mandatory forum selection clause in California

2025DISCUSSION I Applicable Law and Standard of Review “ ‘California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable. [Citation.] 7 This favorable treatment is attributed to our law’s devotion to the concept of one’s free right to contract, and flows from the important practical effect such contractual rights have on commerce generally.’ [Citation.] Indeed, ‘ “[f]orum selection clauses are important in facilitating national and international commerce, and as a general rule should be welcomed.” [Cita

2023(Berg, at p. 358; see Bushansky v. Soon- Shiong (2018) 23 Cal.App.5th 1000, 1011, fn. 7 (Bushansky) [“ ‘[I]f there is a mandatory forum selection clause, the test is simply whether application of 8 the clause is unfair or unreasonable, and the clause is usually given effect.’ ”].) “This favorable treatment is attributed to our law’s devotion to the concept of one’s free right to contract, and flows from the important practical effect such contractual rights have on commerce generally.” (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 12 (America Online).) “Nonetheless, ‘Califor

2026(See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 480, fn. 7 [question was one of California law where parties failed to provide the law of the foreign jurisdiction]; see also Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [“An appellate court ‘will not develop the appellants’ arguments for them . . . .’ ”].) 7 subject to the exclusive jurisdiction of the courts of the state of New York.” That clause “contains express language of exclusivity of jurisdiction, specifying a mandatory location for litigation” that is the hallmark of “a mandatory forum sele

2023(Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 444 (Quanta).) Since, without such a clause, “neither party possesses a right to any particular forum,” a court’s “selection of one [forum] over the other requires the weighing of a gamut of factors of public and private convenience, not to mention the strong interest of a plaintiff’s domicile in providing the plaintiff access to its courts.” (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1683 (Cal-State); see Berg, supra, 61 Cal.App.4th at p. 359 [where “a clause merely provides f

2023(Intershop, supra, 104 Cal.App.4th at p. 198 ; Cal-State Business Products, supra, at pp. 1679, 1682-1683 .) Instead, a mandatory forum selection clause is presumed valid and will be enforced unless enforcement of the clause would be unreasonable under the circumstances of the case.

2023(Berg, at p. 358; see Bushansky v. Soon- Shiong (2018) 23 Cal.App.5th 1000, 1011, fn. 7 (Bushansky) [“ ‘[I]f there is a mandatory forum selection clause, the test is simply whether application of 8 the clause is unfair or unreasonable, and the clause is usually given effect.’ ”].) “This favorable treatment is attributed to our law’s devotion to the concept of one’s free right to contract, and flows from the important practical effect such contractual rights have on commerce generally.” (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 12 (America Online).) “Nonetheless, ‘Califor

2025(See Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 (Berg) [a mandatory forum selection clause includes express language of exclusivity of jurisdiction or a mandatory place of litigation].) Such a mandatory forum selection clause is valid and enforceable so long as it is entered into freely and voluntarily and its enforcement would not be unreasonable.

2023(Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 444 (Quanta).) Since, without such a clause, “neither party possesses a right to any particular forum,” a court’s “selection of one [forum] over the other requires the weighing of a gamut of factors of public and private convenience, not to mention the strong interest of a plaintiff’s domicile in providing the plaintiff access to its courts.” (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1683 (Cal-State); see Berg, supra, 61 Cal.App.4th at p. 359 [where “a clause merely provides f

2025(Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 ; America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 9 (America Online).) Here, the dispute resolution provision in the Agreement contains a mandatory forum selection clause selecting Delaware as the exclusive jurisdiction for the place of litigation.

2025(Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 495-496 ; America Online, supra, 90 Cal.App.4th at p. 11 .) “[I]f 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.

2026Productions, Inc. (2011) 193 Cal.App.4th 466, 471 (Animal Film); see also EpicentRx, Inc. v. Superior Court (2025) 18 Cal.5th 58 , 73 (EpicentRx) [recognizing the trial court’s discretion].) However, “[i]n a contract dispute in which the parties’ agreement contains a forum selection clause, a threshold issue . . . is whether the forum selection clause is mandatory or permissive.” (Animal Film, at p. 471; see also EpicentRx, at p. 67 2 Undesignated statutory references are to the Code of Civil Procedure. 5 [“Forum selection clauses serve vital commercial purposes and should generally be enforce

2025(Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 495-496 ; America Online, supra, 90 Cal.App.4th at p. 11 .) “[I]f 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.

