1

Filed 6/23/23 Saba v . Princess Cruise Lin e s CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion h as not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

GEORGE A. SABA, Plaintiff and Appellant,

v. PRINCESS C RUISE LINES, L TD., Defendant and Respondent. E079654 (Super.Ct.No. CVR I 2201832)
OPINION

APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed. George A. Saba, in pro. per, for Plaintiff and Appellant.
Gor don Rees Scull y Mansukhani, André M. Picciurro and Andrea K. Williams for Defendant and Respondent.2

Plaintiff and appellant George A. Saba (Saba) appeals from an order dismissing his complaint against defendant and respondent Princess Cruise Lines, Ltd. (P rincess) 1
base d on a forum selection clause included in the agreement between the parties. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS Princess is a Bermuda corporation with its principal place of business and base of operations in Sa nta Clarita, Cal ifornia. Saba is a Princess customer , who has cruised on its ships “ at least 23 times” and earned the “ ‘ Elite ’ ” passenger status. On June 7, 2021, Saba booked a cruise for himself and his wife aboard Majestic Princess departing from
Los A ngeles on Decemb er 4, 2021. P rincess’ b ooking c onfirmation form was sent to Saba

on June 7, August 13 , and November 3, 2021. It includes the following language:

“ IMPORTANT NOTICE : Upon booking the Cruise, each Passenger explicitly agrees to the terms of the Passage Co ntract ( www.princess.com/legal/passage_contract/index.jsp ). Please read all sections carefu lly as they affect the passenger’s legal rights.” On or about June 19, 2021, Saba’s wife was diagnosed with Guillain

- Barre Syndrome (GBS) , which caused her to be paralyzed from the waist down. On October 21, 2021, Saba e

- mail ed Kreykes, a Princess agen t and cruise vacation planner, asking to cancel “the December 4 cruise and book in 2022,” a nd to apply th e money paid to the

1 Saba references defendant Melissa Kreykes as a respondent throughout his opening brief. However, the record does not reflect that Kreykes has ever appeared in this action. Rather, Saba obtained a defaul t against her on August 3, 2022. Princess alone moved to dismiss Saba’s complaint. Also, Saba designated Does 1, 2, and 3 as Jan Swartz, Gordon Ho, and Dana Berger, respectively.3

2022 cruise. Kreykes honored Saba’s request, but on November 2, 2021, at 2:08 p.m., he asked her to cancel the December 2022 cruis e and return their (Saba and his wife) deposit. In response, Kreykes informed him that bec ause he did no t have “ Princess Vacation Protection ,” he would incur a cancelation penalty in the form of a partial fare forfeiture and refund of the remaining, nonpe nalty amount. However, the “Cruise with Confidence” or “Book with Confidence” policy allow ed the cancela tion penalty to be converted into future cruise credits (FCCs) to be used for a future cruise. Kreykes included the link to the website that covers th e “ Cruise w ith Confidence ” policy ( “https:// www.princess.com/ plan/cruise

- with

- confidence/cancellation

- final payment

- policy/ ” ). Shortly thereafter, Saba responded: “Freda still refuses to pay any cancellation fees. [¶] She decided to crui se as schedule d on 12/4/21 so do not cancel this cruise and asked me to push her wheelchair during the cruise. [¶] Meanwhile, please refer the matter to your customer service.” Saba spoke with Kreykes, with a confirming e

- mail on November 3, 2021, and i nstructed her to reactivate the December 4, 2021 cruise , so they would not i ncur any cancelation fee. Kreykes again honored Saba’s request, but two hours later, he informed her that “next month’s cruise is too close” for his wife to travel; thus, he wante d a cruise in “May or June 2022,” if any were available

. Saba and his wife did not board the December 4, 2021, cruise

. On May 4, 2022, Saba initiated this action in the Superior Court of Riverside County against Princess and Kreykes for , inter alia, brea ch of contract , fraud, and negligen t misrepresentation, arising out of defen dants’ alleged refusal to refund Saba’s money in the amount of $1,400 after h e canceled his December 4, 2021 cruise because of4

his wife’s sudden illness . He allege s th e defendants breached the i r agreement with him and misrepresented Princess’ “ Cruise with Confidence ” policy.
Princess moved to dismiss the action pursuant to Code of Civil Procedure 2 sections 410.30, subdivision (a) and 418.10, subdivision (a)(2), based on the foru m selection cl ause within the p assage c ontract . On August 10 , 2022 , ov er Saba’s opposition, the trial court granted the motion and dismissed the case without prejudice

