TRB Network v. Woori Pharmacy
Filed 12/29/08 TRB Network v. Woori Pharmacy CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TRB NETWORK, INC., Plaintiff and Respondent, v. WOORI PHARMACY, INC., Defendant and Appellant. | B204335 (Los Angeles County Super. Ct. No. BC353380) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Mel Red Recana, Judge. Affirmed.
JHK Law Group, Inc., Jae H. Kim for Defendant and Appellant.
Marh & Associates, David Marh, Simon H. Langer for Plaintiff and Respondent.
___________________________________________________
The parties to this appeal entered two contracts, each containing a forum selection clause. The clause states that the contracts may be enforced by an arbitration panel, in superior court or in federal court, so long as the forum is located in Southern California. Plaintiff instituted litigation in superior court. Sixteen months later, defendant moved to compel arbitration. The trial court denied the petition because the forum clause permits disputes to be resolved in any of the three specified fora, and plaintiff chose litigation, not arbitration. We affirm.
FACTS
On July 22, 2005, plaintiff TRB Network Group, Inc., and defendant Woori Pharmacy, Inc., entered two distribution agreements (the Agreements). The Agreements each contain an identical clause entitled Forum. The Forum Clause reads: For the purpose of interpreting and/or enforcing this Agreement, the parties hereby voluntarily and knowingly choose the approved arbitration panels in Southern California, the California state courts in Southern California or the U.S. District Court of Central District to be the chosen forum, and agree that such arbitration panels and courts have personal jurisdiction over the parties. The parties hereby voluntarily and knowingly waive all defenses of forum nonconveniens and/or improper venue.
In June 2006, plaintiff sued for breach of the Agreements. On October 22, 2007, four months before trial, defendant filed a petition to compel arbitration. Defendant argued that the Forum Clause requires that petitioner and respondent arbitrate their controversy . . . . Defendant asked the court to stay proceedings until arbitration was completed. Plaintiff opposed the motion to compel arbitration.
On December 4, 2007, the trial court denied defendants motion. The court found that the Agreements do not require arbitration. Rather, the court concluded, the Forum Clause affords three options, and plaintiff chose the option of fighting this case in this court and . . . once the choice has been made, [its] done. A timely appeal from the denial of defendants motion was filed on December 6, 2007.
DISCUSSION
The trial courts denial of defendants petition to compel arbitration is an appealable order. (Code Civ. Proc., 1294, subd. (a).) Arbitration is a matter of contract. (Marsch v. Williams (1994) 23 Cal.App.4th 250, 255.) A party cannot be forced to arbitrate in the absence of an agreement to do so. (Ibid.; Arista Films, Inc. v. Gilford Securities, Inc. (1996) 43 Cal.App.4th 495, 501.) The interpretation of the parties agreement--and whether it requires arbitration--presents a question of law that is reviewed de novo, in the absence of conflicting extrinsic evidence. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1527.)
Defendant correctly cites the law governing the interpretation of contracts. The language of the contract governs its interpretation if the language is clear and explicit. (Civ. Code, 1638.) The intention of the parties is to be ascertained from the contract alone, if possible. (Civ. Code, 1639.) The contract must be interpreted in a manner that will make it lawful, operative, definite, reasonable and capable of being carried into effect, if it can be done without violating the intention of the parties. (Civ. Code, 1643.) The words of the contract are to be understood in their ordinary and popular sense. (Civ. Code, 1644.) If the language is uncertain, it should be interpreted most strongly against the party that drafted it. (Civ. Code, 1654.)
Forum selection clauses are valid and enforceable absent a showing that enforcement would be unreasonable and unjust, or that the clause is invalid due to fraud or overreaching. (The Bremen v. Zapata Off-Shore Co. (1972) 407 U.S. 1, 15; Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1678-1679.) This Court had occasion to consider a forum clause in Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349. In Berg, the defendant agreed to submit to the jurisdiction of the State of California and the United States Federal courts sitting in the City of Los Angeles, California, for the purpose of any suit, action or proceedings . . . . (Id.at p. 357.) We characterized this as a permissive forum selection clause because it did not clearly mandate litigation in a particular forum: Clauses that grant jurisdiction to a particular forum without expressly making that forum the mandatory situs for resolution of disputes are considered permissive only. (Id.at p. 359.)
Defendant does not contend that the Forum Clause in the Agreements is the result of fraud or overreaching. Nor does defendant argue that enforcement of the clause is unreasonable or unjust. Indeed, defendant agrees that the clause is valid and enforceable. Defendant argues that the clause is, at most, ambiguous.
The Forum Clause is not ambiguous. As in the Berg case, this is a permissive forum selection clause. It lists the different forum options available to the parties in the event of a dispute, without clearly mandating the use of one forum. This is clear from the language used. The parties chose arbitration, the state courts or the federal district court. The one limitation imposed by the clause is that the dispute has to be resolved in Southern California.
Defendant engages in verbal acrobatics in an attempt to convince us that arbitration is the only type of dispute resolution contemplated by the Agreements. Yet the language used is clearly disjunctive: it lists arbitration, state court or federal court as a possible forum. It is illogical to read the clause, as defendant does, to say that parties may use arbitration panels of the superior or federal courts, not the courts themselves. The clause expressly grants jurisdiction to the arbitration panels and courts, whichever of the three might be chosen by the party claiming a breach of the Agreements. The Forum Clause is susceptible to only one interpretation, and that is the interpretation correctly identified by the trial court as giving plaintiff a choice of forum. Plaintiffs selection of the superior court cannot be derailed by defendants eleventh-hour desire for arbitration.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.
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