Filed 10/7/24



### CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KENNETH W. LATHROP et al.,

Plaintiff s and Appellant s

,

v.

THOR MOTOR COACH, INC.

, et al.,

Defendant s and Respondent s

. B 3 31970

(Los Angeles County Super. Ct.

No. 2 2NWCV01494 )

APPEAL from an order of the Superior Court of

Los Angeles County, John A. Torribio, Judge. Reversed with

directions

. Lawrence J. Hutchens and Shay Dinata

- Hanson for

Plaintiff s and Appellant s

. Horvitz & Levy, Lisa Perrochet, Shan e H. McKenzie

, and

Claire W. Sears ; Bravo Law Group, Dolores E. Gonzales and

James R. Robertson, for Defendants and Respondents

.2 INTRODUCTION

Kenneth and Jane t Lathrop bought a motorhome

manufactured by Thor Motor Coach, Inc. from a dealer in

California. The Lathrops sued the dealer and Thor under the

Song

- Beverly Consumer s Warranty Act ( Civ

. Code

, § 1790 et seq. ) 1 and the Consumer Legal Remedies Act (CLRA)

( § 175 0 et seq

. )

. Thor filed a motion under Code of Civil

Procedure section 410.30 to stay the action based on a forum

selection clause in Thor’s warranty designating Indiana as the

exclusive forum. The warranty also stated that the Lathrops

waived their right to a jury trial and that Indiana law would

govern all disputes.

Thor acknowledged that the jury trial waiver was

unenforceable under California law and that the choice

- of

- law

clause was unenforceable because any waiver of the provisions of

the Song

- Beverly Act or the CLRA was contrary to public policy.

To address these problem s

, Thor offered to stipulate the

substantive provisions of the Song

- Beverly Act and the CLRA,

and “ all other unwaivable California substantive rights ,” would

apply in an Indiana court. The trial court granted the motion to

stay , and the Lathrops appealed

.

We conclude that the trial court erred in placing the burden

on the Lathrops to show enforcing the forum selection clause was

unreasonable and that Thor did not meet its burden to show

litigating in Indiana would not substantially diminish the

Lathrops’ rights in violation of public policy

. We also conclude

that enforcing the forum selection clause in reliance on Thor’s

1 Undesignated statutory references are to the Civil Code.3 proposed stipulation would violate California public policy and

that, even if it didn’t, Thor’s proposed stipulation was insufficient

to protect the Lathrops’ unwaivable statutory rights. T herefore,

we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Lathrops Purchase a Motorhome Manufactured

by Thor

In May 2021 t he Lathrops bought a new Thor motorhome

for $ 212,391.78 from Mike Thompson RV in Santa Fe Springs,

California. The Lathrops made a $20,000 downpayment and

signed a retail installment sales contract for the balance

. T he

Lathrops also signed a two

- page Thor Motor Coach Product

Warranty Registration Form (Warranty Registration Form). The

second page stated: “ IMPORTANT! The purchaser(s) and

selling dealership signatures below indicate their understanding

and acceptance of [Thor’s] terms and conditions

. . . . ” Below that

statement were n ine bullet points

, includ ing :

• Before I purchased my motorhome, I received, read and

agreed to the terms and conditions of the Thor Motor

Coach Limited Warranty and the Thor Motor Coach

Structural Limited Warranty. I understand I can read

and print a copy of the Owner ’ s Manual and Limited

Warranties from the Thor Motor Coach website.

• I understand and agree to the forum selection clause

and choice of law clause set forth in the Thor Motor

Coach Limited Warranty and the Thor Motor Coach

Structural Limited Warranty.4 • I AGREE THAT ANY AND ALL ACTIONS OF ANY

KIND RELATED TO OUR MOTORHOME SHALL

BE DECIDED BY A JUDGE RATHER THAN BY A

JURY.

• I UNDERSTAND THAT EXCLUSIVE

JURISDICTION FOR DECIDING LEGAL

DISPUTES RELATING TO ALLEGED BREACH OF

EXPRESS WARRANTY AND IMPLIED

WARRANTIES THAT ARISE BY OPERATION OF

LAW AS WELL AS THOSE RELATING TO

REPRESENTATIONS OF ANY NATURE RESTS IN

THE COURTS WITHIN THE STATE OF

MANUFACTURE, WHICH IS INDIANA.

One week later , the Lathrops picked up their motorhome at

Mike Thompson RV and received an owner ’ s manual and a

16

- page Warranty Guide. 2 Included in the Warranty Guide was

a four

- page Thor Motor Coach Limited Warranty (Limited

Warranty) . The Limited Warranty

, under the heading “Legal

Remedies

, ” contained forum selection and choice

- of

- law

provisions :

EXCLUSIVE JURISDICTION FOR DECIDING

LEGAL DISPUTES RELATING TO ALLEGED

BREACH OF EXPRESS WARRANTY AND BREACH

OF IMPLIED WARRANTIES ARISING BY

OPERATION OF LAW AS WELL AS THOSE

RELATING TO REPRESENTATIONS OF ANY

2 T he two

- page Warranty Registration Form the Lathrops

received and signed one week earlier “originates from” the

Warranty Guide, but the dealer photocopied it and presented it to

the Lathrops as a separate document.5 NATURE MUST BE FILED IN A STATE OR

FEDERAL COURT WITHIN THE STATE OF

MANUFACTURE, WHICH IS INDIANA. ALSO, THIS

LIMITED WARRANTY SHALL BE INTERPRETED

AND CONSTRUED I N ACCORDANCE WITH THE

LAWS OF THE STATE OF INDIANA. ANY AND ALL

CLAIMS, CONTROVERSIES AND CAUSES OF

ACTION ARISING OUT OF OR RELATING TO THIS

LIMITED WARRANTY, WHETHER SOUNDING IN

CONTRACT, TORT, OR STATUTE, SHALL BE

GOVERNED BY THE LAWS OF THE STATE OF

IN DIANA, INCLUDING ITS STATUTE OF

LIMITATIONS , WITHOUT GIVING EFFECT TO ANY

CONFLICT

- OF

- LAW RULE THAT WOULD RESULT

IN THE APPLICATION OF THE LAWS OF A

DIFFERENT JURISDICTION.

