Fiduccia v. Princess Cruise Lines

Filed 7/31/07 Fiduccia v. Princess Cruise Lines CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from judgments of the Superior Court of Los Angeles County, Susan Bryant-Deason and James E. Satt,[1] Judges. Affirmed.

Law Offices of David H. Solo and David H. Solo for Plaintiff and Appellant.

Wise, Pearce Yocis & Smith and Mathew J. Vande Wydeven for Defendants and Respondents.

INTRODUCTION

Appellant John Fiduccia appeals from a judgment of dismissal after the demurrer of respondent Princess Cruise Lines, Ltd. (Princess) was sustained without leave to amend. He also appeals from a judgment of dismissal entered after the trial court granted the motion to quash service of summons brought by respondent Cruise Solutions Belize, Ltd., (Cruise Solutions). Appellant, a passenger on a Princess cruise ship, sued both entities for injuries suffered during a shore excursion while touring a park in Belize City, Belize, claiming that each entity was negligent in failing to warn him of the dangerous condition of a boardwalk in the park. We conclude that as appellant failed to allege facts showing actual or constructive knowledge of any unreasonable risk or danger, no duty to warn arose, and no cause of action for negligence was stated against Princess.

We also conclude that appellant failed to meet his initial burden to make a prima facie showing that the exercise of jurisdiction over Cruise Solutions was justified. Appellant relied upon forum selection clauses in two contracts --appellants cruise contract and Cruise Solutionss contract with Princess -- but he did not establish that Cruise Solutions consented to the former contract, or that he was an intended beneficiary of the latter. We reject appellants contention that he should have been permitted to obtain discovery from Cruise Solutions, as he has not shown the trial court abused its discretion in denying his request for discovery. We therefore affirm both judgments.

BACKGROUND

1. Procedural History

Appellant commenced this action in 2005 against respondents Princess and Cruise Solutions. Princess interposed general demurrers to the complaint, and Cruise Solutions brought a motion to quash service of summons on two grounds: failure to effect service as required by Code of Civil Procedure section 416.10; and Cruise Solutionss lack of sufficient minimum contacts with this state to justify personal jurisdiction. After Princesss demurrers were sustained to the original complaint, appellant filed the first amended complaint (FAC), and Princess again demurred. The trial court sustained Princesss demurrers without leave to amend, and granted Cruise Solutionss motion to quash. After appellant had filed a notice of appeal December 29, 2005, the trial court entered written orders of dismissal in favor of Princess and Cruise Solutions. We treat the premature notice of appeal as timely filed.[2]

2. Allegations of the FAC

The FAC alleges that appellant had been a passenger on Princesss cruise ship, the Coral Princess, which departed from Fort Lauderdale, Florida, October 11, 2004, stopping at several ports of call, including Belize City. The FAC alleged that while onboard, appellant purchased a ticket for an onshore excursion to the Crooked Tree Wildlife Sanctuary near Belize City; during the excursion, appellant fell through a rotten, broken and defective boardwalk, causing him to suffer serious personal injuries. The first cause of action for negligence, naming only Cruise Solutions, incorporated all prior allegations by reference, and further alleged that Cruise Solutions operated the tour of the wildlife sanctuary and was obligated to ensure that the facilities were safe, but negligently failed to do so.

The second cause of action for negligence named only Princess, and incorporated all prior allegations, adding that Princess and Cruise Solutions entered into a joint venture relationship for their mutual economic benefit whereby . . . Princess sells tickets to its passengers for tours operated by Cruise Solutions . . . , acting as an agent and co-venturer with . . . Cruise Solutions.[3] The second cause of action alleged that Princess gave an onboard presentation describing available excursions, including the wildlife sanctuary tour, and encouraged passengers to purchase tickets to the featured excursions. It further alleged that appellant purchased tickets from Princess for the wildlife sanctuary tour because representatives of Princess informed him the tour would be safe, easy and nonstrenuous; later, at the tender dock, Princesss tour director told appellant she had inspected the wildlife sanctuary two weeks before, in order to ensure it was safe. Despite her inspection, the tour director allegedly failed to observe the defective condition of the boardwalk, and failed to warn appellant of the danger, resulting in appellants falling through the rotten boards and suffering serious injuries. The third cause of action for Common Carrier Negligence also named only Princess and incorporated all prior allegations, adding that Princess was a common carrier and that its negligence and failure to warn constituted common carrier negligence.

