Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Michael B. Orfield, Judge, Super. Ct. No. GIN04078
HUFFMAN, J.
In this action seeking damages for breach of contract and declaratory relief, plaintiff Dimension One Spas, Inc. (plaintiff) appeals the order of the trial court that granted the motion by plaintiff's former sales representative, defendant Marc Van Eetvelde (defendant) to stay this action on an inconvenient forum basis, pending resolution of a later-filed, separate action brought by defendant in Belgium on the same basic contract issues. (Code Civ. Proc., § 410.30.) On appeal, plaintiff asserts the trial court erred as a matter of law in failing to recognize that when defendant, a Belgian citizen, signed plaintiff's independent sales representative agreement (the agreement) that contained a mandatory forum selection clause designating California law and courts for resolution of disputes, he voluntarily consented to the jurisdiction of California courts in litigation against him pertaining to the agreement. The agreement was executed in California, governed by California law, to allow defendant to distribute California manufactured products overseas.
All further statutory references are to the Code of Civil Procedure.
Plaintiff further asserts that even if the contractual forum selection clause is considered to be permissive, rather than mandatory, the trial court abused its discretion in imposing the stay, because its determination that Belgium was the more convenient forum for adjudication of the dispute lacks support in the record and represents an improper balancing of the respective interests. (Berg v. MTC Electronics Technologies (1998) 61 Cal.App.4th 349, 361-362 (Berg).)
We conclude the trial court erred in its reading of the subject forum selection clause, because when that language is read in the context of the entire agreement, it is mandatory in nature, rather than permissive. On a de novo basis, we conclude that the parties must have reasonably anticipated in entering into the agreement that this contractual forum selection provision would bind both parties to bring any actions arising out of the agreement in California courts only.
In the alternative, if we assume that the forum selection clause should instead be considered to be permissive, we conclude the trial court abused its discretion in balancing, in favor of Belgium, the relevant factors pertaining to forum non conveniens determinations. We reverse the order imposing the stay with directions to vacate it and enter a different order denying the motion in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's complaint was filed in San Diego County Superior Court in 2005, alleging causes of action against defendant for breach of contract, declaratory relief regarding the provisions of the agreement, and indemnity. The complaint alleges that defendant, a citizen of Belgium, entered into the written agreement in California in 1998, to distribute its products overseas in specified sales territories. The parties continued to operate under the agreement after its expiration date, through oral extensions. Plaintiff alleges the parties had a falling out in 2005 when plaintiff discovered defendant had been selling competing products to customers and had transferred for compensation some of his claimed sales territory to others, including his brother, Frank Van Eetvelde (Frank). Frank sued plaintiff in Belgium in 2005 to recover unpaid commissions. Plaintiff notified defendant it would be reducing his sales commissions, and defendant objected, stating the written agreement had expired by then. This action by plaintiff followed, including allegations that defendant had breached the contract by engaging in unfair trade practices. Damages, declaratory relief and indemnity from defendant were sought, for various representations he had made to third parties about commissions due to them from plaintiff.
A copy of the agreement is attached to the complaint. Its forum selection and choice of law clause, paragraph 24, states as follows:
"This agreement shall be governed and construed in all respects in accordance with the laws of the State of California, but without regard to California's conflicts of law principles. Any litigation instituted by Representative [defendant] against Dimension One [plaintiff] pertaining to any breach or termination of this agreement, or otherwise pertaining directly or indirectly to this agreement must be filed by Representative before a court of competent jurisdiction in California. Representative hereby consents irrevocably to the jurisdiction of the California courts over its person in the event that Dimension One elects to institute any such litigation against Representative in California. In such event, service of process may be made upon Representative as provided by California law, or shall be considered effective if sent by certified or registered mail, return receipt requested, postage prepaid." (Capitalization omitted, italics added.)