B. The Lathrops File This Action

, and the Trial Court

Grants Thor ’ s Motion T o Stay

I n December 202 2 the Lathrops filed this action against

Thor, Mike Thompson RV, and U.S. Bank National Association

( the assignee of the sales contract)

. The Lathrops alleged the

defendants violated the Song

- Beverly Act by not perform ing

necessary repairs to correct defects in the ir motorhome within a

reasonable time or in a reasonable number of attempts and by

not return ing the Lathrops ’ money or replacing the motorhome.

The Lathrop s also alleged Thor violated the CLRA by inserting

an unconscionable provision in the Limited Warranty and by not

providing the Limited Warranty at the time of sale.6 Th or filed a motion ( joined by the other defendants ) under

Code of Civil Procedure section 410.30 to stay the action on the

ground of inconvenient forum. Thor argued the forum selection

clause in the Limited Warranty required the Lathrops to file any

action for breach of warranty in Indiana. Acknowledging a

buyer ’ s rights under the Song

- Beverly Act and the CLRA were

“ essentially unwaivable, ” Thor stated that, to “ allay any concerns

in that regard, ” it would offer the following stipulat ion :

“ By this motion, THOR, MIKE THOMPSON

R ECREATIONAL VEHICLES, and U.S. BANK NATIONAL

ASSOCIATION stipulate that (1) the substantive provisions of

the Song Beverly Consumer Warranty Act (CA Civil Code

section 1790, et seq ) and the CA Consumers Legal Remedies Act

(CA Civil Code section 1750, et seq ), along with all other

unwaivable California substantive rights

, will apply to Plaintiffs ’

currently enumerated claims when pursued in an action a gainst

them in Indiana; and (2) these Defendants will not oppose a

request that the Indiana court utilize the Song Beverly Consumer

Warranty Act and Consumers Legal Remedies Act to adjudicate

those allegations. Further, should Plaintiffs wish, THOR, MIKE

THOMPSON RECREATIONAL VEHICLES, and U.S. BANK

NATIONAL ASSOCIATION will enter into a separate written

stipulation to that effect. ”

The Lathrops opposed the motion, arguing that the forum

selection clause was permissive, not mandatory; that they did not

freely and voluntarily agree to it; and that it was unconscionable.

The Lathrops stated they did not accept Thor ’ s stipulation offer

and argued the offer did not make the forum selection clause

enforceable.7 The trial court granted the mot ion to stay. The court found

the Lathrops signed the Warranty Registration Form, which

included a mandatory forum selection clause giving Indiana

exclusive jurisdiction over the Lathrops’ causes of action

. The

court stated the clause appeared in large, bold type “ right above

the signature line. ” The court ruled enforcing the forum selection

clause was not “ unreasonable given the circumstances of this

case. ” The Lathrops timely appealed from the order granting the

motion to stay the action

. 3

DISCUSSION

A. 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. ’” ( Verdugo v.

Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 146 ( Verdugo ) ; see

Smith, Valentino & Smith, Inc. v. Superior Court (1976)

17 Cal.3d 491, 496 ; Rheinhart v. Nissan North America, Inc.

(2023) 92 Cal.App.5th 1016, 1031 .) “ 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, 11

( America Online ) .) A court will typically enforce a forum

selection clause unless it is “ unfair or unreasonable. ” ( EpicentRx,

3 An order staying an action under Code of Civil Procedure

section 410.30 on the ground of forum non conveniens is

appealable

. (Code Civ. Proc., § 904.1, subd. (a)(3); Olinick v.

BM G Entertainment (2006) 138 Cal.App.4th 1286, 1293 , fn. 6.)8 Inc. v. Superior Court (2023) 95 Cal.App.5th 890, 899

( EpicentRx ), review granted Dec. 13, 2023, S282521 ; see Verdugo

,

at p. 147 .)

“ Nonetheless, ‘ California courts will refuse to defer to the

selected forum if to do so would substantially diminish the rights

of California residents in a way that violates our state ’ s public

policy

. ’” ( Verdugo

, supra

, 237 Cal.App.4th at p. 147 ; see

EpicentRx

, supra

, 95 Cal.App.5th at p. 899

, review granted

. )

“ The party opposing enforcement of a forum selection clause

ordinarily ‘bears the “substantial” burden of proving why it

should not be enforced.’ [Citations.] That burden, however, is

reversed when the claims at issue are based on unwaivable rights

created by California statutes. In that situation, the party

seeking to enforce the forum selection clause bears the burden to

show litigating the claims in the contractually designated forum

‘will not diminish in any way the substantive rights

afforded

. . . under California law.’” ( Verdugo

, at p. 147; accord,

EpicentRx

, at p. 900 ; Rheinhart v. Nissan North America, Inc.

,

supra

, 92 Cal.App.5th at p. 1031 .)

We review an order enforcing a forum selection clause for

abuse of discretion. ( Schmidt v. Trinut Farm Management, Inc.