Attached to the FAC and incorporated by reference was a copy of appellants ticket for the Princess cruise. The ticket included contract terms which limited Princesss liability for injuries to those caused by Princesss own negligence or fault. The ticket also provided for the application of federal maritime law in any lawsuit against Princess, and for venue in Los Angeles County.

3. Motion to Quash

Cruise Solutionss motion to quash service of summons was made upon three declarations of the tour companys managing director, David Gegg. In his first declaration, Gegg stated that Cruise Solutions had received a copy of the summons and complaint by registered mail addressed to the company, but not to any officer, director, managing agent or agent for service of process. Gegg stated that Cruise Solutions was a Belize limited liability company domiciled in Belize City, and had never been registered in California, had never conducted business or maintained an office in California, had never recruited employees from California and had never appointed an agent for service of process in California. Further, Gegg declared, Cruise Solutions did not advertise or solicit business in California, had no employees, shareholders, directors or officers in California, had never held meetings in California, opened bank accounts, taken loans, conducted financial business in California or paid California sales or use tax. Gegg also declared that although Cruise Solutions did have business dealings with Princess, Cruise Solutions was a separate and independent business entity, and its contact with Princess was made through Princesss Florida office.

Essentially, Gegg concluded, Cruise Solutions did not have any contact whatsoever with the State of California.

Appellant sought to show that Cruise Solutions consented to jurisdiction in California in two forum selection agreements, viz., the forum selection provision in appellants cruise ticket and the forum selection provision in Cruise Solutionss contract with Princess. The cruise ticket does not name Cruise Solutions as a party to that contract. Gegg submitted additional declarations, stating that Cruise Solutions was not a party to the cruise ticket, and that appellant was not a signatory or party to Cruise Solutionss contract with Princess, which was intended to apply only to disputes between Cruise Solutions and Princess.

DISCUSSION

1. Princesss Demurrers

Appellant contends the trial court erred in sustaining the demurrers to the second and third causes of action, and abused its discretion in denying leave to amend. On appeal from a judgment of dismissal entered after a general demurrer is sustained, our review is de novo. (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) We examine the allegations of the complaint to determine whether it states a cause of action, and if not, we determine whether there is a reasonable possibility that it could be amended to do so. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc.,  452.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . [W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Appellant contends the FAC adequately alleged the elements of negligence. Although appellant seeks damages for injuries suffered on land, we apply federal maritime law, as the issues presented involve the interpretation of a maritime contract, and the contract includes a choice of federal maritime law, which neither party challenges. (See Carnival Cruise Lines, Inc. v. Shute (1991) 499 U.S. 585, 590; Hayman v. Sitmar Cruises, Inc. (1993) 14 Cal.App.4th 1499, 1504.)[4] State law defines common law torts in maritime cases. (Su v. M/V Southern Aster (9th Cir. 1992) 978 F.2d 462, 472; see Yang Ming Marine Transp. v. Oceanbridge Shipping Intern. (C.D.Cal. 1999) 48 F.Supp.2d 1049, 1060.) The elements of a negligence cause of action are duty, breach of duty, proximate cause and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614; see Pearce v. U.S. (6th Cir. 2001) 261 F.3d 643, 647.) It is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew. [Citations.] (Kermarec v. Compagnie Generale (1959) 358 U.S. 625, 630 (Kermarec).)[5]

Appellant does not dispute that the terms on his cruise ticket formed a contract between himself and Princess. (See Lubick v. Travel Services, Inc. (D.V.I. 1983) 573 F.Supp. 904, 906, citing The Moses Taylor (1867) 71 U.S. (4. Wall.) 411.) Under the terms of appellants passage, Princess limited its liability for injuries suffered during onshore excursions. Paragraph 16 provided, in relevant part: Carrier is not liable for . . . injury . . . caused by . . . any . . . act not shown to be caused by Carriers negligence. . . .  [S]hore excursions . . . and other tours may be owned and/or operated by independent contractors and Carrier makes no representations and assumes no responsibility therefore. If You . . . take part in organized activities, whether on the ship or as part of a shore excursion, You assume the risk of injury . . . and Carrier is not liable or responsible for it. Carrier in no event is liable to You in respect of any occurrence taking place other than on the ship or launches owned or operated by Carrier. . . .

