MARTIN v. BMG ENTERTAINMENT
Filed 4/27/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
| MARTIN OLINICK, Plaintiff and Appellant, v. BMG ENTERTAINMENT et al., Defendants and Respondents. | B179478 (Los Angeles County Super. Ct. No. BC312117) |
APPEAL from an order of the Superior Court of Los Angeles County,
Alexander H. Williams, III, Judge. Affirmed.
Marcin Barrera & O'Connor, Patricio T.D. Barrera; Esner & Chang and Stuart Esner for Plaintiff and Appellant.
Proskauer Rose, Harold M. Brody and Christine De Bretteville for Defendants and Respondents.
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Plaintiff and appellant Martin Olinick (Olinick) appeals an order granting a motion by defendants and respondents BMG Music (BMG) et al. to stay the action on the ground of inconvenient forum. (Code Civ. Proc., § 418.10.)[1] The trial court stayed the action for six months, pending Olinick's filing suit in New York.
The essential issues presented are whether the instant action is within the ambit of the employment agreement's forum selection and choice of law provisions, which require this dispute to be tried in New York pursuant to New York law, and if so, whether those contractual provisions are unenforceable as against public policy.
We conclude Olinick's statutory cause of action for age discrimination under the Fair Employment and Housing Act (FEHA) (Gov. Code., § 12940) as well as his common law cause of action for wrongful discharge in violation of the public policy against age discrimination are subject to the agreement's forum selection and choice of law provisions, and that those provisions do not violate California public policy. Accordingly, the order enforcing the forum selection and choice of law provisions is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Martin Olinick, a lawyer who is admitted to both the New York and California bars, began working for BMG's predecessor, RCA Records, in New York in 1971. In 1977, Olinick and his family relocated to the West Coast. In 1986, BMG acquired RCA. BMG is a New York general partnership whose worldwide headquarters and principal place of business is located in New York City. Olinick ultimately attained the level of senior vice president at BMG with a salary of over $300,000 per year.
In 1991, 1994 and 1997, Olinick and BMG entered into written three year employment agreements.
a. The instant employment agreement.
On November 10, 2000, Olinick and BMG executed the subject eight-page employment agreement covering the period between July 1, 2000 and October 31, 2004 (the Agreement). The Agreement was the product of nine months of contract negotiations, conducted almost entirely in New York. In the negotiations, Olinick was represented by a New York-based music industry law firm and BMG was represented by its New York-based in-house counsel and executives. The parties exchanged more than ten drafts before coming to an agreement.
The Agreement contains many of the usual provisions, including duties, the term of employment, compensation and benefits.
The Agreement provided Olinick could be terminated without cause, provided that certain compensation was paid to him.[2] The Agreement also gave BMG the right to terminate Olinick for cause and specified the compensation in that situation as well.[3]
The provision which is the focus of this controversy is Paragraph G, which is both a choice of law provision and a forum selection provision. Paragraph G states: â€