(2023) 92 Cal.App.5th 997, 1006 ; Verdugo

, supra

,

237 Cal.App.4th at p. 14 8.) W e review de novo whether the trial

court applied the correct legal standard in exercising its

discretion

. ( Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th

42, 59.)9 B. Th e Trial Court Applied the Wrong Standard in

Ruling on Thor’s Motion T o Enforce the Forum

Selection Clause

The Lathrops argue the trial court erred in requiring them

to “ demonstrate that enforcement of the clause would be

unreasonable

, ” rather than requiring Thor to show litigating in

Indiana would not diminish the Lathrops ’ rights under California

law. Because their causes of action were based on unwaivable

statutory rights, the Lathrops are correct.

The Song

- Beverly Act , C alifornia ’ s lemon law, “ protects

consumers who purchase defective vehicles or other goods

. ”

( Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 800 .)

A consumer ’ s rights under the Song

- Beverly Act are unwaivable

. (See § 1790.1 [ “ Any waiver by the buyer of consumer goods of the

provisions of [ the Song

- Beverly Act ] , except as expressly provided

in this chapter, shall be deemed contrary to public policy and

shall be unenforceable and void. ” ]; Rheinhart v. Nissan North

America, Inc.

, supra

, 92 Cal.App.5th at p. 1034 [ the Song

- Beverly

Act ’ s “ antiwaiver provision is extremely broad; it is not limited to

warranties or any particular timeframe during the purchase

process, but encompasses all mandated remedies afforded to

buyers ” ].)

The C LRA “ prohibits ‘ unfair methods of competition and

unfair or deceptive acts or practices ’ in transactions involving the

sale of goods or services to any consumer. ” ( Gutierrez v. Carmax

Auto Superstores California (2 018) 19 Cal.App.5th 1234, 1249 ;

see § 1770.) Like the Song

- Beverly Act , the CLRA contains an

anti

- waiver provision . (See § 1751 [ “ Any waiver by a consumer of

the provisions of this title is contrary to public policy and shall be

unenforceable and void. ” ]; America Online

, supra

, 90 Cal.App.4th10 at p. 5 [section 1751 “ voids any purported waiver of rights under

the CLRA as being contrary to California public policy ” ].)

Therefore, i n cases brought under the Song

- Beverly Act or

the CLRA, the party seeking to enforce a forum selection clause

has the burden to show litigating in a different forum will not

diminish the plaintiff ’ s unwaivable rights. ( See Rheinhart v.

Nissan North America, Inc.

, supra

, 92 Cal.App.5th at pp. 1034

-

1035 [in a case under the Song

- Beverly Act, the automobile

manufacturer had to “ show that enforcing [a release] would ‘“ not

diminish in any way [the buyer ’ s] substantive rights

afforded

. . . under California law ” ’” ] ; America Online

, supra

,

90 Cal.App.4th at p. 11 [ “ Where the effect of transfer to a

different forum has the potential of stripping California

consumers of their legal rights deemed by the Legislature to be

nonwaivable, the burden must be placed on the party asserting

the contractual forum selection clause to prove that the CLRA ’ s

antiwaiver provisions are not violated. ” ].)

Rather than analyzing whether Thor met that burden

, t he

trial court applied the rule s applicable to enforcing a forum

selection clause where unwaivable statutory rights are not

involved

. In its order granting Thor’s motion to stay, the trial

court quoted Lu v. Dryclean

- U.S.A. of California, Inc. (1992)

11 Cal.App.4th 1490, 1493 : “‘ Given the importance of forum

selection clauses, both the United States Supreme Court and the

California Supreme Court have placed a heavy burden on a

plaintiff seeking to defeat such a clause, requiring it to

demonstrate that enforcement of the clause would be

unreasonable under the circumstances of the case. ’” The trial

court stated it would “limit its analysis to determining whether

[the forum selection clause ’ s ] enforcement is unreasonable given11 the circumstances of this case.” The court also stated: “There is

no public policy which would compel denial of a forum selection

cl ause in a contract which has be en entered into freely and

voluntarily by the parties who have negotiated at arms’ length.”

The court did not mention the Song

- Beverly Act or the CLRA ; did

not mention that those statutes provide unwaivable rights ; and

did not state that, when unwaivable rights are involved, the

defendant has the burden to show litigating in a different forum

will not diminish those rights

.

Thor tries mightily to explain away the trial court’s error

by attempting to rewrite the court’s order to say what it doesn’t

say. Thor contends that, when the court mentioned the plaintiff’s

“heavy burden,” the trial court was merely “laying out the

general principles” and that “the court did not state that, in this

case

, plaintiffs bore the initial burden.” That contention might

have had a modicum of merit had the court gone on to articulate

more specific principles that applied to this case

, but the court

did not do that

. Thor also contends the “trial court was aware

that the ‘“ burden is reversed when the claims at issue are based

on unwaivable rights created by California statutes ”’ because [the

Lathrops] emphasized that point in bold font in their trial court

briefing and defendants agreed.” But Thor, in its motion to stay,

argued the opposite : “ Because the forum selection clause in

Thor ’ s limited express warranty is mandatory and because an

Indiana court can provide the relief [the Lathrops are] seeking,

the burden falls on [the Lathrops] to demonstrate that

enforcement of the clause is unreasonable. ” Only in its reply

brief did Thor state it did “ not dispute ” the burden “ lies with a

moving Defendant. ” The trial court agreed with the argument in

Thor’s motion.12 Thor also argues it “would be improper to assume the trial

court ignored the parties’ briefs and applied an improper burden

analysis, when its discussion hinged on the defendants’

stipulation, which is the key to defendants meeting their burden

where unwaivable rights are in play.” Assuming Thor is

referring to the trial court’s written order (there is no transcript

of the hearing on the motion to stay)

, the court only briefly

m entioned the offer to stipulate and did not discuss its

significance, did not mention unwaivable rights, and did not

suggest Thor had the burden to show the forum selection clause

was enforceable.

