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Filed 11/21/23 Astone v. Global Mortgage Group CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ANTHONY ASTONE, Plaintiff and Appellant,

v. GLOBAL MORTGAGE GROUP, LLC, Defendant and Respondent. A166858
(Contra Costa County Super. Ct. No. C22

- 01745)

Anthony Astone appeals from a trial court order under Code of Civil
Procedure section 410.30 (section 410.30) staying his lawsuit against Global Mortgage Group, LLC, d/b/a MoXi ( MoXi), based on a forum

- selection clause in a loan agreement requiring claims that “result from” the agreement or a related trust agreement to be litigated in Mexico

. We agree with Astone that
the clause does not apply to his claims against MoXi because they did not result from the loan or trust agreement s

. 1 We therefore reverse the stay order and remand for further proceedings

.

1 As a result of this conclusion, we need not address Astone’s numerous other arguments for reversal, including that MoXi lacks standing to enforce the forum

- selection clause and that the loan agreement was subsequently rescinded

.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND This case arises from a real estate transaction gone wrong , and it highlights t he peril s of I nternet fraud

. Around Janu ary 2022, Astone, a California resident, entered a purchase and sale agreement (purchase agreement) with a n individual seller to buy real property in Cabo San Lucas,
Mexico. 2 The purchase price was $345,900, including “an initial earnest money deposit of $35,340 .” Astone’s real estate agents had referred Astone to MoXi, a Delaware limited liability company , “to [use] as the lender ” for the transaction. The purchase agreement p rovided that it was “ contingent upon [Astone’s] obtaining financing

. . . through MoXi , ” and it also stated that MoXi would

“ ‘handle the closing’ ” of the transaction. The purchase agreement itself is
not in our record. Soon after entering the purchase agreement, Astone wired the earnest money deposit to the seller and applied for a loan through MoXi. He was approved for a loan of $172,400, to be repaid over 25 years at an interest rate of 8.19 percent

. The lender was a Mexican co mpany that Astone alleges is

“ an affiliate” of MoXi

. MoXi was to set up a trust in which the property
would be held until the loan was paid , with the lender as the primary beneficiary and Astone as the secondary beneficiary. As the date for Astone to appear in Mexico to sign the closing documents approached, he still had not received either an estimated closing

statement , identifying the amount he needed to deposit into escrow , or wire instructions for the deposit. On April 1 1, 2022, he sent an email requesting

2 We draw most of the und erlying facts from the allegations of Astone’s complaint.3

these materials to two MoXi employees with whom he had been communicating. The next morning, he received an email purporting to be from one of the employees , Divina Espinoza Sauceda (Espinoza) , instructing
him to wire $164,004.04 to a n account at PNC Bank. In fact, MoXi’s email server had been hacked, and the email was fraudulent and sent from a
different domain than MoXi’s

. Later on April 12, Astone wired the full $164,004.04 to the PNC Bank
account. He then receiv ed a message from the fraudulent email account confirm ing the wire transfer. Astone forwarded the confirmation email to the correct email address for the other MoXi employee with whom he had been corresponding , who responded positively and “gave no indication that the [money] had actually not been received by the proper escrow account.” Later that day, Astone received a copy of the escrow agreement for the first time,
but it did not include the wire instructions. On April 18, Astone a rrived in Mexico to sign the closing documents , having still not received any “communication from MoXi or escrow that [his] deposit had not been received.” The next day, he executed all the necessary closing documents. The complaint alleges that “MoXi dr afted all of the closing documents, including

. . . the loan documents, trust establishment documents, [and] title transfer and vesting document s[,] and arranged for the trustee for the trust holding title to the [p]roperty.” One of the documents Astone signed was an agreement between him
and the lender entitled “Opening of Credit Line for Loan Agreement” (loan agreement)

. Astone signed the loan agreement on his own behalf, and Espinoza signed it as “attorney

- in

- fact” for the lender. MoXi was not a part y
to this contract

.4

Th is loan agreement contains the forum

- selection clause at the center of this case. The clause, which is translated from the original Spanish , states as follows (all errors in original) :

