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Handoush v. Lease Finance Group, LLC

California Court of Appeals, First District, Third Division

October 31, 2019

Zeaad HANDOUSH, Plaintiff and Appellant,
v.
LEASE FINANCE GROUP, LLC, Defendant and Respondent.

         [REVIEW GRANTED BY CAL. SUPREME COURT]

         [254 Cal.Rptr.3d 462] Superior Court of Alameda County, Victoria S. Kolakowski, J. (Alameda County Super. Ct. No. RG16800919)

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[Copyrighted Material Omitted]

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         COUNSEL

         Law Offices of Ian Booth Kelley and Ian Booth Kelley, San Francisco, for Plaintiff and Appellant.

         Daniel B. Harris, San Francisco, for Defendant and Respondent.

         OPINION

         Wick, J.[*]

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          Plaintiff Zeaad Handoush appeals from an order granting defendant Lease Finance Group, LLC’s (LFG) motion to dismiss based upon a forum selection clause in the parties’ lease agreement. The clause designates the State and County of New York as the forum for any dispute between the parties and designates New York law as governing all disputes. It also includes a jury trial waiver. Handoush argues the trial court erred because enforcing the forum selection clause and related choice of law clause deprives him of his substantive right to a jury trial, which is unwaivable at the predispute stage under California law. We reverse.

          BACKGROUND

         On January 21, 2016, Handoush, the owner of Whelan’s Cigar Store, sued LFG alleging LFG defrauded Handoush regarding a lease agreement for credit card processing equipment between Handoush and LFG, as assignee of Americorp Leasing, LLC.[1] The complaint alleges causes of action for fraud, rescission, injunctive relief and violation of Business and Professions Code section 17200. Attached to the complaint is the lease agreement, which states in relevant part: "GOVERNING LAW; CHOICE OF FORUM; WAIVER OF JURY TRIAL; LIMITATION OF ACTION. You and we agree that our acceptance and execution of the Lease at our executive office in the City and State of New York shall be the final act necessary for the formation of this Lease. This Lease, and any and all actions, proceedings, and matters in dispute between you and us, whether arising from or relating to the Lease itself, or arising from alleged extra-contractual facts prior to, during, or subsequent to the Lease (all collectively referred to hereafter as a "Dispute"), shall be governed by the laws of the State of New York, without regard to the conflict of law, rules or principles thereof. All Disputes shall be instituted and prosecuted exclusively in the federal or state courts located in the State and County of New York notwithstanding that other courts may have jurisdiction over the parties and the subject matter. YOU AND WE WAIVE, INSOFAR AS PERMITTED BY LAW, TRIAL BY JURY IN ANY DISPUTE...."

         On November 11, 2016, LFG moved to dismiss the complaint under Code of Civil Procedure section 410.30, subdivision (a), based upon the forum selection clause in the lease agreement. Handoush’s opposition [254 Cal.Rptr.3d 463] argued that he

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was unaware of the forum selection clause, and he submitted an unsigned declaration in support of his argument. He also argued the clause is unenforceable because it would deprive him of his substantive right to a jury trial. According to Handoush, because the forum selection clause also purports to deprive him of the right to a jury trial, the burden is shifted to LFG to show that litigating in the contractually designated forum will not diminish Handoush’s substantive rights afforded under California law. Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 32 Cal.Rptr.3d 5, 116 P.3d 479 (Grafton ), forbids predispute jury trial waivers, whereas under New York law such waivers are enforceable. Handoush argued that LFG failed to meet its burden to demonstrate that enforcing the forum selection clause will not diminish Handoush’s substantive rights. LFG’s reply brief below did not address Handoush’s burden shifting or substantive rights arguments. Instead it argued that forum selection clauses are presumptively valid and that Handoush’s declaration is irrelevant.

         On January 10, 2017, the court affirmed its tentative ruling and issued an order granting LFG’s motion to dismiss. The court found that Handoush did not meet his heavy burden of demonstrating that the forum selection clause is unreasonable. The court noted Handoush’s declaration in opposition to the motion is unsigned and concluded Handoush submitted no admissible evidence in opposition. The court rejected Handoush’s argument that the burden shifts to LFG to demonstrate that the forum selection clause will not diminish his substantive rights under California law, finding that such burden shifting only applies where a plaintiff’s claim involves unwaivable rights created by California statutes. In addition, the court states "the right to trial by jury is not unwaivable" under Code of Civil Procedure section 631. Finally, the order states, "Plaintiffs argue that California law forbids predispute waiver of the right to a jury trial, unlike New York law, citing Grafton Partners v. ...


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