Appellant acknowledges that a shipowner may limit its liability to passengers by contract, so long as such limitation of liability does not extend to its own negligence or fault or the negligence or fault of its employees or agents. (See 46 U.S.C. 30509 [former 183c]; see Henderson v. Carnival Corporation (S.D.Fla. 2000) 125 F.Supp.2d 1375, 1377.) However, he contends the contractual limitation does not apply here, because the FAC adequately alleged that his injuries were caused by Princesss own negligent failure to warn of the defective condition of the boardwalk, despite its tour directors having inspected the wildlife sanctuary for safety

Appellant relies upon DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802 (DeRoche), and Carlisle v. Ulysses Line Ltd., S.A. (Fla.App. 1985) 475 So.2d 248 (Carlisle).[6] In DeRoche, the court held that where a cruise linehas a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit . . . , but only when there are facts from which it might be concluded that the carrier has some knowledge of an unreasonable risk. (DeRoche, supra, 31 Cal.App.4th at p. 809, quoting Carlisle, at p. 251.) In Carlisle, the plaintiffs were ambushed and shot by three masked gunmen after following the advice of the ships activities director to drive along an isolated access road to a particular secluded waterfront site. (See Carlisle, at p. 249.) The cruise lines continuing obligation to care for its passengers onshore arose from the cruise lines promotional brochures which featured the beaches of Nassau -- in essence, inviting passengers to go ashore -- and the advice of the ships activities director to visit a particular beach. (Id. at pp. 249-251.) The cruise lines duty to warn of the danger arose from crewmembers knowledge that tourists had been victims of violence in various places on the island, and the reputation of the recommended beach as very bad. (Id. at p. 249.)

In DeRoche, unlike in Carlisle, the plaintiffs had alleged no facts from which it might be concluded that the cruise line had actual or constructive notice of a dangerous condition; the court concluded that without knowledge of any unreasonable risk or danger, the shipowner owed no duty to warn. (DeRoche, supra, 31 Cal.App.4th at pp. 809-810.)[7] In maritime cases, constructive notice of an onboard dangerous condition is shown when it has existed for a period sufficient to give rise to an inference that crewmembers noticed it. (See Monteleone v. Bahama Cruise Line, Inc. (2d Cir. 1988) 838 F.2d 63, 65; Lee v. Regal Cruises, Ltd. (S.D.N.Y. 1996) 916 F.Supp. 300, 303.) Similarly, in Carlisle, the reputation of the beach imparted constructive notice of a dangerous onshore condition. (See Carlisle, supra, 475 So.2d at pp. 249, 251.) Here, the FAC alleged no facts from which it might be concluded that the tour directors single inspection of the wildlife sanctuary two weeks before was sufficient to impart actual or constructive notice of a dangerous condition of the boardwalk. Indeed, appellant affirmatively alleged that the tour director did not observe the condition of the boardwalk, and that appellant took one of the first tours offered to the sanctuary. The FAC has thus failed to allege a duty to warn appellant of the dangerous condition of the boardwalk. (See DeRoche, at p. 810.)

Without additional citation to authority, appellant argues that Princess had an affirmative obligation to inspect the boardwalk at the sanctuary. Neither DeRoche nor Carlisle supports his contention. Neither court found or discussed a duty to inspect or discover dangerous conditions onshore; without knowledge or constructive knowledge, the cruise lines owed no duty to make independent tours safe. (See DeRoche, supra, 31 Cal.App.4th at p. 809; Carlisle, supra, 475 So.2d at pp. 249-251.) [A] shipowner is not an insurer of its passengers safety. [Citations.] (Monteleone v. Bahama Cruise Line, Inc., supra, 838 F.2d at p. 65.)