“SEVENTH

. - GOVERNING LAW AND VENUE. The LOAN AGREEMENT and the TRUST AGREEMENT [ 3 ] shall be governed by and construed to in accordance to the applicable norms and regulations in the United Mexican States. The Parties hereby submit themselves to the jurisdiction of the competent courts in the Me xico City, in the United Mexican States, in connection with any dispute, claim or legal procedure which may result from such agreements, waiving to any other jurisdiction to which they may be entitled to due to their present or future domiciles or for any other reason.” On April 20 , Espinoza notified Astone that the real estate transaction
could not close because the escrow account had not received his deposit.
Astone immediately contacted law enforcement and unsuccessfully attempted
to reverse the wire transfer. MoXi told Astone that the transaction would be terminated unless he paid the $164,004.04 balance, which he was unable to
do. Although Astone “attempted to work with the [s]eller to cancel the transaction and obtain his initial deposit back ,” Mo Xi “insist[ed] that it, and all of its affiliates, be provided with a full release from [him] before the
transaction could be cancelled , ” and he was unable to recover his initial deposit either

. Astone filed this suit against MoXi and PNC Bank in August 2022. 4 He alleged causes of action against MoXi for breach of fiduciary duty, professional negligence, fraud, and constructive fraud. MoXi responded by

3 The loan agreement does not define “TRUST AGREEMENT,” but the term presumably refers to an agreement establishing the tr ust in which the property was to be held. We will refer to this agreement as the trust agreement, although n o such document appears in our record.

4 PNC Bank is not a party to this appeal.5

filing a motion to stay or dismiss the action under section 410.30 based on the loan agreement’s forum

- selection clause

. Astone opposed the motion on
several grounds, including that the clause did not apply to his claims against
MoXi. After a hearing, the trial court granted MoXi’s section 410.30 motion and stayed the action as to MoXi “pending reso lution of [Astone’s] claims by a Mexican court.” Having determined that MoXi had standing to enforce the forum

- selection clause even though it was not a party to the loan agreement , the court then concluded that the clause encompassed Astone’s claims
beca use of the clause’s perceived expansive breadth :

“[T] he phrase ‘which may result from such agreements’ is not so limited as to apply only to those claims that rely on interpretation of the agreements. Plaintiff’s relationship with [MoXi] is a ‘result from ’ the agreements at issue. Plaintiff was referred to [MoXi] to assist with the purchase of the [p] roperty and [MoXi] would not have any relationship with Plaintiff but

- for the [l]oan [a]greement and other document[s] surrounding the sale of the [p] roperty . As noted at length above, [MoXi] had a signifi cant relationship with Plaintiff and the transactions at issue.

“ For example, the Complaint alleges that [MoXi] owed Plaintiff a fiduciary duty

. . . because it acted as ‘Plaintiff’s mortgage broker and rea l estate closing agent.’ [Citation omitted.] This relationship, however, only comes into existence due to [ the l]oan [a]greement relating to the purchase/sale of the [p]roperty. Without these agreements, [MoXi] would have no[] relationship at all with P laintiff[]. Thus, the claims [which] ‘result from’ the attempted purchase of the [p]roperty all fall within the scope of the [loan a]greement.”6 II. D ISCUSSION
A. General Legal Standards Section 410.30, subdivision (a), authorizes a court to “stay or dismiss the action in whole or in part on any conditions that may be just” when it “finds that in the interest of substantial justice [the] action should be heard in a forum outside [Californi a].” Thus, the statute “codifies the doctrine of forum non conveniens,” which “ ‘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 th e action may be more appropriately and justly tried elsewhere.’ ” ( Grove v. Juul Labs, Inc. (2022)
77 Cal.App.5th 1081, 1090 ( Grove ).) A motion under section 410.30 “is a proper vehicle for enforcing a forum
selection clause ” in a contract. ( Grove , supr a , 77 Cal .App.5th at p. 1090 ; Lu v. Dryclean

- U.S.A. of California, Inc. (1992) 11 Cal.App.4th 1490, 1492, fn. 1 .) “ ‘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 .’ ” ( Grove , at p. 1090.) Generally, w e review a trial court’s ruling enforcing a for um
- selection clause for an abuse of discretion. ( Grove , supra , 77 Cal.App.5th at p. 1090; Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 446 .) Under this standard, reversal is unwarranted unless “ ‘the ruling made “ ‘exceed[ s] the bounds of reason,’ ” all circumstances before [the court] being considered.’ ” ( Quanta Computer , at p. 447.) H ere, however, the only issue we need resolve is the scope of the forum

- selection clause, a question of contract interpretation that we re view de novo. (See Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 4 6 6, 471 ; Intershop Communications AG v. Superior Court (2002) 104 Cal.App.4th 191, 196 .)7

B. The Forum

- s election Clause Does Not Apply to Astone’s Causes of Action Against MoXi.
Astone argues that the trial court erred by concluding the forum

selection clause encompasse s his claims against MoXi. We agree. Initially, we note that the loan agreement prov ides that it “ shall be governed by and construed to in accordance to the applicable norms and regulations in the United Mexican States .” The parties do not mention this
choice

- of

- law provision, much less argue t hat it affects our analysis of the forum

- selection clause ’s scope. As a result, we wil l assume that the result is
the same whether we interpret the loan agreement under California law or Mexican law.