2026(See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 480, fn. 7 [question was one of California law where parties failed to provide the law of the foreign jurisdiction]; see also Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [“An appellate court ‘will not develop the appellants’ arguments for them . . . .’ ”].) 7 subject to the exclusive jurisdiction of the courts of the state of New York.” That clause “contains express language of exclusivity of jurisdiction, specifying a mandatory location for litigation” that is the hallmark of “a mandatory forum sele

2023Marine).) “When a case involves a mandatory forum selection clause, it will usually be 21 simply by failing to adhere to its procedural requirements.” (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1303, fn. 12 (Olinick); see also Sun v. Advanced China Healthcare, Inc. (9th Cir. 2018) 901 F.3d 1081, 1091-1092 ; Atl.

2026(See CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.App.4th 1347, 1358 ; see Ricoh, at pp. 1672, fn. 4, 1677 [using “ ‘shall’ ”].) Because the forum selection clause contains expressly mandatory language, we readily conclude the trial court correctly determined it was a mandatory forum selection clause.

2015Productions, Inc. (2011) 193 Cal.App.4th 466, 471 [ 123 Cal.Rptr.3d 72 ] (Animal Film), Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 [ 71 Cal.Rptr.2d 523 ] (Berg).) “ ‘ “Mere inconvenience or additional expense is not the test of unreasonableness . . .” ’ of a mandatory forum selection clause. [Citation.]” (Berg, at p. 359.) A clause is reasonable if it has a logical connection with at least one of the parties or their transaction. 2 (America Online, supra, 90 Cal.App.4th at p. 12 ; CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.Ap

2026(See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 480, fn. 7 [question was one of California law where parties failed to provide the law of the foreign jurisdiction]; see also Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [“An appellate court ‘will not develop the appellants’ arguments for them . . . .’ ”].) 7 subject to the exclusive jurisdiction of the courts of the state of New York.” That clause “contains express language of exclusivity of jurisdiction, specifying a mandatory location for litigation” that is the hallmark of “a mandatory forum sele

2026Productions, Inc. (2011) 193 Cal.App.4th 466, 471 (Animal Film); see also EpicentRx, Inc. v. Superior Court (2025) 18 Cal.5th 58 , 73 (EpicentRx) [recognizing the trial court’s discretion].) However, “[i]n a contract dispute in which the parties’ agreement contains a forum selection clause, a threshold issue . . . is whether the forum selection clause is mandatory or permissive.” (Animal Film, at p. 471; see also EpicentRx, at p. 67 2 Undesignated statutory references are to the Code of Civil Procedure. 5 [“Forum selection clauses serve vital commercial purposes and should generally be enforce

2022Claims 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 “sh

2013(Trident Labs, Inc. v. Merrill Lynch Commercial Finance Corp. (2011) 200 Cal.App.4th 147, 155-156 [finding that under the circumstances of the case a delay of more than 19 months in bringing the motion to enforce a mandatory forum selection clause made the enforcement of the clause unreasonable].) The evidence in the record supports the court‘s conclusion that New York was an unreasonable forum, and none of the arguments made by Dunlap below or before this court undermine that conclusion.

2023(Berg, at p. 358; see Bushansky v. Soon- Shiong (2018) 23 Cal.App.5th 1000, 1011, fn. 7 (Bushansky) [“ ‘[I]f there is a mandatory forum selection clause, the test is simply whether application of 8 the clause is unfair or unreasonable, and the clause is usually given effect.’ ”].) “This favorable treatment is attributed to our law’s devotion to the concept of one’s free right to contract, and flows from the important practical effect such contractual rights have on commerce generally.” (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 12 (America Online).) “Nonetheless, ‘Califor

2023(Berg, at p. 358; see Bushansky v. Soon- Shiong (2018) 23 Cal.App.5th 1000, 1011, fn. 7 (Bushansky) [“ ‘[I]f there is a mandatory forum selection clause, the test is simply whether application of 8 the clause is unfair or unreasonable, and the clause is usually given effect.’ ”].) “This favorable treatment is attributed to our law’s devotion to the concept of one’s free right to contract, and flows from the important practical effect such contractual rights have on commerce generally.” (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 12 (America Online).) “Nonetheless, ‘Califor

2015Productions, Inc. (2011) 193 Cal.App.4th 466, 471 [ 123 Cal.Rptr.3d 72 ] (Animal Film), Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 [ 71 Cal.Rptr.2d 523 ] (Berg).) “ ‘ “Mere inconvenience or additional expense is not the test of unreasonableness . . .” ’ of a mandatory forum selection clause. [Citation.]” (Berg, at p. 359.) A clause is reasonable if it has a logical connection with at least one of the parties or their transaction. 2 (America Online, supra, 90 Cal.App.4th at p. 12 ; CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.Ap

2015Productions, Inc. (2011) 193 Cal.App.4th 466, 471 [ 123 Cal.Rptr.3d 72 ] (Animal Film), Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 [ 71 Cal.Rptr.2d 523 ] (Berg).) “ ‘ “Mere inconvenience or additional expense is not the test of unreasonableness . . .” ’ of a mandatory forum selection clause. [Citation.]” (Berg, at p. 359.) A clause is reasonable if it has a logical connection with at least one of the parties or their transaction. 2 (America Online, supra, 90 Cal.App.4th at p. 12 ; CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.Ap

2015(See Anderson, supra, 232 Cal.App.4th at p. 1275 [opinion is not authority for proposition it did not consider].) America Online was decided after Wimsatt and extended its exception to claims under the CLRA, but America Online did not address how a defendant could show enforcing a forum selection clause would not diminish a plaintiff’s unwaivable statutory rights.