After plaintiff served the complaint by mail on defendant in October 2005, defendant objected that formal service according to international law was required, and this was done in May 2006. Meanwhile, defendant filed his own action against plaintiff in the commercial courts of Belgium, in March 2006. Defendant sought relief under Belgian law for the unilateral termination of an oral agency agreement without cause. Such an action would evidently be heard by a three-officer panel in Belgium, without participation of witnesses or a jury.
We will resolve plaintiff's judicial notice request of certain articles about Belgian commercial law and procedure in the discussion portion of this opinion.
Defendant filed a motion to dismiss the complaint based on inconvenience of forum, on the basis that there was no mandatory forum selection clause. Defendant also sought to stay the matter, contending that the established factors for determining inconvenient forum weighed in favor of resolving the matter in Belgium. Defendant relied on the presence of witnesses overseas since that was where the sales business had been conducted, and on the practical difficulties of proceeding with the litigation where substantial evidence and witnesses were in Europe. Defendant sought judicial notice of the complaints he and Frank had filed in the Belgian commercial courts, and also of the existence of certain Belgian law pertaining to commercial agency agreements and exclusive distribution agreements.
In its opposition, plaintiff argued the express forum selection clause applied, placing jurisdiction in California, and in any case, no exceptional circumstances justified a dismissal or stay for inconvenient forum. Plaintiff sought judicial notice of documents showing that Belgium is a member of the European Union, which has issued a directive on the way to handle a commercial agent under its law. At oral argument, the trial court granted that judicial notice request, after plaintiff's counsel orally argued it should be entitled to its jury trial rights under California law, to further support its claim that Belgium was an inconvenient forum.
The trial court issued a tentative ruling, later confirmed after argument, denying defendant's motion to dismiss the complaint based on forum non conveniens. However, the ruling further granted the request for stay, on the basis that the forum selection clause was permissive only as to plaintiff, so the claims raised in this action could be litigated elsewhere. The court did not find it necessary to determine whether the written contract had been orally extended, in light of its finding that the forum selection clause was not binding upon plaintiff in any case.
In the formal order, the trial court concluded that Belgium would be a suitable alternative forum to California, and confirmed the tentative ruling to impose a stay on this action, subject to further consideration if the Belgian action proved inadequate. In balancing the public and private factors to be considered in such a determination, the court noted that a European forum was appropriate because access to sources of proof are in Europe, as are the main witnesses to any breach of contract. However, the court also noted that there were public interest factors in favor of California jurisdiction, due to the interest of California in regulating products manufactured here, since plaintiff is a California company. The court found those public interest factors unconvincing, because "[t]he court must consider the protection of potential jurors from deciding cases in which they have little concern. It must also consider the difficulty in managing a case in California where substantial evidence and witnesses are in Europe."
Plaintiff timely filed its notice of appeal.
DISCUSSION
Normally, an abuse of discretion standard will be applied in an appellate review of a trial court's decision to enforce or deny enforcement of a forum selection clause. (Intershop Communications v. Superior Court (2002) 104 Cal.App.4th 191, 198-199 (Intershop Communications); Hunt v. Superior Court (2000) 81 Cal.App.4th 901, 905 (Hunt).) However, this abuse of discretion standard does not come into play if a valid forum selection clause exists that mandates that jurisdiction be exercised in California. (Ibid.) We next outline the basic principles for applying the rules of forum non conveniens. We will then be able to set forth contractual rules for interpreting the parties' agreement about forum selection, and to characterize it as mandatory or permissive. Finally, we turn to the remaining issues concerning the discretionary choice of a forum, for cases in which contractual issues are not dispositive. (Berg, supra, 61 Cal.App.4th 349, 358-359.)
I
FORUM NON CONVENIENS GENERALLY; JUDICIAL NOTICE REQUEST
"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. [Citation.]" (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) The doctrine of forum non conveniens is codified in section 410.30, which states:
"(a) When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just."