A lthough we “ presume the trial court knew and properly

applied the law absent evidence to the contrary ” ( McDermott Will

& Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083,

1103), the trial court ’ s order granting Thor ’ s motion to stay is

clear evidence to the contrary. T he trial court erred in failing to

consider whether Thor met its burden to show litigating in

Indiana would not diminish the Lathrops’ unwaivable rights

under the Song

- Beverly Act or the CLRA

.

C. Thor Failed To Show Litigating in Indiana Would

Not Substantially Diminish t he Lathrops’

Unwaivable Statutory Rights

To meet its burden, Thor had to show an Indiana court

would provide “ the same or greater rights than California ” or

would “ apply California law on the claims at issue. ” ( Verdugo

,

supra

, 237 Cal.App.4th at p. 157.) Because the Limited

Warranty contained not only a n Indiana forum selection clause

but also a n Indiana choice

- of

- law clause, an Indiana court c ould13 enforce several terms of the Limited Warranty that would be

unenforceable under the Song

- Beverly Act

. 4

The Limited Warranty offered the Lathrops less protection

than the Song

- Beverly Act

. For example

, under the Limited

W arranty Thor could require the buy er to deliver the motorhome

to a service facility in Indiana or “ another authorized service

center or dealership for certain repairs ” ; t he Song

- Beverly Act

requires a manufacturer to provide service facilities and repair

facilities “ reasonably close to all areas where its consumer good s

are sold ” ( § 1793.2, subd. (a))

. In addition, the Limited Warranty

disclaimed consequen tial and incidental damages ; t he Song

Beverly Act allows a buyer to recover those damages ( § 1794,

subd s

. (a), (b)(2) ; Cal. U. Com. Code, §§ 2714, 2715 )

. And the

Limited Warranty provided that, if a defect is incurable, the

buyer ’ s “ sole and exclusive remedy ” is “ diminished value

damages ” ; t he Song

- Beverly Act requires a seller to replace the

vehicle or “ make restitution in an amount equal to the actual

price paid ” ( § 1793.2, subd. (d)(2) (B) ).

Given the consumer

- protection deficit between the terms of

the Limited Warranty and the Song

- Beverly Act

, Indiana did not

provide the Lathrops the same or greater rights than California

. (See America Online

, supra

, 90 Cal.App.4th at p. 15 [ forum

selection clause in a contract with a Virginia choice

- of

- law clause

was unenforceable i n a CLRA class action because “ V irginia ’ s law

provides significantly less consumer protection to its citizens

than California law provides for our own ” ]; see also Verdugo

,

supra

, 237 Cal.App.4th at p. 160 [trial court erred in enforcing

4 Indiana has a lemon law similar to California ’ s, but unlike

the Song

- Beverly Act , it does not apply to motorhomes. ( See I nd.

Code § 24

- 5

- 13

- 5

, subd. ( 4 ) .)14 Texas f o rum selection and choice

- of

- law clause s where the

employer failed “ to show the remedies Texas law provides are

‘ adequate, ’ let alone that enforcing the forum selection clause

would not diminish

, ” the employee ’ s unwaivable rights under the

Labor Code] .)

Litigating in Indiana under Indiana law would deprive the

Lathrops not only of their rights under the Song

- Beverly Act

, but

also their right to a jury trial

. Because a predispute jury trial

waiver

, such as the one in the Warranty Registration Form, is

unenforceable under C alifornia law ( s ee Grafton Partners v.

Superior Court (2005) 36 Cal.4th 944, 951)

, California courts

refuse to enforce forum selection clause s that result in a waiver of

the right to a jury trial. (See EpicentRx

, supra

, 95 Cal.App.5th at

p. 908 [ “ the trial court properly declined to enforce the forum

selection clauses because they constituted implied predispute

jury trial waivers

— waivers of an inviolate, fundamental, and

constitutionally protected right ” ] , review granted ; 5 Handoush v.

Lease Finance Group, LLC (2019) 41 Cal.App.5th 729, 741 [ “ the

trial court erred in enforcing the forum selection clause in favor

of a New York forum where the clause includes a predispute jury

trial waiver, which [ Grafton Partners v. Superior Court ] instructs

is unenforceable under California law ” ].) 6

5 T he Supreme Court granted review i n EpicentRx

, supra

, 95 Cal.App.5th 890, review granted, to decide whether a forum

selection clause is enforceable when a party’s right under

California law to a jury trial for that party’s civil claims would

not apply in the forum identified by the clause.

6 Thor argues “ the right to a jury trial is coextensive in

Indiana and in California, ” but Thor provides no authority a15 D. T hor ’ s Offer T o Stipulate Did Not Cure the Problem

1. Requiring the Lathrops To Accept Thor’s

Stipulation Would Violate Public Policy

Acknowledging Indiana does not provide the same or

greater rights than California, Thor argues “a party seeking to

enforce a forum selection clause may stipulate that California law

will apply in the new forum, which is sufficient to establish that

enforcement of the forum selection clause will not diminish a

plaintiff’s non

- waivable rights.” The Lathrops argue that,

because “Thor’s stipulation offer amounted to an evasion

of

. . . consumers’ unwaivable rights,

. . . endorsing the stipulation

itself is contrary to California public policy.” The Lathrops

contend that, if the court allows Thor to stipulate to sever clauses

Thor knows are unenforceable in California, Thor “will not be

deterred from drafting the illegal clauses in the first place.” N o

California case yet has directly address ed whether a stipulation

to apply California law renders an otherwise unenforceable forum

selection clause enforceable. We hold it does not.

