Blue Sky Utility LLC et al v. Barend Venter

Through its opposition to the motion, Plaintiffs argued exclusively that the subject forum selection clause is unenforceable because the clause contains a jury waiver and Plaintiffs would not be entitled to a jury trial in the Delaware Court of Chancery.

The Court finds that this argument was squarely addressed, and rejected by our Supreme Court in EpicentRx, Inc. v. Super. Ct. (2025) 18 Cal.5th 58, 67 [“A forum selection clause is not unenforceable simply because it requires the parties to litigate in a jurisdiction that does not afford civil litigants the same right to trial by jury as litigants in California courts enjoy”].)

Plaintiffs appear to concede the foregoing by failing to reassert the argument through their Supplemental Opposition filed on May 4, 2026 (5/4 Supp. Opposition). Rather, Plaintiffs now attempt to raise a series of arguments that they did not raise: (a) through their original opposition to Nofar’s Motion to Dismiss; (b) at the original hearing on the motion; or (c) through their 2024 Motion for Reconsideration. Plaintiffs contend, for the first time, that: (1) the forum selection clause does not apply to the First Cause of Action; (2) the forum selection clause should be disregarded because the parties agreed to other forum selection clauses as part of their overall transaction; and (3) Nofar has waived the forum selection clause and consented to jurisdiction before this Court a tort claim that does not involve an interpretation of the MIPA. (See Id. at 3:20-21.)

The Court finds inappropriate Plaintiffs’ attempt to raise new arguments and legal theories at this procedural juncture, without seeking leave of Court to do so, and without providing Nofar with notice or an opportunity to respond. For this reason, the Court declines to consider these novel arguments. This ruling is made without prejudice to Plaintiffs’ rights to move the Court to consider them, should such a request by legally appropriate.

Based on the foregoing, Nofar’s June 10, 2024, Motion to Dismiss First Cause of Action on the Ground of Inconvenient Forum is GRANTED.

Blue Sky Utility LLC et al v. Barend Venter 24CV002242

MOTION TO DISMISS

TENTATIVE RULING: The matter was, by Minute Order of April 17, 2026, inadvertently set for a Motion to Dismiss. No such motion is pending in this action. However, the Court set the matter for Case Management Conference on July 17, 2026, at 8:30 a.m. in Dept. A.

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