“ ‘ In interpreting an unambiguous contractual provision we are bound to give effect to the plain and ordinary meaning of the language used by the parties.’ [Citation.] Thus, where ‘ “contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further.” ’ ” ( People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 524.) Ultimately, our goal “ ‘is to determine and give effect to the mutual intention of the parties ,’ ” which “ ‘is to be inferred, if possible, solely from the written provisions of the contract.’ ” ( Id. at p. 525.) Here, neither part y contends that the forum

- selection clause is ambiguous in scope , and no extrinsic evidence has been offered on the clause’s meaning. Accordingly, we focus on the language of the clause itself.
The for um
- selection clause applies to “ any dispute, claim or legal procedure which may result from such agreements , ” i.e., the loan and trust agreement s

. We agree with Astone that his claims against MoXi did not “result from” the loan and trust agreement s within the ordinary meaning of
that phrase

. The money out of which Astone was defrauded was his own deposit into escrow, not the loan mone y, and MoXi’s alleged failure to take8

pro per security precautions or discover and inform him that he sent the money to the wrong account occurred before he even entered into the loan agreement. Although we agree with MoXi that a forum

- selection clause is not necessarily inapplicable simply becau se the allegedly tortious conduct happened before the contract at issue was signed , there still must be some relationship between the pre
- contract conduct and the contract. Here, the fact that Astone needed a loan to complete the property purchase had no bearing on t he events underlying his claims against MoXi. In concluding that the forum

- selection clause applied, the trial court determined that Astone’s “relationship with [MoXi ] is a ‘result from’ the agreements at issue” because MoXi “would not have a n y relationship with [Astone] but

- for the [l]oan [a]greement and other document[s] surround ing the sale of the [p]roperty.” But the forum

- selection clause applies only to legal cl aims that “result from” the loan and trust agreement s, not to those that result from other documents involved in the real estate transaction. And MoXi’s relationship with Astone clearly predated th e loan and trust agreements . Indeed, the relationship was established in the purchase agreement , which provided that Astone would obtain financing through MoXi and MoXi would handle the transaction’s closing. If the forum

- selection clause also referred to the purchase agreement, we might agree with the

court ’s conclusion . But it does not. The court gave the clause too expansive of a reach by conflating the loan and trust agreement s with the other
documents involved in the real estate transaction

. We also disagree with MoXi that Astone’s relationship with it “r esult[ed] from” the loan agreement because his “only connection to MoXi was through the purchase of the property, which would not have occurred
without the [l]oan [a]greement.” N othing in the record establishes that MoXi9

would not have participated in the real estate transac tion if Astone had n ot needed a loan. A s MoXi recognizes, it acted not just as his mortgage broker but also as his closing agent

. And as discussed above, MoXi’s allegedly
tortious conduct occurred in connection with the latter role , not the former

. Mor eover, even if Astone could not have purchase d the property without obtaining a loan, we agree with him that it would lead to absurd
results to conclude that any claim related to the real estate transaction therefore “result[ed] from ” the loan agreement. Under such an interpretation, the forum

- selection clause would cover any claim Astone had against any entity or individual with whom he would not have had a relationship but for the transaction

. This stretches the contractual language too far. In short, Astone’s claims against MoXi did not “result[] from” the loan agreement or trust agreement, meaning that the forum

- selection clause does not apply to those claims. As a result, the trial court was mistaken in staying
th ose claims under section 410.30.
III. D ISPOSITION The order staying the action as to Mo Xi is reversed, and the matter is remanded for further proceedings. Astone is entitled to his costs on appeal.10 _________________________ Humes, P.J.

WE CONCUR:

_________________________ Margulies, J.

_________________________ Banke, J.

Astone v. Global Mortgage Group
, LLC A166858