. II. DISCUSSION “When a court upon motion of a party . . . finds that in the interest of substantia l justice an action should be heard in a forum outside th is state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (§ 410.30, subd. (a).) Section 418.10 permits a defendant to file a motio n to dismiss a n action on the ground of inconvenient forum. (§ 418.10, subd. (a)(2) ; Cal

- State Business Products &
Services , Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680 [ forum selection clause enforced via a motion pursuant to Code Civ. Proc. , §§ 410.3 0 and 418.10 ]. ) “There is a split of authority regarding the appropri ate standard of review on whether a forum selection clause should be enforced through a motion to dismiss for forum non conveniens.” ( Quanta Computer Inc. v. Japan Communications Inc

. (2018) 21 Cal. App.5th 438, 446.) “The majority of cases apply the abus e of discretion standard, not the substantial evidence standard.” ( Korman v. Princess Cruise Lines , Ltd . (2019)

2 All further statutory references are to the Code of Civil Procedure unle ss otherwise i ndicated.5

32 Cal.App.5th 206, 214, fn. 6 ( Korman ). ) We need not resolve that disp ute here becau se the trial court correctly granted Princess’ motion under either standard.
A

. The Trial Court Properly Granted the M otion to D ismiss. Saba contends Princess failed to sustain its burden of proof because it failed to submit any admissible evidence that the forum selection clause was reasonably

comm unicated to him. He claims that “Princess never served [him] with the Passage Contract and [he] was never aware of the existence of one.” He further contends the case law relied upon by Princes s does not app ly because he disputes being served with , or

re ceiving, the p assage c ontract or a ticket packet containing a p assage c ontract , he never boarded a Princess vessel, he did not suffer injuries on the high seas, and he never entered an agreement with Princess stating that disputes would be settled in a “ Lo s Angeles District Court

. ” We reject Saba’s contentions. In support of its motion, Princess offered the declaration of its Director of Claims Management, Dana Berger , who oversees and manages c laims and liti gation against Princess. She stated that she reviewed Saba’s booking history and found that he booked a cruise for himself and his wife on June 7, 2021, and was assigned a unique booking
No. 2D9L8T. Berger produced the document list for Sab a , which ident ified the various documents ( including the booking confirmation ) that were sent to him via his e

- mail address ( gsaba001@gmail.com )

. The booking confirmation instructed Saba to c arefully review the pa ssage contract , which contains the forum selection clause. Berger provided a copy of the booking confirmation form which states : “ IMPORTANT NOTICE : Upon booking the Cruise, each Passenger explicitly agrees to the terms of the Passage6

Contract ( www.princess.com/legal/passage_contract/index.jsp ). Please read all sections carefu lly as they affect the passenger’s legal rights.” T he website i nstructs guests to carefully read the terms of the passage contract that govern all dealings between them and
Princess. 3 Section 17(B) of the passage contract is entitled , “Forum and Jurisdi ction for Legal Action

. ” In relevant part, it provides: “ i. Claims for Injury, Illness or Death : All clai ms or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever,

. . . shall be litigated in and before the Uni ted States District Court for the Central District of California in Los Angeles, or as to those lawsuits over which the Fed eral Courts of the United States lack subject matter jurisdiction, before a court located in Los Angeles County, California, U.S.A., to the exclusion of the courts of any other country, state, city, municipality, county or locale. You consen t to jurisdict ion and waive any objection that may be available to any such action being brought in such courts. [¶] ii. All Other Claims; Agree ment to Arbitrate : All claims other than for Emotional Harm, bodily injury, illness to or death of a Guest, whether based on contract, tort, statutory, constitutional or other legal rights, including without limitation alleged violations of civil

3 In re levant part , the instruction provide s : “ IMPORTANT NOTICE TO GUESTS: PLEASE CAREFULLY READ THE FOLLOWING PASSAGE CONTRACT TERMS THAT GOVERN ALL DEALINGS BETWEEN YOU AND THE CARRIER (DEFINED BELOW) , AFFECT YOUR LEGAL RIGHTS, AND ARE BINDI NG ON YOU TO THE F ULL EXTENT PERMITTED BY LAW; PARTICULARLY . . . SECTION 1 7 LIMITING YOUR RIGHT TO SUE, IDENTIFYING THE FORUM FOR SUIT, REQUIRING ARBITRATION AND WAIVER OF JURY TRIAL FOR CERTAIN CLAIMS, AND WAIVING YOUR RIGHT TO ARREST OR AT TACH CARRIER’S VESSELS . ”7

rights, discrimination, consumer or privacy laws, or for any losses, damages or expenses, relating to or in any way a rising out of or connected with this Passage Contract or Guest ’ s cruise, with the sole exception of claims brought and litigated in small claims co urt, shall be referred to and resolved exclusively by binding arbitration

. . . located in the County of
Los Angeles, Calif

ornia, U.S.A. to the exclusion of any other forum.

