Barend Venter et al v. Ofer Yannay et al

On October 3, 2024, Plaintiffs filed a Motion for Reconsideration. The Court denied that motion by Minute Order of October 30, 2024, finding that “Plaintiffs’ failure to identify ‘what

new or different facts, circumstances, or law are claimed to be shown’ leaves the Court without jurisdiction to hear the motion to reconsider” pursuant to Code of Civil Procedure, section 1008, subdivision. (a).

On November 18, 2024, the Court issued, sua sponte, an Order for Reconsideration of the 8/29/24 Order After Hearing (11/18/24 Order for Reconsideration) based on the holding in The Comedy Store v. Moss Adams LLP (2024) 106 CA5th 784 (The Comedy Store). The Court specifically relied on two aspects of that opinion: 1) where a defendant seeks to enforce a forumselection clause with a jury waiver, it is that moving defendant’s burden to show that the chosen forum will apply California law in determining whether the waiver is enforceable; and 2) an agreement to waive the jury-waiver, signed only by the moving defendant, is not enforceable and therefore does not, alone, support a decision, by a trial court, to enforce the forum-selection clause.

The Court, in the 11/18/24 Order for Reconsideration, noted that it had not undertaken the burden-shifting analysis compelled by the first aspect of the holding, and that the terms of the 8/29/24 Order After Hearing violated the second aspect of the holding. For this reason, the Court vacated the 8/29/24 Order After Hearing, invited subsequent briefing based on the holding in The Comedy Store, and set the matter for rehearing of Nofar’s Motion to Dismiss Based on Inconvenient Forum.

Prior to that hearing, on February 11, 2025, our Supreme Court granted review of The Comedy Store. On February 25, 2025, this Court, on stipulation of the parties, entered an order continuing the rehearing (set by the 11/18/24 Order for Reconsideration) until after the Supreme Court issued an order in that matter.

On July 21, 2025, our Supreme Court issued an opinion overruling the Court of Appeals in Epicenter RX, Inc. v. Superior Court (2025) 18 Cal.5th 58, and disapproving the holdings in The Comedy Store, and Handoush.

By Minute Order of April 17, 2026, the Court set the instant matter for hearing on this date, and granted the parties leave to file additional briefing.

B. LEGAL BACKGROUND

“When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc., § 410.30.) “In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens pursuant to Code of Civil Procedure sections 410.30 and 418.10 [citation], but a motion based on a forum selection clause is a special type of forum non conveniens motion.” (Berg v.

Mtc Electronics Techs. Co. (1998) 61 Cal.App.4th 349, 358 (Berg).) “The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause. [Citation.] . . . if there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect.” (Ibid.)

C. ANALYSIS

The Court finds that, pursuant to the allegations of the Complaint, the first cause of action for fraud and concealment arises out of and relates to the Membership Interest Subscription and Purchase Agreement (“MIPA”) dated May 25, 2021.

Pursuant to the allegations of the Complaint, in or around 2017, Plaintiffs Barend Venter and Venter Ventures LLC, together with others, formed Blue Sky Utility LLC for purposes of serving as a holding company for several other companies referred to collectively as “the BlueSky entities.” (See SAC at ¶¶ 1-5.) Plaintiff further alleges that, “[a]s a result of discussions and negotiations between Blue Sky and Nofar, an agreement was reached whereby Nofar agreed to purchase a 67% interest in Blue Sky in exchange for cash payment of $26 million and a binding commitment by Nofar to provide a debt facility of $65 million for future projects.” (Id. at ¶ 16.) “The Agreement between Blue Sky and Nofar was confirmed in written Membership Interest Subscription and Purchase Agreement (“MIPA”) dated May 25, 2021.” (Id. at ¶ 28.)

By the first cause of action Plaintiff asserts a claim for fraud and concealment against Nofar USA, and O.Y. Nofar, relating to the alleged purchase. (See id. at ¶¶ 106-110.)1

No copy of the MIPA is attached to any of the original, First Amended, or Second Amended Complaints. Nofar USA provides a purported copy thereof as Exhibit A to the Declaration of Roger Huddle filed June 10, 2024 (Huddle Decl.). Plaintiff appears to concede that exhibits’ authenticity by failing to raise any objection thereto.

Plaintiff Barend Venter and Defendant Nofar USA are named parties in and to the MIPA. (See Hubble Decl., Exh. A at preamble.) The MIPA provides, in relevant part, that, “[e]ach of the Parties (a) consents to submit itself or himself exclusively to the personal jurisdiction of the Chancery Court of the State of Delaware or, if unavailable any federal court located in the State of Delaware, in either case, in the event any dispute arises out of this Agreement or any of the transactions contemplated hereby, (b) agrees that it or he will not attempt to deny or defeat the jurisdiction of such courts by motion or other request for leave from any such court, (c) waives any claim that such proceedings have been brought in an inconvenient forum, and (d) agrees that it or he will not bring any Claim relating to this Agreement in any court or other tribunal other than the Chancery Court of the State of Delaware or federal court sitting in the State of Delaware.” (See Huddle Decl., Exh.

A at § 13.2, p. 70.)

The Court finds, from the foregoing, that the forum selection clause encompasses the First Cause of Action. Plaintiffs’ First Cause of Action is based on a series of allegations that Nofar failed to honor its obligations under the MIPA, and the additional allegation that, at the time it entered into that agreement, it had no intention of honoring those obligations. As such, the Court finds that the claim “arises out of . . . the transactions contemplated [by the MIPA]” and that it constitutes a “Claim relating to [the MIPA]” for purposes of enforcing the forum selection clause. (See Huddle Decl., Exh. A at § 13.2, subds. (a) and (d), p. 70.)

1 Each of the allegations discussed herein remain essentially unchanged from the original Complaint in the action.

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.

7