Because Thor’s offer to stipulate (which the Lathrops did

not accept) was essentially a request the trial court sever the

unenforceable portions of the Warranty Registration Form and

Limited Warranty and enforce the remainder , we look to case law

governing severance of unlawful or unconscionable provisions in

a contract. (See § 1599 [“Where a contract has several distinct

objects, of which one at least is lawful, and one at least is

predispute jury waiver is unenforceable under Indiana law. (See

,

e.g., Heston v. International Medical Group, Inc. (S.D.Ind. 2020)

477 F.Supp.3d 829, 832

- 833 [enforcing a jury trial waiver

provision in insurance policy under Indiana law].)16 unlawful, in whole or in part, the contract is void as to the latter

and valid as to the rest.”].) In that context, the court should ask

“ whether the contract ’ s unconscionability can be cured purely

through severance or restriction of its terms, or whether

reformation by augmentation is necessary. ” ( Ramirez v. Charter

Communications, Inc. (2024) 16 Cal.5th 478, 516; see Armendariz

v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th

83, 124

- 125. ) However, “ [e] ven if a contract can be cured, the

court should also ask whether the unconscionability should be

cured through severance or restriction because the interests of

justice would be furthered by such actions. ” ( Ramirez

, at p. 516;

see Armendariz

, at p. 124 [“The overarching inquiry is whether

‘“the interests of justice

. . . would be furthered”’ by severance.”] .)

“ In conducting this analysis, the court may also consider the

deterrent effect of each option. ” ( Ramirez

, at p. 517 .)

Assuming without deciding the unenforceable provisions of

the Warranty Registration Form and Limited Warranty can be

cured purely by severance or restriction, approving Thor’s

proposed stipulation, and requiring the Lathrops to accept it,

would not further the interests of justice. Thor acknowledges its

choice

- of

- law provision and jury waiver are unenforceable under

the Song

- Beverly Act, yet it routinely includes those provisions in

its Limited W arranty when it sells a motorhome in California.

When a customer files an action in California and argues the

provisions are unenforceable, Thor offers to stipulate not to

enforce the unenforce able provisions

, in exchange for the court

enforcing the Indiana forum selection clause. 7 Even if Thor’s

7 Federal district courts have transferred actions under

title 28 U nited S tates C ode section 1404(a), to the Northern17 stipulation protects the rights of the plaintiffs who are savvy

enough to obtain experienced legal representation, file in

California, and argue the forum selection clause implicates their

unwaivable statutory rights, other California consumers,

compelled by the forum selection clause, may file suit in Indiana

and only later discover that Indiana’s lemon law does not cover

motorhomes and that they have given up unwaivable California

statutory rights. Still othe rs may be deterred from pursuing

their claims at all.

Accepting Thor’s proposed stipulation and enforcing its

forum selection clause would also create an incentive for Thor to

District of Indiana in reliance on Thor’s ( or its subsidiary Jayco

Inc. ’s) stipulation in a number of cases. (See Torres v. Jayco, Inc.

(C.D.Cal., Mar. 6, 2024, No. EDCV 24

- 0065

- KK

- SHK x ) 2024

WL 1559730, p. 4 ; Zastawnik v. Thor Motor Coach, Inc. (C.D.Cal.,

June 16, 2023, No. CV 22

- 08663

- PSG

- AS) 2023 WL 5167363, p. 3;

Frisby v. Thor Motor Coach, Inc. (C.D.Cal., Jan. 24, 2023,

No. CV 22

- 2047

- MWF ( SHK x ) ) 2023 WL 1420434, p. 4 ; Jung v.

Thor Motor Coach, Inc. (C.D.Cal., Jan. 20, 2023, No. EDCV 22

-

1763 JGB ( KK x ) ) 2023 WL 1475109, p p

. 6

- 7 ; Pinkevich v. Thor

Motor Coach, Inc. (C.D.Cal., Nov. 16, 2022, No. 2 : 22

- cv

- 05 985

- OD W ( Ex) ) 2022 WL 19333282, p. 3 ; Derosa v. Thor Motor Coach,

Inc. (C.D.Cal., Sept. 30, 2020, No. 2 : 20

- cv

- 04 895

- SVW

- PLA)

2020 WL 6647734, p. 4 ; Baxter v. Thor Motor Coach, Inc.

(E.D.Cal., Apr. 20, 2020, No. 2 : 19

- cv

- 01532 JAM

- CKD) 2020

WL 1911549, p. 4.) Three federal district courts have rejected

proposed stipulations and denied motions to transfer venue. (See

Scott v. Airstream, Inc. (S.D.Cal., Feb. 7, 2024, No. 23

- cv

- 01808

- AJB

- MSB)

___ F.Supp.3d

___ [2024 WL 1122439, p. 4]; Gorga v.

Thor Motor Coach, Inc. (N.D. Cal., Feb. 6, 2024, No. 23

- cv

- 0 3603

- RFL) 2024 WL 1090650, p. 2; Waryck v. Thor Motor Coach, Inc.

(S.D. Cal., Jan. 13, 2023, No. 22

- cv

- 1096

- L MDD) 2023

WL 3794002, p. 5.)18 continue to include admittedly unenforceable provisions in its

warranties and would deter Thor from revising its warranty to

comply with California law. (See Ramirez v. Charter

Communications, Inc.