2015(See Anderson, supra, 232 Cal.App.4th at p. 1275 [opinion is not authority for proposition it did not consider].) America Online was decided after Wimsatt and extended its exception to claims under the CLRA, but America Online did not address how a defendant could show enforcing a forum selection clause would not diminish a plaintiff’s unwaivable statutory rights.

2019“California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable. [Citation.] This favorable treatment is attributed to our law’s devotion to the concept of one’s free right to contract, and flows from the important practical effect such contractual rights have on commerce generally.” (America Online, Inc. v. Superior Court (2001) 90 3 Cal.App.4th 1, 11 (AOL).) But “California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents

2015Hall was decided 12 years before Wimsatt first recognized an exception to the ordinary burden of proof on a motion to enforce a mandatory forum selection clause (see Wimsatt, supra, 32 Cal.App.4th 1511 ; Hall, supra, 150 Cal.App.3d 411 ), and therefore Hall did not consider whether placing the burden on the defendant to show the plaintiff’s rights will not be diminished would require a comparison of the two forums’ laws.

2021(Net2Phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583, 587-588 (Net2Phone); America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 11-12 (America Online).) Although a mandatory forum selection clause cannot completely eliminate a trial court’s discretion to make appropriate rulings regarding choice of forum, the modern trend is to enforce mandatory forum selection clauses unless they are unfair or unreasonable.

2021In any event, the California Supreme Court has held that “ ‘[m]ere inconvenience or additional expense is not the test of unreasonableness [for a mandatory forum selection clause].’ ” (Smith, supra, 17 Cal.3d at p. 496 ; accord Net2Phone, supra, 109 Cal.App.4th at p. 588 [noting that California courts routinely enforce forum selection clauses even where the chosen forum is far from the plaintiff’s residence]; America Online, supra, 90 Cal.App.4th at p. 19 [“the additional cost or inconvenience necessitated by litigation in the selected forum is not part of the calculus when considering whether

2025(Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 ; America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 9 (America Online).) Here, the dispute resolution provision in the Agreement contains a mandatory forum selection clause selecting Delaware as the exclusive jurisdiction for the place of litigation.

2024(Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 751 [“On a motion for forum non conveniens, the defendant, as the moving party, bears the burden of proof.”].) Rather than assume this 9 In light of our conclusion, it is unnecessary for us to decide whether section 13.15 could be enforced had we determined it was a mandatory forum selection clause.

2026Claims that the previously chosen forum is unfair or inconvenient are generally rejected. [Citation.]” (Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 .) “‘[E]nforcement is considered unreasonable where “the forum selected would be unavailable or unable to accomplish substantial justice” or there is no “rational basis” for the selected forum. [Citation.]’” (Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal.App.5th 206, 216 (Korman).) “A consumer’s rights under the Song-Beverly Act are unwaivable.” (Lathrop v. Thor Motor Coach, Inc. (2024) 105 Cal.App.5th 808 , 816, r

2021“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., qu

2023(Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 444 (Quanta).) Since, without such a clause, “neither party possesses a right to any particular forum,” a court’s “selection of one [forum] over the other requires the weighing of a gamut of factors of public and private convenience, not to mention the strong interest of a plaintiff’s domicile in providing the plaintiff access to its courts.” (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1683 (Cal-State); see Berg, supra, 61 Cal.App.4th at p. 359 [where “a clause merely provides f

2023(Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 444 (Quanta).) Since, without such a clause, “neither party possesses a right to any particular forum,” a court’s “selection of one [forum] over the other requires the weighing of a gamut of factors of public and private convenience, not to mention the strong interest of a plaintiff’s domicile in providing the plaintiff access to its courts.” (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1683 (Cal-State); see Berg, supra, 61 Cal.App.4th at p. 359 [where “a clause merely provides f

2021In any event, the California Supreme Court has held that “ ‘[m]ere inconvenience or additional expense is not the test of unreasonableness [for a mandatory forum selection clause].’ ” (Smith, supra, 17 Cal.3d at p. 496 ; accord Net2Phone, supra, 109 Cal.App.4th at p. 588 [noting that California courts routinely enforce forum selection clauses even where the chosen forum is far from the plaintiff’s residence]; America Online, supra, 90 Cal.App.4th at p. 19 [“the additional cost or inconvenience necessitated by litigation in the selected forum is not part of the calculus when considering whether

