In a recent decision in EpicentRx, Inc. v. Superior Court (July 21, 2025), the California Supreme Court resolved a significant question about the enforceability of contractual forum selection clauses that direct litigation to jurisdictions that do not provide for a civil jury trial.
The Court held that, notwithstanding the constitutional right of California residents to a civil jury trial, a forum selection clause does not become unenforceable in California courts simply because a jury trial will not be available in the chosen jurisdiction. This decision reversed the Court of Appeal, which had refused to enforce a Delaware Chancery Court forum selection clause on public policy grounds.
Kibler Fowler & Cave attorneys played a significant role in the development of this body of law through their representation of the plaintiff in Himelsein Mandel Fund Mgmt., LLC v. Fortress Inv. Grp. LLC, 2019 WL 1395963 (Cal. Ct. App. Mar. 28, 2019) (“HM”), an important California Court of Appeal decision addressing the enforceability of contractual jury waivers in California courts. In HM, litigation arose from a 2010 joint venture and credit agreement between KF&C client HM and Fortress Investment Group. HM had demanded a jury trial but the trial court (erroneously) struck its demand based on a contractual jury trial waiver because the contract was governed by New York law, forcing the case to proceed as a bench trial over HM’s objection. On March 28, 2019, the California Court of Appeal reversed, holding that “the denial of [HM’s] right to a jury trial in this case was a structural defect,” and ordered the case remanded to the Superior Court for a retrial before a jury, thereby reviving HM’s fraud claims. (Read more about the HM case here). The HM decision underscored the significance of civil jury trial rights in California courts. The EpicentRx decision sets a limit on how far California courts will go when addressing contract provisions that affect California residents’ right to civil jury trials.
EpicentRx Case Background
EpicentRx, a Delaware corporation headquartered in California, was sued by a minority stockholder for breach of contract, fraudulent concealment, and related claims. The corporation’s certificate of incorporation and bylaws included mandatory forum selection clauses designating the Delaware Court of Chancery as the exclusive forum for most stockholder disputes.
The trial court denied EpicentRx’s motion to dismiss for forum non conveniens, reasoning that the Delaware Court of Chancery does not conduct jury trials, and as such, the forum selection clause operated as a predispute jury trial waiver. Such waivers are prohibited in California under Grafton Partners v. Superior Court (2005) 36 Cal.4th 944; see also Himelsein, supra, 2019 WL 1395963.
The Court of Appeal agreed, relying heavily on Handoush v. Lease Finance Group, LLC (2019) 41 Cal.App.5th 729, which imposed a burden-shifting rule when unwaivable California rights might be impaired. By shifting the burden to parties seeking to enforce a forum selection clause to prove that the forum did not impair a California resident’s rights, Handoush extended Grafton’s holding to forum selection clauses that direct litigation to jurisdictions that did not provide for an unwaivable jury trial right. (Id. at *739 (“Because New York permits predispute jury trial waivers, and California law does not, enforcing the forum selection clause has the potential to operate as a waiver of a right the Legislature and our high court have declared unwaivable.”).) Relying on Handoush, the Court of Appeal struck down the EpicentRx forum selection clause as contrary to California public policy.
The California Supreme Court’s Analysis
The Supreme Court disagreed with both lower courts and reversed. While reaffirming California’s strong public policy protecting the jury trial right in California courts, the Court clarified that this protection does not extend to proceedings in other jurisdictions.
The Court explained that a predispute jury trial waiver, like the ones at issue in Grafton and HM, addresses how a case will be tried in California courts. A forum selection clause, by contrast, addresses where the case will be tried. Although choosing a forum without jury trials may have the same practical effect as waiving a jury trial, the Court found the two are not legally equivalent for public policy purposes—and disapproved Handoush to the extent it held otherwise.
The Court also noted that such clauses are routinely enforced in cross-border commercial contexts even when the foreign forum lacks jury trials, and that allowing jury trial concerns alone to invalidate these clauses would itself undermine public policy. Among other commercial effects, the Court noted that barring forum selection clauses to foreign jurisdictions could deprive California businesses of the opportunity to do business with foreign entities.
California Courts Still May Refuse to Enforce a Forum Selection Clause
Although the Court reaffirmed the general enforceability of forum selection clauses, the Court’s opinion does not prohibit California courts from invalidating them. For instance, California law contains express venue protections for certain employment contracts, franchise agreements, and construction subcontracts. Forum selection clauses that violate these protections may remain contrary to public policy.
Furthermore, the Court left open the possibility that California’s strong public policy in favor of the right to a jury trial “might be relevant, in combination with other factors, to the enforceability of a forum selection clause under other theories.” (EpicentRx, supra at *30.) For instance, the lack of a jury trial right could be a consideration to a challenge to a forum selection clause on the grounds of unconscionability or lack of reasonableness. These types of challenges to forum selection clause enforcement require a more nuanced analysis, but EpicentRx certainly provides strong support in favor of enforcement in those circumstances.
Key Takeaways
- Forum selection clauses may remain enforceable even if the chosen forum, like Delaware Chancery, does not provide a civil jury trial.
- California’s acute jury trial protections apply only to litigation in California courts; they do not create a blanket public policy against litigating elsewhere even when doing so deprives a California resident of a right to a jury.
- The decision disapproves Handoush and rejects its burden-shifting framework for cases involving only the jury trial right.
- Forum selection clauses can still be defeated if they violate statutory prohibitions, were procured unfairly, or have no legitimate basis.
Practice Tips
The California Supreme Court’s decision in EpicentRx, Inc. v. Superior Court confirms that forum selection clauses are not automatically unenforceable simply because the chosen forum, such as the Delaware Court of Chancery, does not offer jury trials. Practitioners should avoid arguing that these clauses are implied jury trial waivers, as the California Supreme Court has clarified that California’s jury trial protections do not extend to prohibiting forum selection clauses to non-jury trial jurisdictions.
When challenging such clauses, attorneys must present substantial and specific public policy concerns beyond the mere loss of a jury trial (although the unavailability of jury trials in foreign jurisdictions may remain a non-dispositive factor in a Court’s analysis). When seeking to uphold such clauses, attorneys may cite to EpicentRx to argue that California policy protecting civil jury trials does not extend to limiting parties’ agreements to try their cases in other jurisdictions.
For further questions or comments on the content of this post, please email Michael Kibler ([email protected]) or Andrew Whitman ([email protected]).