, supra

, 16 Cal.5th at p. 517 [“ severing

multiple unconscionable provisions from an agreement and

enforcing the remainder could ‘ create an incentive for an

employer to draft a one

- sided arbitration agreement in the hope

employees would not challenge the unlawful provisions, but if

they do, the court would simply modify the agreement to include

the bilateral terms the employer should have included in the first

place ’”]; Mills v. Facility Solutions Group, Inc. (2022)

84 Cal.App.5th 1035, 1045 [ same]; see also Armendariz v.

Foundation Health Psychcare Services, Inc.

, supra

, 24 Cal.4th at

p. 124, fn. 13 [ “ An employer will not be deterred from routinely

inserting [an unlawful] clause into the arbitration agreements it

mandates for its employees if it knows that the worst penalty for

such illegality is the severance of the clause after the employee

has litigated the matter. In that sense, the enforcement of a form

arbitration agreement containing such a clause drafted in bad

faith would be condoning, or at least not discouraging, an illegal

scheme, and severance would be disfa vored unless it were for

some other reason in the interests of justice. ” ] .) Several federal

district courts in California have refused to transfer cases against

Thor or related companies to districts in other states for this very

reason. (See, e.g., Scott v. Airstream, Inc. (S.D.Cal., Feb. 7, 2024,

No. 23

- cv

- 01808

- AJB

- MSB)

___ F.Supp.3d

___ [2024 WL

1122439, p. 4] [ “ accepting [the motorhome manufacturer’s]

proposed stipulations would likewise contravene California public

policy because it would not deter the drafter from including such

a clause ” ]; Gorga v. Thor Motor Coach, Inc. (N.D.Cal., Feb. 6,19 2024, No. 23

- cv

- 03603

- RFL) 2024 WL 1090650, p. 2 [ “ Accepting

[Thor’s] stipulations and enforcing the forum selection clause

would encourage and condone [Thor’ s ] decision to continue using

warranty agreements that it is aware contravene California

public policy. ” ] ; Waryck v. Thor Motor Coach, Inc. (S.D.Cal.,

Jan

. 13, 2023, No. 22

- cv

- 1096

- L MDD) 2023 WL 3794002, p. 5

[ “ accepting [Thor’s] stipulations or severing the clauses would

. . . contravene California public policy

, ” and the court “should not

condone ” such a “scheme”].)

Thor argues including the Indiana choice

- of

- law provision

in the Limited Warranty was not improper because, although the

provision is unenforceable under the Song

- Beverly Act, it is

enforceable under other statutes, such as California Uniform

Commercial Code section 1301, subdivision (a)

. 8 Thor asserts

California consumers who cannot sue under the Song

- Beverly

Act

— because they purchased a motorhome outside California,

from a private seller, or for business purposes

— may bring

“ California Uniform Commercial Code warranty claims

. . . .” But

Thor does not explain why it provides consumers who are covered

by the Song

- Beverly Act ( undoubtedly the majority of purchasers

in California) with a warranty that complies with the California

Uniform Commercial Code but not the Song

- Beverly Act. 9

8 Which states: “Except as otherwise provided in this

section, when a transaction bears a reasonable relation to this

state and also to another state or nation, the parties may agree

that the law either of this state or of the other state or nation

shall g overn their rights and duties.”

9 Nor does Thor explain why its Limited Warranty does not

contain different choice

- of

- law terms for buyers covered by the20 Thor also argues it “ is not surprising that warranty

agreements

. . . intended to apply in all 50 states

. . . may include

provisions

— like the jury waiver provision

— that are not

enforceable in some individual states.” Thor contends its

warranty “ puts California consumers on notice that California

substantive law may apply, including the right to a jury trial or

California ’s lemon law ,” by including language required by the

federal Magnuson

- Moss Warranty Act (15 U.S.C. § 2301 et seq.)

stating: “This limite d warranty gives you specific legal rights.

You may also have other rights, which vary from state to state

and province to province.” 10 But a disclosure the consumer “may

also have other rights” is not a disclosure a provision “may not

Song

- Beverly Act and buyers who are not

, which the warranty

does for other terms . For example, the Limited Warranty

provides a one

- year warranty generally , but a 90

- day warranty

for motorhomes purchased for business purpose s

.

10 Magnuson

- Moss “ requires disclosures in connection with

written warranties, regulates the substantive content of

warranties, and establishes a federal cause of action for breach of

a written or an implied warranty (15 U.S.C. § 2310(d)), among

other provisions. Magnuson

- Moss does not substitute federal law

for state law of consumer product warranties, but instead

supplements state law. ” ( Orichian v. BMW of North America,

LLC (2014) 226 Cal.App.4th 1322, 1330.) The Federal Trade

Commission intended the “other rights” disclosure to “negate the

assumption (often incorrect) that the warranty sets forth the

buyer’s only recourse” and to inform consumers they may pursue

other theories of liability, including the implied warranty of

merchantability. (40 Fed.Reg. 60179 (Dec. 31, 1975); see

16 C.F.R. § 701.3 (a)(9) (2015)

. )21 apply to you.” The “other rights” disclosure, which appears below

the Indiana choice

- of

- law clause, does not inform a California

consumer that Indiana law may not govern or that the consumer

may bring a cause of action under California’s Song

- Beverly Act

or the CRLA

. 11 Moreover, the “other rights” disclosure in the

Legal Remedies section of the Limited Warranty does nothing to

notify California consumers they may have the right to a jury

trial; the jury waiver appears in the Warranty Registration Form,

which does not have an “other rights” disclosure.