The facts of Isbell v. Carnival Corp. (S.D.Fla. 2006) 462 F.Supp.2d 1232 (Isbell), are more closely analogous to those of this case than either DeRoche or Carlisle. In Isbell, the plaintiff was bitten by a snake while on an independently-operated rain forest excursion in Belize, which she took after the cruise director had described the excursion as one that any 90-year old woman could safely enjoy and that people took . . . all the time [without] incidents [or] any problems. (Isbell, supra, 462 F.Supp.2d at p. 1234.) The plaintiff alleged she had specifically asked . . . if there were any alligators, snakes, bugs, spiders, anything [she] needed to be concerned about, [and the cruise line employee] responded that passengers took this excursion all the time and that there was no need for concern. (Ibid.) The court held that such facts were insufficient to show actual or constructive knowledge of the dangerous condition. (Id. at p. 1237.) Similarly, we conclude that appellant failed to allege facts giving rise to a duty, thus failing to state a cause of action for the negligence or fault of Princess, as necessary to avoid enforcement of the exculpatory clause of the cruise contract. (See 46 U.S.C. 30509.)

Appellant contends the trial court abused its discretion in denying leave to amend in order to correct specific factual inadequacies. When a demurrer is sustained without leave to amend, the burden falls squarely upon the appellant to prove a reasonable possibility of amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Appellants first attempt to do so appears in his reply brief, in which he claims he should be permitted to add a cause of action for fraud against Princess for wording the forum selection clause of the ticket to suggest that passengers could sue independent contractors in California. Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. [Citation.] (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)

Moreover, although an appellant may prove a reasonable possibility of amendment for the first time on appeal, that showing requires setting forth the specific factual allegations that sufficiently state all required elements of the amended cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 42-44.) Fraud consists of an intentional misrepresentation or concealment, made with intent to induce reliance, justifiable reliance and resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Appellant claims to be able to allege only one element of fraud -- misrepresentation.[8] He proffers no facts showing Princess intended the reference to independent contractors in the tickets forum selection clause to induce passengers to conclude that independent contractors had agreed to be bound by it. Nor does appellant proffer facts showing he justifiably relied on his construction of such language in buying the ticket. Thus, appellant has not met his burden to prove a reasonable possibility of amendment. (See Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Rakestraw v. California Physicians Service, supra, 81 Cal.App.4th at pp. 43-44.)

2. Cruise Solutionss Motion to Quash

Appellant contends the trial court erred in granting Cruise Solutionss motion to quash service of summons due to lack of personal jurisdiction. As appellant does not contend the motion turned on disputed facts, our review of the courts ruling is de novo. (See Snowney v. Harrahs Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)

A states exercise of jurisdiction must comport with the due process clause of the United States Constitution. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472 (Burger King); Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 319.) The Due Process Clause protects an individuals liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. [Citation.] (Burger King, at pp. 471-472, fn. omitted.)

Appellant did not dispute any of Cruise Solutionss evidence showing an absence of contacts with the State of California.[9] Instead, appellant contends personal jurisdiction was obtained over Cruise Solutions through forum selection clauses in two contracts, viz., the cruise ticket and Princesss shore operations manual for tour operators. Due process may be satisfied by an agreement to submit to the jurisdiction of a foreign court, such as where parties include forum selection provisions in their contract. (The Bremen v. Zapata Off-Shore Co. (1972) 407 U.S. 1, 9-10 (Bremen).)

The forum selection clause of the cruise ticket states, in part: If you choose to sue Princess Cruise Lines, Ltd., then such claim must be litigated by you before a court located in the County of Los Angeles, California, U.S.A., to the exclusion of the courts of any other country, state, city or county. You hereby waive any venue or other objection that may be available to any such action or proceeding being brought in any court located in Los Angeles, California. The limitations set forth in this Section 17 shall also apply to and be for the benefit of any agents, independent contractors, concessionaires and suppliers of Carrier. You is defined in the ticket as the passenger, and Carrier is defined as the shipowner, and includes concessionaires, independent contractors and others.