Section 410.30 allows either dismissal or stay of an action if the defendant shows the California forum is inconvenient. "Both the terms of section 410.30 and the prior decisional law [citation] distinguish between the dismissal of an action on grounds of forum non conveniens, and the stay of an action on that ground . . . ." (Ferreira v. Ferreira (1973) 9 Cal.3d 824, 838.) "The distinction between a dismissal and a stay does not merely lie in terminology. The staying court retains jurisdiction over the parties and the cause; . . . it can compel the foreign [party] to cooperate in bringing about a fair and speedy hearing in the foreign forum; it can resume proceedings if the foreign action is unreasonably delayed or fails to reach a resolution on the merits. [Citation.] In short, the staying court can protect . . . the interests of the California resident pending the final decision of the foreign court." (Id. at p. 841.)
As a threshold matter, we will address plaintiff's request filed in this court while the appeal was pending, seeking judicial notice of certain authorities summarizing the structure of Belgian law and its dispute resolution mechanisms for international contract disputes ("Belgium Research Guide," "Guide to Belgian Law," etc.). (Evid. Code, §§ 452, 459.) This request seeks to support plaintiff's arguments that its contract claims are not suitable for adjudication overseas. We issued an order deferring the matter to the merits panel.
Although the nonavailability of trial by jury in Belgium for contract disputes was generally discussed at oral argument, research materials like these were not before the trial court. Although each party sought judicial notice from the trial court of documents relating to European Union and Belgian rules for resolving commercial disputes, those documents were more specific and less editorial than the material now presented. The commentary and treatise materials currently presented do not properly address the contractual interpretation issues presented. They amount to new evidence or legal opinions that are outside the scope of the legal issues that were brought before the trial court, but the current record is adequate to address the issues on appeal. Moreover, since this court does not undertake a discretionary reweighing of the factors relating to forum selection, it would be speculative to apply these newly submitted opinions about foreign law in that context. The current judicial notice request must be denied.
II
FORUM SELECTION CLAUSE
The parties' agreement includes a forum selection clause that immediately follows a provision stating that California provides the governing law for interpreting the contract. Initially, we agree with the trial court that in ruling upon jurisdictional facts, it is not necessary to make a binding determination of the effectiveness of the alleged oral agreements to extend the effective period of the written agreement. For purposes of determining a forum non conveniens motion, the merits of the underlying dispute are not yet at issue and are neither resolved nor waived through discussion of the merits as they relate to jurisdictional facts only. (See Malone v. Equitas Reins. Ltd. (2000) 84 Cal.App.4th 1430, 1441; Intershop Communications, supra, 104 Cal.App.4th 191, 202.) Defendant does not take a position on the contract extension in this appeal, and we may assume the parties were still operating under the terms of the written agreement, including its forum selection clause.
A. Rules of Contract
To resolve the threshold issue of the validity and scope of such a clause, standard rules of construction of the terms of written contracts will be applied. " ' "When a dispute arises over the meaning of contract language, the first question to be decided is whether the language is 'reasonably susceptible' to the interpretation urged by the party. If it is not, the case is over. [Citation.] If the court decides the language is reasonably susceptible to the interpretation urged, the court moves to the second question: what did the parties intend the language to mean?" ' [Citation.]" (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 524 (Reynolds Tobacco); Intershop Communications, supra, 104 Cal.App.4th 191, 196.)
Appellate review of the trial court's contractual interpretation will be conducted on a de novo basis: "An appellate court is not bound by the trial court's construction of a contract when, as here, the interpretation is based solely upon the terms of the written instrument without any assessment of conflicting extrinsic evidence. [Citation.]" (Intershop Communications, supra, 104 Cal.App.4th 191, 196.)
Courts will strive to "give a ' "reasonable and commonsense interpretation" ' of a contract consistent with the parties' apparent intent. [Citation.] The language ' " 'in a contract must be construed in the context of that instrument as a whole.' " ' [Citation.] Further, if possible, the court should give effect to every provision of the contract. [Citation.]" (Reynolds Tobacco, supra, 107 Cal.App.4th 516, 525 -526.)