Thor relies on Verdugo

, supra

, 237 Cal.App.4th 141, which

discussed the possibility a defendant might be able to stipulate to

apply California law, but did not squarely decide whether such a

stipulation would make a forum selection clause enforceable. In

Verdugo an employee asserted causes of action under the Labor

Code against her employer, who moved to stay the action based

on a Texas forum selection clause in her employment agreement.

( Verdugo , at p. 146.) The employer argued enforcing the forum

selection clause would not diminish the employee’s unwaiv able

rights because under Texas choice

- of

- law principles a Texas court

would likely apply California law to the employee’s wage

- and

hour causes of action, notwithstanding a Texas choice

- of

- law

clause in the employment agreement. ( Id . at p. 158.) The court

in Verdugo rejected the employer’s argument, stating the

employer “ c ould have eliminated any uncertainty on which law a

11 In contrast, under the section on limitation and disclaimer

of implied warranties, the Limited Warranty contains the

following disclosure

, also required by Magnuson

- Moss (see

16 C.F.R. § 701.3(a)(7) (2015) ): “Some states and provinces do not

allow limitations on how long an implied warranty lasts, so the

above limitation may not apply to you.”22 Texas court would apply by stipulating to have a Texas court

apply California law in deciding Verdugo ’ s claims, but [the

employer] did not do so .” ( Ibid .) The court concluded the

employer’s “failure to stipulate that California law applies,

coupled with its efforts to minimize the significance of the public

policy underlying [the employee’s] Labor Code rights,”

undermined the employer’s contention a Texa s court would likely

apply California law. ( Id . at p. 159.) Although the court in

Verdugo mentioned t he defendant’s unwillingness to stipulate to

apply California law in the new forum as a reason not to enforce

a forum selection clause, the court did not have occasion to decide

whether such a stipulation would have met the defendant’s

burden to show litig ating in the different forum would not

diminish the plaintiff’s unwaivable rights.

Thor cites several cases where federal district courts,

relying on stipulations offered by Thor, have transferred actions

under title 28 U nited States Code section 1404(a) to the Northern

District of Indiana ; the Lathrops cite a smaller number of cases

that have refused to transfer cases on public policy grounds (see

footnote 8 ). The persuasive value of these cases, however, is

limited: O pposing a motion to transfer based on a forum

selection clause is generally more difficult in federal court, where

“ the plaintiff bears the burden of showing why transfer to the

bargained forum is unwarranted.” ( Scott v. Airstream, Inc.

,

supra

,

___ F.Supp.3d at p.

___ [ 2024 WL 1122439, p. 2]; see

Frisby v. Thor Motor Coach, I nc. (C.D.Cal., Jan. 24, 2023, No. CV

22

- 2047

- MWF ( SHK x ) ) 2023 WL 1420434, p. 4 [“ Plaintiff has not

met his burden in demonstrating that the forum

- selection clause

is unenforceable based on the public policy factor in [ M/S

Bremen v. Zapata Off

- Shore Co. (1972) 407 U.S. 1].”].)23 2. Even if Thor’s Proposed Stipulation Did Not

Violate Public Policy, It Was Insufficient

Even if a stipulation to apply California law rather than

Indiana law could salvage an otherwise unenforceable forum

selection clause

, Thor’s proposed stipulation was not sufficient

.

Thor agreed “the substantive provisions” of the Song

- Beverly Act

and the CLRA “ along with all other unwaivable California

substantive rights will apply to [the Lathrops ’ ] currently

enumerated claims when pursued in an action against them in

Indiana. ” This stipulation , however, created several

opportunities for unwaivable right s mischief in Indiana.

For example, Thor ’ s inclusion of the modifier “ substantive ”

creates the potential for disputes over wh ich rights are

substantive and which are procedural

. Thor asserts th e phrase

“ other unwaivable California substantive rights ” includes the

right to a jury trial (which, as discussed, the Warranty

R egistration F orm waived ), but a n Indiana court could rule that

right is not a “ substantive right. ” (See Handoush v. Lease

Finance Group, LLC

, supra

, 41 Cal.App.5th at p. 737 [ “ Whether

the right to a jury trial in a civil case is a substantive or

procedural right is an open question

. ” ] ; 12 Hayworth v. Bromwell

12 California ’ s “ predispute jury waiver rule contain [s] both

substantive and procedural elements. On the one hand, the

‘“ rule

— which allocates tasks between a judge and a jury

— describes ‘ merely a form and mode of enforcing ’ the law, ”’ which

suggests it is procedural in nature. [Citation.] On the other

hand, the ‘ “ rule on pre

- dispute jury trial waivers embodies the

state ’ s substantive interest in preserving the ‘ right to a jury trial

in the strongest possible terms ’ [citation], an interest the

California Constitution zealously guards, see Cal. Const.24 (1959) 239 Ind. 430, 435 [“ While the right itself is a substantive

matter, the method or manner in which it may be waived or

exercised is clearly a procedural question. ”].) In addition, a n

Indiana court could apply Indiana law to cap the Lathrops ’

damages or apply a higher burden of proof on the ground those

issues are not “ substantive

. ” ( Compare Ind. Code § 24

- 5

- 0.5

- 4

[damages for an uncured or incurable willful deceptive act capped

at $1,000 under Indiana ’ s Deceptive Consumer Sales Act ] with

§ 1794, subd s

. (c), (e)(1) [buyer may recover a civil penalty of up

to two times actual damages under the Song

- Beverly Act ].) And

,

b y limiting the proposed stipulation to “ currently enumerated

claims ,” Thor ’s offer to stipulate denied the Lathrops their

(procedural) right under California law to amend t heir complaint

to assert additional causes of action , including those based on

unwaivable statutory rights. (See Civ. Proc. Code, § 472,

subd. (a) [ plaintiff may amend a pleading once without leave of

court before the defendant files a responsive pleading].)