Under the terms of the operations manual, tour operators agree to hold Princess harmless for claims arising from the operation of the tours. In addition, tour operators must be fully insured, with Princess named as an additional insured on their policies. Finally, [t]our operators must agree to submit to personal jurisdiction in Los Angeles County, California.[10]

In general, forum selection clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances. (Bremen, supra, 407 U.S. at p. 10.) Further, as between shipowners and passengers, forum selection provisions in cruise tickets are to be enforced unless it would be fundamentally unfair or unreasonable to do so. (Carnival Cruise Lines, Inc. v. Shute, supra, 499 U.S. at pp. 593-595.) Here, however, it is undisputed that Cruise Solutions was not a signatory to the cruise ticket contract. It is also undisputed that appellant was not a signatory to the operations manual between Princess and Cruise Solutions.

Appellant contends that, because such provisions are prima facie valid, it was Cruise Solutionss burden to prove the forum selection clause invalid. Appellants argument has missed a step; the party opposing a motion to quash service of process for lack of jurisdiction always has the initial burden to make a prima facie showing that the exercise of jurisdiction is justified. (Holland America Line v. Wrtsil North Amer. (9th Cir. 2007) 485 F.3d 450, 455 (Wrtsil); see Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.) To meet his initial burden, appellant was required to show not only that there existed some contract with a forum selection clause, but that the person objecting to jurisdiction agreed to that contract; only then would the clause be deemed prima facie enforceable. (Wrtsil, supra, 485 F.3d at pp. 455-456; see Burger King, supra, 471 U.S. at pp. 476-477.) When a forum selection clause is insufficient to give notice that it is a consent to the jurisdiction named in the contract, the requisite mutual consent to that contractual term is lacking and no valid contract with respect to such clause thus exists. [Citations.] (Carnival Cruise Lines, Inc. v. Superior Court (1991) 234 Cal.App.3d 1019, 1027.)[11]

Schlessinger v. HollandAmerica(2004) 120 Cal.App.4th 552, cited by appellant, does not place the burden on a nonparty to a contract to prove its invalidity. That case involved a lawsuit brought by passengers against the cruise line that issued the ticket, and there was no claim, as in this case, that a nonparty to the contract agreed to the forum selection provision of the contract printed on the ticket. (See id. at pp. 555, 558.) Nor did two other cases cited by appellant regarding the burden of proof involve the enforcement of a forum selection clause by or against a nonparty to the contract in which the clause appeared. (See, e.g., Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491; CQL Original Products, Inc. v. National Hockey League Players Assn. (1995) 39 Cal.App.4th 1347.)

Due process requires that individuals have fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign, [citation] . . . . (Burger King, supra, 471 U.S. at p. 472.) By requiring that individuals have fair warning . . . , [citation], the Due Process Clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit, [citation]. (Ibid.) When the language of a contract gives no notice that it is an agreement to jurisdiction, fair warning is lacking. (See Wrtsil, supra, 485 F.3d at p. 458.) Cruise Solutions was not a party or signatory to the cruise contract contained in the ticket. Indeed, Cruise Solutionss name appears nowhere in the terms of the ticket. Further, the terms of the operations manual give no fair warning that Cruise Solutions would be subject to jurisdiction in California in a lawsuit brought by anyone other than Princess -- the only other party to the contract.

Relying on two cases arising under California law, appellant contends Cruise Solutions is bound by the cruise contract although it is not a party to it, because Cruise Solutions is closely related to the contractual relationship that exists between appellant and respondent Princess. (See, e.g., Net2Phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583 (Net2Phone); Lu v. Dryclean-U.S.A. of California, Inc. (1992) 11 Cal.App.4th 1490 (Lu).) We do not disagree with the general principle that a nonparty to a contract may be bound by the contracts forum selection clause under some circumstances. (See Wrtsil, supra, 485 F.3d at p. 456, citing Manetti-Farrow, Inc. v. Gucci America, Inc. (9th Cir. 1988) 858 F.2d 509, 511, 514 & fn. 5.) However, the circumstances of the cases cited by appellant are not present here. In Net2Phone, the nonparty was closely related to the contractual relationship, because it had sued in a representative capacity, asserting the rights of those who were parties to the contract, by challenging certain contractual terms. (Net2Phone, supra, at p. 589.) In Lu, a nonparty corporate parent was found to be closely related to the contractual relationship, because it was alleged to have been the alter ego of the party who signed the agreement with the forum selection clause. (Lu, supra, at p. 1494.) Here, Cruise Solutions has not asserted any rights under the cruise agreement, and appellant has not shown or alleged that Cruise Solutions is Princesss alter ego.