A forum selection clause must provide adequate notice to the defendant that he was agreeing to the jurisdiction cited in the contract, or else the necessary mutual consent to the contractual provision is not shown. (Hunt, supra, 81 Cal.App.4th 901, 908, citing Carnival Cruise Lines, Inc. v. Superior Court (1991) 234 Cal.App.3d 1019, 1026-1027.) "Courts will enforce forum selection clauses contained in a contract freely and voluntarily negotiated at arm's length unless enforcement would be unfair or unreasonable. [Citation.]" (Hunt, supra, at p. 908; Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 495-496.)
B. Application of Rules: Mandatory or Permissive
Case law discusses the requirements for mandatory or permissive forum selection clauses. "Clauses that grant jurisdiction to a particular forum without expressly making that forum the mandatory situs for resolution of disputes are considered permissive only. [Citations.]" (Berg, supra, 61 Cal.App.4th 349, 359.) Merely affording a court jurisdiction without clearly making that jurisdiction exclusive amounts to a permissive provision, rather than a mandatory one: "Additional language giving exclusive jurisdiction to the forum is required. Clauses which merely grant jurisdiction to a designated forum do not prohibit litigation in other appropriate fora. [Citations.] [¶] . . . [¶] A mandatory clause contains clear language showing that jurisdiction is appropriate in the designated forum and none other. [Citations.]" (Berg, supra, 61 Cal.App.4th 349, 360.)
In CQL Original Products, Inc. v. National Hockey League Players' Assn. (1995) 39 Cal.App.4th 1347, 1358-1359 (Hockey League), a forum selection provision was analyzed that included "election" language similar to this one. The clause was found in a license agreement that provided for immediate termination if the plaintiff (licensee) failed to comply with certain preapproval conditions; when the defendant (licensor) determined that plaintiff had allegedly breached the agreement, it was terminated. Plaintiff sued in California and defendant relied on a forum selection clause providing for litigation in Canada. This clause provided, after stating the agreement would be governed by the law of Ontario, Canada, that "[A]ny claims arising hereunder shall, at the Licensor's election, be prosecuted in the appropriate court of Ontario." (Id. at p. 1358.) This court said that the clause was not ambiguous, because it referred to "any claims arising hereunder," without restriction as to who might be asserting the claim. The analysis continued: "Moreover, its mandatory character is reflected by the use of the word 'shall,' requiring prosecution of any claims in Ontario upon (Licensor's) invoking the clause." (Ibid.) This court rejected an argument by the licensee that this was only a permissive clause to establish jurisdiction, instead of a mandatory forum selection provision. We said that the forum selection provision "expressly requires claims arising under the license agreement be prosecuted in Ontario, at [Licensor's] election." (Ibid.) Allowing a litigant to make an election whether to sue at all did not render that forum provision permissive. Rather, the clause retained its mandatory nature regarding the place of trial. (Id. at p. 1359.)
In Intershop Communications, supra, 104 Cal.App.4th 191, 197, the forum selection clause provided: "The parties elect Hamburg to be the place of jurisdiction to the extent permitted by the applicable laws." (Ibid.) The court decided that this clause was of a mandatory nature, because it represented "far more than an agreement to submit to the jurisdiction of Hamburg courts as one of several possible forums. Rather, the clause specifies Hamburg as 'the' place where litigation should be conducted, indicating a single place." (Ibid.)
Once a contract is interpreted as specifying 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. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. [Citation.] A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. [Citation.] ' "Mere inconvenience or additional expense is not the test of unreasonableness . . ." ' of a mandatory forum selection clause. [Citation.]" (Berg, supra, 61 Cal.App.4th 349, 358-359.)
The terms of the forum selection provision in this case appear in paragraph 24 of the agreement, together with a choice of law provision, that "this agreement shall be governed and construed in all respects in accordance with the laws of the State of California, but without regard to California's conflicts of law principles." Next, the clause sets out defendant's obligations regarding "[a]ny litigation instituted by Representative [defendant] against Dimension One [plaintiff] pertaining to any breach or termination of this agreement," by stating it "must" be filed in California.