And there’s more: Thor ’ s proposed stipulation also directs

an Indiana court to apply Indiana law in interpreting the

warranty. The Legal Remedies section of the Limited W arranty

contained two choice

- of

- law provisions : (1) a specific or narrow

provision stating the warranty “ shall be interpreted and

construed in accordance with the laws of the state of Indiana ”

art. I, § 6

. ”’” ( EpicentRx

, supra

, 95 Cal.App.5th at p. 903 , review

granted .) The court in Handoush v. Lease Finance Group, LLC

,

supra

, 41 Cal.App. 5th 729 concluded that, even if the predispute

jury waiver rule was procedural, it served “‘“ substantive state

policies ”’ of preserving the ‘“ right to a jury trial ”’ ” and that

therefore the defendant had the burden of showing that enforcing

the forum selection clause would not diminish the plaintiff ’ s substantive rights under California law. ( Id. at p. 740

. )25 and (2) a general provision stating Indiana law applied to all

claims “ arising out of or relating to ” the warranty

, “ whether

sounding in contract, tort, or statute. ” ( See Narayan v. EGL, Inc.

(9th Cir. 2010) 616 F.3d 895, 898 [ “ narrow choice

- of

- law clauses,

providing under what law an agreement ‘ shall be interpreted and

enforced, ’ apply only to the interpretation and enforcement of the

contract itself; they do not ‘ encompass all disputes between the

parties ’” ]; Benchmark Electronics, Inc. v. J.M. Huber Corp.

( 5th Cir. 2003) 343 F.3d 719, 726 [choice

- of

- law provision

addressing only “ the constr uction and interpretation of the

contract ” did not govern claims for fraud and negligent

misrepresentation]. ) Thor ’ s proposed stipulation modified only

the second provision by stating California law would govern the

Lathrops ’ causes of action under the Song

- Beverly Act and the

CLRA. But t he stipulation left intact the first provision

, allowing

an Indiana court to interpret a provision in the warranty under

Indiana law in a way that might diminish or eliminate one of the

Lathrops ’ unwaiv able statutory rights under California law. For

example, under the Song

- Beverly Act the Lathrops can seek

incidental and consequential damages, but the warranty (which

the first choice

- of

- law provision requires the Indiana court to

interpret under Indiana law) precludes the Lathrops from

recovering those damages. Faced with this conflict between the

Song

- Beverly Act and the warranty provision limiting damages

,

a n Indiana court will not be able to apply conflict

- of

- law rules :

Thor ’ s proposed stipulation did not alter the provision in the

Limited W arranty prohibiting a court in Indiana from engaging

in a conflict

- of

- law analysis that would result in the court

a pplying the law of a state other than I ndiana.26 Finally, Thor cannot guarantee an Indiana court will apply

California law to the Lathrops ’ Song

- Beverly and CLRA causes of

action. As stated, Thor offered to stipulate it would “ not oppose a

request that the Indiana court utilize the Song Beverly Consumer

Warranty Act and Consumers Legal Remedies Act to adjudicate

those allegations. ” But even if Thor said it would not oppose the

Lathrops’ request that a court in Indiana apply the Song

- Beverly

Act and the CLRA, Thor did not say it would join that request,

and ultimately it will be up to the courts in Indiana to decide

whether to honor all or part of the proposed stipulation

. Claiming “ Indiana courts routinely apply California law in cases

just like this one

, ” Thor cite s ( not Indiana state court cases, but )

three federal cases from the Northern District of Indiana

, two of

which applied the Song

- Beverly Act or the CLRA ( before granting

motions by the defendant s in those cases t o dismiss or for

summary judgment on those claims )

. 13 But none of these cases

sheds light on how an Indiana court would interpret Thor ’ s

13 See Raymond v. Thor Motor Coach Inc. (N.D.Ind., Aug. 2,

2023, No. 3:21

- CV

- 222 JD) 2023 WL 4930105, p. 4 ( granting the

defendant’s motion for summary judgment on Song

- Beverly

claims because the plaintiff, a California resident, bought the

motorhome out side California ) ; Truitt v. Forest River, Inc.

(N.D.Ind., Sept. 7, 2021, No. 3:20

- CV

- 964 JD) 2021 WL 4061591,

p. 9 ( granting the defendant’s motion to dismiss Song

- Beverly

claims for the same reason as the court did in Raymond and

granting the defendant’s motion to dismiss the CLRA claims for

failing to allege sufficient facts to support a plausible inference

the defendant knew of the alleged defect )

. In the third case, the

plaintiff cited a case decided under the Song

- Beverly Act

, but did

not assert a claim under that act . (See Popham v. Keystone RV

Company (N.D.Ind., Sept. 19, 2016, No. 3:15

- CV

- 197

- TLS) 2016

WL 4993393, p. 6.)27 stipulation or apply California law in this case , nor did any of

them mention a forum selection clause or whether the case was

originally filed in California

.

DISPOSITION

The order granting Thor ’ s motion to stay is reversed , and

the trial court is directed to enter a new order denying the

motion

. The Lathrops’ motion to augment the record is granted,

and Thor’s motion for judicial notice is granted. The Lathrops

are to recover their costs on appeal.

SEGAL, J.

We concur:

MARTINEZ

, P. J.

FEUER , J.