Further, the cases cited by appellant provide no authority for enforcing the operations manual in favor of appellant, who was not a party to it. Under some circumstances, a nonparty may enforce a forum selection clause against one who is a party to the contract, such as where the nonparty was a third-party beneficiary. (See Bancomer, S. A. v. Superior Court (1996) 44 Cal.App.4th 1450, 1453-1454; see Wrtsil, supra, 485 F.3d at p 456.) However, in general, a contract may be enforced only by a nonparty whom the contracting parties intended to benefit, not by a person merely remotely or incidentally benefited by the contract. (Lucas v. Hamm (1961) 56 Cal.2d 583, 590-591.) Although the name of the third-party beneficiary need not be in the contract, the intent to benefit that person must clearly appear in its terms. (See Luis v. Orcutt Town Water Co. (1962) 204 Cal.App.2d 433, 442.) One who is neither a party nor an intended beneficiary to a contract has no standing to enforce a forum selection clause in the contract. (Berclain America Latina v. Baan Co. (1999) 74 Cal.App.4th 401, 407-408.) As Cruise Solutions has pointed out, the operations manual does not name appellant as a beneficiary, and appellant makes no contention that he was an intended beneficiary under that contract.

In sum, the evidence failed to show that Cruise Solutions was a party to the cruise agreement or that appellant was a party to the operations manual; appellant submitted no evidence that Cruise Solutions consented to the forum selection clause in the cruise ticket or that the operations manual gave Cruise Solutions fair warning that by entering into a contract with Princess, it consented to jurisdiction in Los Angeles in any action brought by a passenger. (See Burger King, supra, 471 U.S. at p. 472; Wrtsil, supra, 485 F.3d at p. 458.) Appellant thus failed to meet his initial burden to produce evidence of facts justifying the exercise of jurisdiction, and the burden never shifted to Cruise Solutions to show it would be unfair or unreasonable to exercise jurisdiction. (See Burger King, at pp. 476-477; Wrtsil, at pp. 455-456.) The trial court did not err in granting Cruise Solutionss motion to quash.

As we have determined that the exercise of personal jurisdiction over Cruise Solutions is not justified under the facts presented here, we need not reach appellants contention that process was served in accordance with the requirements of Code of Civil Procedure section 416.10 and the Hague Convention.[12] That issue is now moot.

Appellant contends the trial court abused its discretion in denying his request to conduct discovery. A trial court may allow discovery to enable a plaintiff to sustain his burden to establish minimum contacts. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) When the nonresident defendant is a corporation, the court should permit discovery of facts showing it has been doing business in this state, as such facts are ordinarily within the exclusive knowledge of the officers of the corporation. (1880 Corp. v. Superior Court (1962) 57 Cal.2d 840, 843.) The trial court may also grant a continuance of the motion to allow the plaintiff to conduct such discovery. (Beckman v. Thompson (1992) 4 Cal.App.4th 481, 487.)

Whether to allow discovery and whether to grant a continuance for that purpose are both matters within the discretion of the trial court. (Beckman v. Thompson, supra, 4 Cal.App.4th at pp. 486-487.) Unless the party seeking discovery demonstrates that discovery is likely to lead to evidence of facts establishing jurisdiction, it is not an abuse of discretion to deny the request. (In re Automobile Antitrust Cases I &II (2005) 135 Cal.App.4th 100, 127.) On appeal, [t]he burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice[,] a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

As noted, appellant did not contest Cruise Solutionss evidence showing an absence of contacts with the State of California. His sole argument on appeal is that he requested the opportunity to conduct discovery, but the request was denied. Appellants oral request in the trial court and his later written request were similarly devoid of any attempt to demonstrate discovery was likely to lead to evidence of facts establishing jurisdiction. Thus, the trial court was not required to grant the request, and appellant has failed to meet his burden to show the courts refusal was an abuse of discretion. (See In re Automobile Antitrust Cases I &II, supra, 135 Cal.App.4th at p. 127.)

