" is "[s]ettling an issue with a third party to

avoid court." (Black's Law Dictionary Free Online Legal Dictionary (2d ed.)

http://www.thelawdictionary.org/arbitration-2/ (as of Sept. 15, 2014).) Thus, by

definition, arbitration is not a proceeding in court.

       It is true that the forum selection clause at issue here is not a model of clarity.

However, because Outdoor Lifestyle drafted the warranty, including the forum selection

clause, any uncertainty must be construed against it. (Civ. Code, § 1654; Victoria v.

Superior Court (1985) 40 Cal.3d 734, 739; Maggio v. Winward Capital Management Co.

(2000) 80 Cal.App.4th 1210, 1215.)

       Here we conclude, construing the forum selection clause in Starbuck's favor, it

applies only to arbitral matters, not civil actions such as this matter. If Outdoor Lifestyle

had intended it to apply to civil actions it could have easily omitted reference to the term

"arbitration" altogether so that the forum selection clause read "should conditions arise

where a situation needs to be redressed, legal proceedings shall be pursued solely through

the courts of Gaston County, North Carolina."

       Of course we must give a meaning to the phrase "legal proceedings." We interpret

that to merely be referring to where the arbitration will take place.

       Moreover, when a phrase is set off from the rest of the main sentence by two

commas, such as here, it should be read as a parenthetical phrase because "such a

grammatical structure 'indicates an intent to segregate th[e phrase] from the rest of the

sentence.'" (Dow v. Lassen Irrigation Co. (2013) 216 Cal.App.4th 766, 783 (Dow).)

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       In Dow, the Court of Appeal reviewed a trial court's ruling which concerned the

interpretation of a decree in the adjudication of water rights between Jay Dow and Lassen

Irrigation Company. The trial court held that the decree gave Lassen Irrigation Company

the right to divert water from a river for direct application to beneficial use. The Court of

Appeal held that the trial court incorrectly interpreted the decree with respect to the

reservoir owner's rights.

       At issue was the meaning of a contractual clause which utilized a parenthetical

phrase, as follows: "'Irrigation Company shall be entitled to divert, or store up to the

present capacity of its reservoirs, estimated at 31,500 acre-feet, from the natural flow of

Susan River.'" (Dow, supra, 216 Cal.App.4th at p. 783, italics added.)

       Lassen Irrigation Company argued that the contractual clause expressly gave it the

right to either divert water from the Susan River or store water from the river up to the

capacity of its reservoirs. Jay Dow argued that the provision should be construed as "'a

parenthetical phrase explaining the meaning of the word "divert,"'" and as such, the

clause meant that Lassen Irrigation Company could "divert, in other words, store up to

the present capacity of its reservoirs." (Dow, supra, 216 Cal.App.4th at p. 783.) The trial

court ruled in favor of Lassen Irrigation Company's interpretation, and Jay Dow

appealed.

       The Court of Appeal concluded that Lassen Irrigation Company's, and the trial

court's, interpretation of the clause "fails to account for the two commas that set off the

phrase 'or store up to the present capacity of its reservoirs, estimated at 31,500 acre-feet'

from the remainder of the sentence." (Dow, supra, 216 Cal.App.4th at p. 783.) As the

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Court of Appeal explained: "Had the drafters of the decree intended the meaning that the

Irrigation Company advances (and that the trial court found), there would have been no

need for the comma before the word 'or.'" (Ibid.)

       The Court of Appeal concluded that the parenthetical phrase operated to give the

word "or" its ordinary meaning (as a choice between alternatives). Under this

interpretation, the parenthetical phrase was treated to mean "or store up to the present

capacity of its reservoirs" as an alternative to the word "divert." (Dow, supra, 216

Cal.App.4th at p. 784.) Read in this manner, Lassen Irrigation Company did not have the

broad scope in water rights it claimed.

       Likewise, in this case the court should have construed the forum selection clause

as containing a parenthetical phrase which explained the subject of the provision. The

following clause constitutes the parenthetical phrase in this case because it is separated

from the rest of the sentence by two (2) commas: "agree that should conditions arise

where a situation needs to be redressed through arbitration." Read in its segregated state,

the parenthetical phrase demonstrates that the topic of the forum selection clause is

arbitration, not civil lawsuits.

       Not only is the term "arbitration" isolated from the rest of the sentence, it is the

only dispute process referred to in the parenthetical. Had Outdoor Lifestyle intended this

clause to apply to proceedings other than arbitration, there would be no need to isolate the

phrase with the use of two (2) commas. Instead, the clause would have simply stated the

applicable proceedings were "arbitration, mediation, legal proceedings, or other actions."



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       As drafted, the commas separating the parenthetical phrase from the rest of the

sentence create an order to the sequential elements of the sentence, as follows: (1)

furnishings are purchased or services are obtained from Outdoor Lifestyle; (2) should a

situation occur which needs to be redressed through arbitration; (3) legal proceedings

shall be commenced in Gaston County, North Carolina. In other words, by isolating the

clause concerning arbitration in a parenthetical, the sentence operates to instruct buyers

of Outdoor Lifestyle furniture that, if conditions arise where grievances need redress

through arbitration, then legal proceedings must be pursued in North Carolina.

       Moreover, the omission of the terms "and" and "or" evidence Outdoor Lifestyle's

intent to limit the application of the forum selection clause. Outdoor Lifestyle could have

included "and" or "or" in the forum selection clause so that it read " . . . should conditions

arise where a situation needs to be redressed through arbitration and/or legal

proceedings." Had the clause been constructed in this manner, the terms "and" and "or"

would have distinguished arbitration from "legal proceedings" as separate and distinct

dispute processes. In this light, the forum selection clause would have made clear its

intention to encompass all legal proceedings.

       In sum, we conclude the court erred in granting Outdoor Lifestyle's motion to

dismiss for forum non conveniens, and dismissing the action.




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                                   DISPOSITION

     The judgment is reversed. Starbucks shall recover its costs on appeal.


                                                                              NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.




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