TENTATIVE RULING

Calendar:    10

Date:          3/14/2025 

Case No: 22 GDCV00336 Trial Date: May 12, 2025 

Case Name: Korea Trade Insurance Corporation v. Mix & Match Apparel, Inc.

MOTION TO CONFIRM ARBITRATION AWARD

Moving Party:            Cross-defendant Mido Trade Co., Ltd.       

Responding Party: Cross-complainant Mix & Match Apparel, Inc.      

RELIEF REQUESTED:

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Korea Trade Insurance Corporation alleges that it is the assignee to Mido Trade Co., Ltd, and brings this action for common counts, alleging that defendant Mix & Match Apparel, Inc. has become indebted to plaintiff in the sum of $152,244.49.  The complaint alleges causes of action for open book account, account stated, and reasonable value.  

Defendant Mix & Match Apparel, Inc. (Mix & Match) has filed a cross-complaint against Mido Trade Co., Ltd. (Mido Trade), alleging that in July and August of 2020, cross-complainant and cross-defendant entered into a written agreement by way of a series of purchase orders and invoices whereby cross-defendant agreed to sell and cross-complainant agreed to purchase certain women’s leggings.  The cross-complaint alleges that cross-defendant breached the contract by failing to deliver conforming goods, failing to have the goods manufactured at the main factory of cross-defendant, placing false UPC codes on the goods, failing to inspect the goods in a proper manner, and delivering goods that were “bleeding” and had sewing defects so that the goods failed to pass inspection with an acceptable defect rate.  The cross-complaint alleges that as a direct result of cross-defendant’s breach, cross-complainant has been damaged.  

It is also alleged that during the negotiations for the sale of the goods, cross-defendant falsely represented the goods would be manufactured at the main factory of cross-defendant, that correct UPC codes would be placed on the goods, and that the goods would be inspected in a proper manner and pass inspection at an acceptable defect rate and that the goods would otherwise conform to the specifications required by cross-complainant.  The cross-complaint alleges causes of action for breach of contract, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, fraud, negligent misrepresentation, and fraudulent billing. 

The file shows that on March 27, 2023, cross-defendant Mido Trade filed a motion for change of venue, seeking an order changing the place of the trial of the cross-complaint to the Court of Seoul in accordance with the Arbitration Rules of the Korean Commercial Arbitration Board.  The motion was noticed to be heard on April 28, 2023.  

Cross complainant Mix & Match filed an opposition to the motion, arguing that the motion was not a motion for change of venue of the action to another county, but a motion attempting to transfer jurisdiction to arbitration in Seoul, Korea, using the incorrect procedural device.  The opposition also argued that to the extent the motion was a petition to compel arbitration, it had no merit, on various grounds.   

At the hearing on the motion on April 28, 2023, the court had evidently posted its tentative ruling, which was to deny the motion, procedurally and on its merits, and award Mix & Match expenses and attorney’s fees to oppose the motion pursuant to CCP section 396b(b), in the sum of $2,600.00.  The minute order indicates that the Court and counsel conferred, and, pursuant to oral stipulation, the hearing on the motion was continued to May 11, 2023. 

On May 5, 2023, Mido Trade filed and served a Withdrawal of Motion for Change of Venue, withdrawing its motion for change of venue filed on March 27, 2023.   The May 11, 2023 hearing was vacated by the court.  

ANALYSIS:

Procedural

Copy of Agreement and Award

CCP § 1285.4 provides:

“A petition under this chapter shall:

(a) Set forth the substance of or have attached a copy of the agreement to arbitrate...

(b) Set forth the names of the arbitrators.

(c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”

CCP § 1285 provides:

“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”

CCP § 1286 provides:

“If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made... unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” 

A trial court decision confirming an arbitration award will be upheld on review if it is supported by substantial evidence.   Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.   

Here, there is no evidence, so no substantial evidence, upon which the court may find that the parties were parties to an arbitration agreement, or may evaluate the terms of the award.   The motion is accordingly denied. 

No appropriate translation documentation

The memorandum in support of the motion indicates, “Copy of the Arbitration Award in Korean language and a court-certified translated version of the Award is hereby attached as Exhibit 4.”  [Memorandum, p. 4:1-2].  

There is no declaration authenticating those documents, and no document showing that what appears to be the translated version is a translation, who was the translator, or showing any court certification. [See Ex.4].  