2021In any event, the California Supreme Court has held that “ ‘[m]ere inconvenience or additional expense is not the test of unreasonableness [for a mandatory forum selection clause].’ ” (Smith, supra, 17 Cal.3d at p. 496 ; accord Net2Phone, supra, 109 Cal.App.4th at p. 588 [noting that California courts routinely enforce forum selection clauses even where the chosen forum is far from the plaintiff’s residence]; America Online, supra, 90 Cal.App.4th at p. 19 [“the additional cost or inconvenience necessitated by litigation in the selected forum is not part of the calculus when considering whether

2019Reasonableness "When a case involves a mandatory forum selection clause, it will usually be given effect unless it is unfair or unreasonable. [Citation.]" ( Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651 , 661, 195 Cal.Rptr.3d 430 .) "Both California and federal law presume a contractual forum selection clause is valid and place the burden on the party seeking to overturn the forum selection clause. [Citations.]" ( Schlessinger , supra , 120 Cal.App.4th at p. 558 , 16 Cal.Rptr.3d 5 .) "It is well settled that parties may contract in advance to select the forum in which

2019Reasonableness “When a case involves a mandatory forum selection clause, it will usually be given effect unless it is unfair or unreasonable. [Citation.]” (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 661 .) “Both California and federal law presume a contractual forum selection clause is valid and place the burden on the party seeking to overturn the forum selection clause. [Citations.]” (Schlessinger, supra, 120 Cal.App.4th at p. 558 .) “It is well settled that parties may contract in advance to select the forum in which their disputes will be adjudicated. [Citatio

2019Reasonableness "When a case involves a mandatory forum selection clause, it will usually be given effect unless it is unfair or unreasonable. [Citation.]" ( Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651 , 661, 195 Cal.Rptr.3d 430 .) "Both California and federal law presume a contractual forum selection clause is valid and place the burden on the party seeking to overturn the forum selection clause. [Citations.]" ( Schlessinger , supra , 120 Cal.App.4th at p. 558 , 16 Cal.Rptr.3d 5 .) "It is well settled that parties may contract in advance to select the forum in which

2019Reasonableness "When a case involves a mandatory forum selection clause, it will usually be given effect unless it is unfair or unreasonable. [Citation.]" ( Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651 , 661, 195 Cal.Rptr.3d 430 .) "Both California and federal law presume a contractual forum selection clause is valid and place the burden on the party seeking to overturn the forum selection clause. [Citations.]" ( Schlessinger , supra , 120 Cal.App.4th at p. 558 , 16 Cal.Rptr.3d 5 .) "It is well settled that parties may contract in advance to select the forum in which

2015Productions, Inc. (2011) 193 Cal.App.4th 466, 471 [ 123 Cal.Rptr.3d 72 ] (Animal Film), Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 [ 71 Cal.Rptr.2d 523 ] (Berg).) “ ‘ “Mere inconvenience or additional expense is not the test of unreasonableness . . .” ’ of a mandatory forum selection clause. [Citation.]” (Berg, at p. 359.) A clause is reasonable if it has a logical connection with at least one of the parties or their transaction. 2 (America Online, supra, 90 Cal.App.4th at p. 12 ; CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.Ap

2015Productions, Inc. (2011) 193 Cal.App.4th 466, 471 [ 123 Cal.Rptr.3d 72 ] (Animal Film), Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358 [ 71 Cal.Rptr.2d 523 ] (Berg).) “ ‘ “Mere inconvenience or additional expense is not the test of unreasonableness . . .” ’ of a mandatory forum selection clause. [Citation.]” (Berg, at p. 359.) A clause is reasonable if it has a logical connection with at least one of the parties or their transaction. 2 (America Online, supra, 90 Cal.App.4th at p. 12 ; CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.Ap

2026(See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 480, fn. 7 [question was one of California law where parties failed to provide the law of the foreign jurisdiction]; see also Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [“An appellate court ‘will not develop the appellants’ arguments for them . . . .’ ”].) 7 subject to the exclusive jurisdiction of the courts of the state of New York.” That clause “contains express language of exclusivity of jurisdiction, specifying a mandatory location for litigation” that is the hallmark of “a mandatory forum sele

2026(See Ashall, supra, 992 A.2d at p. 1250 [explaining that a provision stating that a specific court shall have 8 jurisdiction over any dispute is mandatory, rather than permissive].) Plaintiffs assert, however, that the trial court erred in applying the mandatory forum selection clause in the Confidentiality Agreement to each of their causes of action, and to non-signatories Amaro and Soriano.