. . . You consent to jurisdiction and waive any objection that may be available to any such arbitration proceeding in Los Angeles County. . . .” Saba objected to Berger’s declaration ( and attached exhib its ) on the grounds of lack of foundation/no personal knowledge and inadmissible hearsay. The trial court overruled his objections without any explanation or comments

. “‘“ In general, the trial court is vested with wide discretion in determi ning relevance and in weighing the prejudicia l effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal absent an abuse of that discretion. ” ’” ( Willis v. City of Carlsbad (20 20 ) 48 Cal. App. 5th 1104, 1132.) O n appeal, Saba does not argue the trial court abused its discretion in overruling his objections to Berger’s declaration ; rather, he reiterates them

. Because Saba fails to challenge the court’s ruling, he has forfeited any issue regarding this claim. ( Fr ittelli , Inc. v. 350 North Canon Drive , LP (2011)
202 Cal.App.4th 35, 41 ; Lopez v. Baca (2002) 98 Cal.App.4th 100 8 , 1014

- 1015 [a ny issues concerning the correctness of the trial court ’ s evidentiary rulings are waived when appellant fails to raise challenge ].)8

Conse quently , Berger’s declaration constitutes admissible evidence that the forum
selection clause in the passage contract was reasonably communicated to Saba via booking confirmation e

- mails

. Although he argues he was never served with such

c ont ract, he does not deny having had an opportunity to read it. Saba need not have read the c ontract to be on notice of its terms. If the surrounding circumstances indicate that the passage contract was reasonably communicated to him, then he is deemed on n otice of its t erms. ( Walker v. Carnival Cruise Lines (N.D.Cal. 1999) 63 F.Supp.2d 1083, 1087.)

“ ‘ A passage contract on a cruise ship is a maritime contract, and its interpretation is governed exc lusively by maritime or admiralty law. [Citations.] The v alidity of a
p assage contract provision is to be interpreted by the general maritime law of the United States, not state law. ” ( Korman , supra , 32 Cal.App.5th at p. 215 ; see Wallis ex rel. Wallis v . Princess Cruises , Inc . (9th Cir. 2002) 306 F.3d 827, 834 [“A cruise lin e passage contract is a maritime contract governed by general federal maritime law.”]. ) Again, b y booking the Princess cruise , Saba and his wife ( g uests of Princess) agreed to the terms of th e p assage c ontract , including the requirement that “ resolution o f any and all disputes between [ Princess] and any Guest [(Saba and his wife)] shall be governed exclusively and in every respect by general maritime law of the United States , ” and t hat “ [a]ll claims or disputes . . . shall be litigated in and before the Un ited States District Court for the Central District of California in Los Angeles, or

. . . before a court located in Los Angeles County.” Because the p assage c ontract defines , “You ,” Your , ” and “Guest , ” as “the9

person(s) booking or purchasin g the Cruise,” Saba’s act of booking the cruise subjected
him to the forum selection clause ; there was no requ irement that he or his wife board the cruise ship.

“ A forum

- selection clause is prima facie valid and is to be enforced unless the resisting pa rty shows enfo rcement would be unreasonable under the circumstances. ” ( Benefit Ass ’ n Internat. v. Superior Court (1996) 46 Cal.App. 4 th 827, 835 .) Saba failed to pres ent any justification for ignoring the clause. Thus , the trial court properly enforced
i t by dismissin g his action.
B

. The T rial C ourt P roperly D ismissed th e A ction as to A ll D efendants. Saba contends the trial court erred in dismissing this action as to Kreykes and Doe defendants Swartz, Ho, and Berger

. We disagree. First, Saba argues t hat Kreykes wa s his travel advisor , and the p assage c ontract equates such advis o r as his “agent , ” who act s for him in making the arrangements for the cruise. The evidence shows , and Saba concedes via his verified complaint, that Kreykes

was Princess’ agen t and employee ; her title was cruise vacation planner . There is no evidence to support Saba’s claim that she was a trav el advisor or that the p assage

c ontract’s reference to a travel advisor was directed at Princess’ cruise vacation planner. Second, Saba asserts the t rial court could not dismiss his action as to Kreykes because her default was entered seven days prior to the court’s ruling on the motion to dismiss