In the subject clause, defendant also agreed to "consent[] irrevocably to the jurisdiction of the California courts over its person," under this specified circumstance: "in the event that Dimension One elects to institute any such litigation against Representative in California . . . ." (Italics added.) Is this "clear language showing that jurisdiction is appropriate in the designated forum and none other"? (Berg, supra, 61 Cal.App.4th 349, 360.) Defendant argues it is not because plaintiff has the option to decide whether to "elect[] to institute" litigation, specifically, "any such litigation against Representative." But what does any such mean in this context? It means litigation "pertaining to any breach or termination of this agreement." And, "any such litigation against Representative" will be governed by California law, once the clause is read as a whole. It follows then that even though plaintiff may "elect" whether to sue defendant, such litigation will be governed by California law "without regard to conflicts of law principles." Must the litigation also be conducted in California?
Yes. It follows that the election given to plaintiff to decide whether to sue defendant does not give permissive characteristics to the otherwise mandatory language in the clause, under which defendant previously agreed (1) to sue plaintiff, if at all, in California and (2) to "consent[] irrevocably to the jurisdiction of the California courts over its person," under this specified circumstance: "in the event that Dimension One elects to institute any such litigation against Representative in California . . . " (Italics added.) Whatever litigation may be instituted pertaining to the agreement, this forum selection clause requires that both parties "must" file it, if at all, in California. They agreed that California is the place where litigation, if any, will be conducted. (Intershop Communications, supra, 104 Cal.App.4th at p. 197.) This clause is not fairly to be read as a clause allowing California jurisdiction as only one of several appropriate locations for trial. An agreement that allows plaintiff an election to decide whether to sue defendant at all does not render the forum provision permissive; once suit is filed, the forum selection clause has been triggered and is mandatory in nature, because defendant irrevocably agreed to litigation in California, if anywhere. (See Hockey League, supra, 39 Cal.App.4th at p. 1359.)
We could speculate that this "election" language may have been intended to mean that instead of litigation, other forms of dispute resolution (e.g. mediation, since there is no arbitration clause found in the agreement) could be pursued by plaintiff, in the event of any disputes arising out of the agreement. In any case, the parties' intent does not appear to be that any such "election" by plaintiff would operate to release defendant from his previous agreements (1) to bring any actions on his own behalf in California, and (2) to consent irrevocably to California jurisdiction upon the filing of any suit against him in California. The clause is "reasonably susceptible" to the interpretation urged by plaintiff, and it is the only reading of the contract that implements the apparent intention of the parties, to provide notice to defendant that the agreement will be construed under California law, to which he agreed to submit for jurisdictional and forum purposes. (Reynolds Tobacco, supra, 107 Cal.App.4th 516, 524.) The clause does not merely supply or afford California jurisdiction, without expressly making this forum the mandatory place for resolution of disputes. It provides for the readily foreseeable consequence of a dispute arising pertaining to the agreement: That upon the filing of litigation against defendant, he would be deemed to have agreed irrevocably to the exercise of California court jurisdiction over him, using California law to construe a California contract.
No conflicting extrinsic evidence has been presented regarding the understanding of the parties of their agreement. Contractual rules require this court to read the clause in context with other related clauses and the agreement as a whole, on a de novo basis. We conclude that the forum selection clause in the agreement calls for California jurisdiction over disputes pertaining to it, however they may arise or on whose part. Properly interpreted, this was a mandatory forum selection clause that is sufficient to authorize California jurisdiction over defendant for the purpose of this action, such that no further analysis of convenience to the parties would normally be required on this record.