DISPOSITION

The judgments of dismissal in favor of Princess and Cruise Solutions are affirmed. Respondents shall have their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J. SUZUKAWA, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[2] See California Rules of Court, rule 8.104(e).

[3] The elements of a joint venture are a joint interest, an agreement to share profits and losses and a right to joint control. (Ramirez v. Long Beach Unified School Dist. (2002) 105 Cal.App.4th 182, 193.) Joint ventures are nearly identical to partnerships, and as in the case of partners, the negligence of one co-venturer may be imputed to the other. (Leming v. Oilfields Trucking Co. (1955) 44 Cal.2d 343, 350.) Appellant does not contend that Princesss liability is vicarious as a co-venturer of Cruise Solutions, and the FAC alleges no facts amounting to the elements of a joint venture. Thus, we treat the joint venture allegations as mere legal conclusions with no effect on the pleadings. (See Nguyen v. Scott (1988) 206 Cal.App.3d 725, 733; see generally 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 339, pp. 436-438; id.,  345, pp. 444-447; id., 353, pp. 453-454.)

[4] State courts have concurrent jurisdiction over maritime claims. (Offshore Logistics, Inc. v. Tallentire (1986) 477 U.S. 207, 222.)

[5] The third cause of action against Princess for Common Carrier Negligence incorporated all the factual allegations of the other causes of action, and alleged that Princess was a common carrier under California law. Respondent contends the third cause of action is defective because Princess was not a common carrier. Cruise ships are common carriers, but are subject to maritime law, not state law. (Kornberg v. Carnival Cruise Lines, Inc. (11th Cir. 1984) 741 F.2d 1332, 1334.) Thus, the standard of care for ordinary negligence is the standard articulated in Kermarec, not the standard applicable to common carriers under state law. (Bird v. Celebrity Cruise Line, Inc. (S.D.Fla. 2005) 428 F.Supp.2d 1275, 1281.) As California law is inapplicable, the third cause of action is no more than a restatement of the second cause of action for ordinary negligence. Thus, we consider the third count to be surplusage, and disregard it. (See Oppenheimer v. City of Los Angeles (1951) 104 Cal.App.2d 545, 549.)

[6] Appellant also cites Tradewind Transportation Company v. Taylor (9th Cir. 1959) 267 F.2d 185, but that case involved a land-based tour not connected to a ship or the sea in any manner.

[7] Constructive notice is defined in California as actual notice of circumstances sufficient to put a prudent person upon inquiry as to a particular fact which, if followed, might lead to learning that fact. (Civ. Code, 19.)

[8] Specifically, appellant suggests that because the cruise ticket required suits by passengers against Princess to be brought in Los Angeles and provided that its provisions applied to and for the benefit of any agents and independent contractors, passengers were misled into believing any suit against such contractors could be brought in Los Angeles.

[9] A party is subject to specific jurisdiction where the particular cause of action arises out of or relates to partys contacts with the forum. (Burger King, supra, 471 U.S. at pp. 472-473 & fn. 15.) A party is subject to general jurisdiction in any matter, regardless of whether the cause of action arose out of his or her contacts in the forum state, so long as the partys contacts are substantial, continuous and systematic. (Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 445-446.)

[10] Appellant refers to the declaration of Graham Davis, a Princess employee, stating among other things, that the operations manual was a contract. Respondent notes that the trial court sustained respondents objection to the declaration, and struck it. Reference to the declaration was unnecessary, as appellant submitted Cruise Solutionss discovery response admitting the operations manual was a contract or agreement between it and Princess.

[11] Consent is an essential element of any contract, and must be free, mutual and communicated. (Civ. Code, 1550, 1565, 1580.)

[12] Code of Civil Procedure section 416.10 requires service upon an agent for service, an officer or a manager. Appellant served Cruise Solutions by certified mail addressed simply to Cruise Solutions Belize, Ltd., without specifying an agent for service, officer or manager.