CCP § 185 provides, in pertinent part:

“(a) Every written proceeding in a court of justice in this state shall be in the English language, and judicial proceedings shall be conducted, preserved, and published in no other.”

CRC Rule 3.1110 (g) provides:

“Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.”

Under CCP § 2015.5, whenever any matter is required to be supported by a sworn “certificate” or “oath,” such matter may be supported or proved by a statement in writing “which recites that it is certified or declared…to be true under penalty of perjury, is subscribed”  by the declarant, and “if executed within this state, states the date and place of execution.”  The statute also requires, “if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.”  

There is no such certification submitted here, and this evidence accordingly is disregarded by the court.   

What is usually done is that with the document in the original language, an interpreter provides an English language translation, certified under oath, as well as a description of the translator’s qualifications.  This protocol permits the other side and the court to confirm the accuracy of the translation if necessary.  This requirement is not done here, and the accuracy of the translation and the qualifications of the translator accordingly cannot be tested.  In addition, there has been no document submitted by any translator, so the translator has not certified any translation under oath.  The showing accordingly is improper, and the Award is not considered as admissible, let alone substantial, evidence in support of the motion.  The motion accordingly is continued for a further showing. 

RULING:

Cross-defendant Mido Trade Co., Ltd’s Motion to Confirm Arbitration Award is CONTINUED.

The motion is not accompanied by a declaration or other documentation authenticating or providing an evidentiary foundation for consideration of the attachments purporting to be an arbitration agreement and an arbitration award.  The opposition has objected on this ground, and cross-defendant in the reply has not attempted to remedy this defect. 

Evidentiary Objections in Opposition to Motion to Confirm Arbitration Award are SUSTAINED. 

UNOPPOSED Request for Judicial Notice in Opposition to Motion to Confirm Arbitration Award is GRANTED.  The Court takes judicial notice of the court records submitted to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g, the Court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case, such as orders, findings of fact and conclusions of law, and judgments.)

The Court has the following concerns and questions which should be addressed in any further or continued motion and opposition:

Did Mix & Match Apparel, Inc. participate in the arbitration, particularly when at least one of the purchase orders required arbitration?    

There are representations by both sides that the claims raised in the cross-complaint here concerning the quality or non-conformity of the goods were not raised or addressed in the arbitration.  Is this correct?  Why were these claims not raised?  What is the effect of this evidently incomplete arbitration on the proceedings in this matter?  Has there been a waiver of the claims due to a failure to raise them in arbitration?

Did plaintiff Korea Trade Insurance Corporation participate in the arbitration?   Is that party objecting to its lack of participation?  Did  the arbitration take place between improper parties, when Mido Trade Co., Ltd. no longer had standing to pursue affirmative claims to recover on its claims for payment on the merchandise when it had already been paid by its insurer, giving rise to subrogation rights in the insurer, and the claims had been affirmatively assigned to the insurer, as has been represented consistently by plaintiff insurer throughout this litigation?  The opposition submits a Letter of Assignment, representing that the insurance money was paid by plaintiff on October 12, 2021, and that the exporter, Mido Trade, irrevocably assigned to the insurer all claims, credits, demands, and all rights of whatsoever nature in relation to the contract.  [Ex. B, para. 1].  The Letter of Assignment was executed by Mido Trade as exporter on January 26, 2022, before the arbitration was commenced by Mido Trade on January 11, 2023.  [Ex. B., p. A-4].    It would appear that there was no representation in the arbitration of the real party in interest with standing.  

Does this court have the authority to order that the arbitration be reopened?

What would be the effect on this action if the arbitration award is confirmed?  Would the arbitration award resolve the complaint or the cross-complaint?  Would the parties then voluntarily dismiss the respective pleadings, or would a motion be required to summarily adjudicate issues based on res judicata?     

Did the arbitrator exceed the scope of the arbitration agreement by determining P.O. M2002, which was not subject to an arbitration agreement?  The reply represents that the portion of the award which concerned P.O. M2002 was $3,171.79.  Is this correct?  Can the award be easily apportioned by reference to admissible evidence with respect to the portion of the award directed to P.O. M2001?  

If appropriate, motion is continued to May 2, 2025.  Supplemental moving papers, opposition papers, and reply papers addressing the issues above are to be filed and served according to Code based on the new hearing date. 

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

VIDEO APPEARANCES

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If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.