Filed 11/23/05 Thomson v. Lo Presti Speed Merchants CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BRETT D. THOMSON et al., Plaintiffs and Appellants, v. LO PRESTI SPEED MERCHANTS, INC., Defendant and Respondent.

B180583 (Los Angeles County Super. Ct. No. LC068799)

APPEAL from an order of the Superior Court of Los Angeles County, Richard G. Kolostian, Sr., Judge. Affirmed.

Mchaelis, Montanari & Johnson, Garry L. Montanari and Wesley S. Wenig for Plaintiffs and Appellants.

Kern & Wooley LLP, R. M. Kern and Michael H. Raichelson for Defendant and Respondent.

I. INTRODUCTION

Plaintiffs, Brett D. Thomson and Doll Electric Company, Inc., appeal from a dismissal order in favor of defendant, LoPresti Speed Merchants, Inc., a Florida corporation. We conclude: California does not have jurisdiction of this dispute; the parties' forum selection clause warrants litigation of this dispute in Florida; and the trial court did not abuse its discretion in declining to allow further delay to allow plaintiffs to commence discovery. Accordingly, we affirm the dismissal order.

II. BACKGROUND

This action arose out of the June 2002 emergency landing of an airplane in California. Plaintiffs alleged as follows. Defendant contracted to install a quick oil drain assembly in an aircraft engine. Defendant did so negligently. The negligent installation caused the aircraft engine to fail and made the emergency landing necessary. Plaintiffs suffered damages including the destruction of the engine, loss of use of the aircraft, and repair costs. Plaintiffs asserted causes of action for negligence and contract breach.

Defendant filed a motion to quash service of the summons and to dismiss the complaint on insufficient contacts grounds. Defendant presented evidence: the contract was entered into in Florida; defendant's sole facility is in Florida; defendant is incorporated in Florida; all installation work was performed at defendant's facility in Florida; defendant is not incorporated, is not licensed to do business, and does not have any facilities in California; defendant has never had a California facility; after the work was completed in Florida, plaintiffs flew the aircraft to California; plaintiffs contracted with Tule River Aero-Industries for annual aircraft inspections; Tule River Aero-Industries is an independent California entity; Tule River Aero-Industries is a dealer of defendant's products; but Tule River Aero-Industries sells other manufacturer's products and services as well; defendant has never received any funds for any of the work performed for plaintiffs by Tule River Aero-Industries; plaintiffs specifically agreed venue would be in Florida and the contract would be governed by Florida law; the invoices that Mr. Thomson signed stated, â€