III
SUITABLE ALTERNATIVE FORUM
A. Discretionary Guidelines on Forum Selection
In an abundance of caution, we next turn to the trial court's alternative analysis regarding permissive forum selection clauses. Arguably, this forum selection clause can be seen as ambiguous. "If the contract is capable of more than one reasonable interpretation, it is ambiguous [citations], and it is the court's task to determine the ultimate construction to be placed on the ambiguous language by applying the standard rules of interpretation in order to give effect to the mutual intention of the parties [citation]. [Citation.]" (Reynolds Tobacco, supra, 107 Cal.App.4th 516, 524-525.) We accordingly address the remainder of the trial court's ruling on forum non conveniens issues, to evaluate its exercise of discretion in staying the action.
The appropriate factors for balancing the issues in such a proceeding are set forth in Stangvik: "In determining whether to grant a motion based on forum non conveniens, 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.) The defendant, as the moving party, bears the burden of proof on a motion based on forum non conveniens. (Ibid.)
Even a mandatory forum selection clause will not be enforced "if to do so would bring about a result contrary to the public policy of this state. [Citations.]" (Intershop Communications, supra, 104 Cal.App.4th 191, 200.) To avoid enforcement, the objecting party must "demonstrate that the contractually selected forum would be unavailable or unable to accomplish substantial justice or that no rational basis exists for the choice of forum. [Citations.]" (Ibid.)
B. Suitability of Forum
The trial court initially ruled that Belgium was an appropriate forum. "A forum is suitable if there is jurisdiction and no statute of limitations bar to hearing the case on the merits. [Citation.] '[A] forum is suitable where an action "can be brought," although not necessarily won.' [Citation.]" (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1036-1037(Chong).) The threshold determination whether the alternative forum is suitable is nondiscretionary, subject to de novo review on appeal. (Id. at p. 1036; Stangvik, supra, 54 Cal.3d at p. 752, fn. 3; American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436.)
Plaintiff, as a California resident, first argues Belgium is not a suitable forum, because it has a very different judicial system, not including a jury trial on these contract issues, and allowing different contract remedies that are more favorable to defendant. This was discussed before the trial court at oral argument, and judicial notice of some authorities about European law was requested by each side. On appeal, plaintiff has sought judicial notice of different legal authorities to back up this particular point, but we have denied that request because we believe it is inappropriate and unnecessary to the proper resolution of this case.
Although we could rely on the nature of this forum selection clause, which we read as mandatory in nature, to support a conclusion that the trial court erred in determining that Belgium was a suitable alternative forum, the better approach for purposes of this analysis is to assume arguendo that Belgium may be deemed a suitable forum, due to the sparse record before the trial court on this point. (Pt. I, ante.) An alternative forum may be found to be suitable if jurisdiction can be established and there is no statute of limitations bar to hearing the case on the merits, and no such limitations problems are presented here. (See Chong, supra, 58 Cal.App.4th at pp. 1036-1037.) We will accordingly focus our analysis upon the trial court's subsequent discretionary ruling balancing the respective interests.
C. Guidelines for Balance of Interest
The trial court has discretion in balancing forum-related interests and its determination is given substantial deference on appeal. (Stangvik, supra, 54 Cal.3d at p. 751.) Analysis of private and public interest factors "must be applied flexibly, without giving undue emphasis to any one element." (Id. at p. 753.) Those elements are identified as follows:
"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. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. [Citations.]" (Stangvik, supra, at p. 751.)
Furthermore, "[w]hen a plaintiff is a resident of a forum state, the plaintiff's choice of forum in that state is afforded substantial weight. [Citation.] " (Chong, supra, 58 Cal.App.4th at p. 1038.) This principle has also been expressed as follows: "the plaintiff's choice of a forum should rarely be disturbed unless the balance is strongly in favor of the defendant. [Citation.]" (Stangvik, supra, 54 Cal.3d 744, 754 -755.) However, the plaintiff's choice of its home forum is given such substantial weight only for certain reasons: "(1) if the plaintiff is a resident of the jurisdiction in which the suit is filed, the plaintiff's choice of forum is presumed to be convenient [citations]; and (2) a state has a strong interest in assuring its own residents an adequate forum for the redress of grievances [citation]." (Ibid.)