. However, Saba offers no support for this proposition other than his “belief” that “where a
default of a defendant has been entered then the trial court loses all jurisdiction except10

one , jurisdiction to entertain and rule on the defaulted defendant’s motion to set aside default.” With no authority to support his proposition, we reject it.
F inally, Saba a rgues th at since Kreykes and the other individual defendants were not parties to th e p assage c ontract or named as moving parties in Princess’ motion to dismiss, the trial court erred in dismissing the action as to them. Not so

. The individu al defendants were employed by Princess. Saba booked a cruise with Princess , and the
p assage c on tract contained an enforceable forum selection clause. Because the p assage

c ontract (including the forum selection clause) existed between Saba and Princess, it follows tha t it (including the forum selection clause) also applies to Princess’ employees , wh o were its agents and closely involved in the ir employer’s contractual relationship with Saba

. ( Huong Que , Inc. v. Luu (2007) 150 Cal.App.4th 400, 41 4 [agency encompasses
t he employment relationship]; Manetti

- Farrow , Inc. v. Gucci America , Inc . (9th Cir. 1988) 858 F.2d 509, 514, fn. 5 [“ ‘ [A] range of transaction participants, parties and non

parties, should benefit from and be subject to forum selection clauses

. ’ ” ] ; Lu v. Dr yclean

U.S.A. of California , Inc. (1992) 11 Cal.App.4th 1490, 1494 [the fact that a defendant did not sign the agreement containing the forum selection clause does not render the clause unenforceable as to them].) “ To hold otherwise would be to permit a p laintiff to sidestep a valid forum selection clause simply by naming a closely related party who did not sign the clause as a defendant .” ( Lu v. Dryclean

- U.S.A. of California , Inc ., supra , at p. 1494 .)
C

. The Passage Contract

. Alternative ly, Saba seeks to evade application of the forum selection clause by both attacking the terms in the passage contract and arguing the clause is a contract of11

adhesion . He co ntends that because the term “dealings” was not defined in the p assage

c ontract , i t is vague , am biguous, and requires the c ontract be interpreted most strongly against Princess. We disagree. Dealings is defined as “ friendly or business transaction s .” ( See < https://www. merriam

- webste r.com/dictionary/dealing > [as of June 2 3 , 2023].) .) We ap ply t his dictionary definition and consider the use of the word in the context of the entire p assage c ontract. The contract begins by stating that its terms govern all “dealings
betw een you and [P rincess] , ” and then proceeds to address various issues that may arise from booking the cruise to being onboard the ship. Mindful of its dictionary definition, the use of “dealings” includes Saba’s booking the cruise , which nece ssitated the p assage
contrac t . We do not agree that the word is vague or ambig u ous. Saba further contends that the forum selection clause is a contract of adhesion that is also unconscionable. Again, w e disagree

. “ ‘ A forum selection clause need not be subject to neg otiation to be enforceable. [Citations.] Rather, a forum selection clause contained in a contract of adhesion, and thus not the subject of bargaining, is

“ enforceable absent a showing that it was outside the reasonable expectations of the

w eaker or adher ing party or t hat enforcement would be unduly oppressive or unconscionable. ” [Citations.] ’ [Citation.] ‘ This rule “ accords with ancient concepts of freedom of contract and reflects an appreciation of the expanding horizons of American

cont ractors who se ek business in all parts of the world. ”’ ” ( Korman , supra , 32 Cal.App.5th at pp. 216

- 217 .) A forum selection clause “ ‘ is considered unreasonable where “ the forum selected would be unavailable or unable to accomplish substantial justice ” or there is no “ ra tional basis ” for the selected forum

. ’ ” ( Id. at p. 218.)12

Here, Saba has presented no evidence that enforcement of the forum selection clause would be unreasonable on either of these bases. Rather, he argues that the p assage

c on tract “did not fall within [his] reasonab le expectations who is the weaker or ‘adhering’ party,” and “it is unduly oppressive and ‘unconscionable.’” He further asserts that “Princess failed to provide [him] with a plain and clear notification of the Passa ge Contract and failed to s how an underst anding consent by [him].” We find none of these

ar guments meritorious.
III. DISPOSITION The order granting the motion to dismiss is affirmed. Respondent is entitled to costs on appeal.
NOT TO BE PUBLISHED IN OF FICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

RAPHAEL J.