Assuming that this forum selection clause may be read as permissive in nature, rather than mandatory, we next analyze whether the trial court had a sufficient basis to exercise its discretion as it did, to choose Belgium as the more convenient forum. It relied on the presence of witnesses and evidence concerning the defendant's performance of his contractual duties overseas, and the resulting practical difficulties in litigation. It also stated that California citizens and potential jury members do not have significant interests in enforcing California contracts under these circumstances. Plaintiff contends this was an abuse of discretion, because some of the witnesses to the parties' course of dealing and contractual relationship are located here, so that it makes sense to litigate where the contract was made. (See Intershop Communications, supra, 104 Cal.App.4th 191, 199-200 [in which the appellate court noted enforcement of the forum selection clause, to select Germany, would make sense under those circumstances, involving a dispute over stock in a foreign corporation subject to foreign securities regulations, and where the parties had agreed that the foreign law would apply].)
With regard to the respective private interests in this case, it is obviously in defendant's interest to litigate the matter in Belgium, on his home court. The trial court recognized that the "private interest factors" will present many practical problems regarding the trial and enforceability of any ensuing judgment, due to difficulties in access to sources of proof, and the location of the main witnesses to the breach, if any, of the contract, in the overseas sales territory. However, the current state of communications technology has no doubt reduced the difficulties in conducting discovery and litigation in general. Plaintiff is willing to undertake the burden of litigating the matter in California, utilizing Hague Convention methods of discovery, and defendant's preference not to do so is not necessarily a compelling interest. Although witnesses to the alleged breaches are likely located overseas, the resulting problems in litigation are not insurmountable, and this factor alone is not dispositive.
In discussing the public interest factors, the trial court acknowledged that plaintiff, a California company, is entitled to some level of preference in its choice of forum. (Stangvik, supra, 54 Cal.3d at p. 754; Chong, supra, 58 Cal.App.4th at pp. 1037-1038.) California has an interest in regulating products that are manufactured here (e.g., selling of products). On balance, the court ruled that the practical problems of litigation outweighed those public interest factors that otherwise pointed toward keeping the case in California. The court stated that local jurors have no particular interest in deciding cases in which they have "little concern." (Stangvik, supra, at p. 751.) Respectfully, we think the trial court seriously underestimated the interests of California citizens in resolving disputes arising from California contracts, particularly where sales of locally manufactured products are concerned. It seems self-evident that local jobs are created and continued when plaintiff has a good sales year and a good bottom line profit margin, and this in turn serves the economic and community interests of local citizens. Even alleged overseas breaches of California contracts, by sales representatives, are likely to have long-range consequences to the local economy. California citizens have an established interest in predictability and enforceability of contracts that are entered into in California, especially where, as here, the contract had been carried out for some period of time before difficulties arose, so that some benefits had been obtained by the defendant.
In light of the nature of the agreement here and its forum selection clause, we find the trial court abused its discretion in ruling that defendant had met its "heavy burden of proving enforcement would be unreasonable under the circumstances." (Hunt, supra, 81 Cal.App.4th at pp. 907-908, fn. 4.) Both the public and private interest factors in this case, and all the relevant circumstances, weighed in favor of rejecting this claim that California is an inconvenient forum for resolution of this case. We are aware that litigation has been proceeding in Belgium while the stay was in effect, but we nevertheless believe that this record requires us to reverse the order with directions to lift the stay and conduct such further proceedings as may be appropriate to assure that California remedies remain available according to the current status of the case.
DISPOSITION
The order is reversed and the matter is remanded with directions that the trial court vacate the order staying plaintiff's action and issue a new order denying defendant's motion in its entirety, and allowing further appropriate proceedings. The judicial notice request is denied. Costs on appeal shall be paid by defendant.
WE CONCUR: McCONNELL, P. J., IRION, J.