Judge: Anne Richardson, Case: 23STCP00466, Date: 2023-04-20 Tentative Ruling

Case Number: 23STCP00466    Hearing Date: April 20, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Petitioner Carol Shpiro (Petitioner) brings this unopposed February 17, 2023 Petition to Compel Arbitration against Respondent Liberty Mutual Insurance Company (Liberty) pursuant to the following allegations.

On February 6, 2018, at the intersection of Haskell Avenue and Vanowen Street, Van Nuys, California, Petitioner was involved in a traffic collision with an uninsured motorist, Alyssa Moody. As a direct and proximate result of the collision, Petitioner sustained significant injuries and damages and retired early from employment with the Los Angeles Unified School District.

At the time of the accident, Petitioner Shpiro was insured with Liberty. Petitioner had a $250,000 limit on her Uninsured Motorist coverage with Liberty. Petitioner also had an Umbrella Policy with Liberty in the amount of $500,000.

A claim with Liberty was filed by Petitioner Shpiro shortly after the accident and prior to August 6, 2018. Liberty was notified on or about August 6, 2018 that Petitioner would be retaining counsel.

This claim has now been pending for over four years but Liberty refuses to agree to and take any steps to arbitrate the case. For example, Liberty has propounded discovery from and deposed Petitioner Shpiro, as well as represented that it is interested in settling the claim made by Petitioner while simultaneously ignoring numerous requests for arbitration made by Petitioner through counsel between 2020 and 2022. Liberty also failed to make any offer to settle the case in an August 2022 mediation between the parties and rejected a section 998 offer from Petitioner that same month on the ground that the offer was premature but nevertheless noticed a medical examination of Petitioner Shpiro in Pomona, California under circumstances where Liberty has refused to reschedule the examination with a qualified orthopedist in the San Fernando Valley, UCLA, Pasadena, Santa Monica, West Los Angeles, or Los Angeles, California, inconveniencing Petitioner, who resides in Porter Ranch, California, at the “very limit” of the 75-mile rule under the Code, as based in travel to Pomona, California.

Petitioner Shpiro now brings this February 17, 2023 petition to compel arbitration between the parties pursuant to an arbitration clause in the parties’ injury liability insurance policy.

Service of the petition and other papers was effected on Liberty on March 8, 2023 through personal service on Liberty’s authorized person for process, Koy Saechao.

Petition to Compel Arbitration: GRANTED.

Legal Standard

Pursuant to Code of Civil Procedure §1281.2, generally, on a petition to compel arbitration, the court must grant the petition unless it finds that (1) no written agreement to arbitrate exists, (2)¿the right to compel arbitration has been waived, (3) grounds exist for revocation of the agreement, or (4) litigation is pending that may render the arbitration unnecessary or create conflicting¿rulings on common issues.

When seeking to compel arbitration, the initial burden lies with the moving party to demonstrate the existence of a valid arbitration agreement by preponderance of the evidence. (Ruiz v. Moss Bros. Auto Group (2014) 232 Cal.App.4th 836, 841-842; Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165.) It is sufficient for the moving party to produce a copy of the arbitration agreement or set forth the agreement’s provisions. (Gamboa v. Northeast Community Clinic, supra, at p. 165.) The burden then shifts to the opposing party to prove by a preponderance of evidence any defense to enforcement of the contract or the arbitration clause. (Ruiz v. Moss Bros. Auto Group, supra, at p. 842; Gamboa v. Northeast Community Clinic, supra, at p. 165.) Subsequently, the moving party must establish with the preponderance of admissible evidence a valid arbitration agreement between the parties. (Gamboa v. Northeast Community Clinic, supra, at pp. 165-166.)

The trial court then weighs all the evidence submitted and uses its discretion to make a final determination. (Ibid.) “California law, ‘like [federal law], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims.’” (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.)

Analysis

In her Petition, Petitioner Shpiro sets forth that “[t]he bodily injury liability insurance policy [between the parties] contains an agreement to arbitrate Petitioner’s claim[s] in the event that Petitioner and [R]espondent, LIBERTY MUTUAL INSURANCE COMPANY, are unable to agree whether Petitioner is entitled to recover damages or on the amount of damages Petitioner is entitled to recover damages.”

The Court finds this statement sufficiently carries Petitioner’s burden of setting forth the contractual provision at issue. (Gamboa v. Northeast Community Clinic, supra, at p. 165.) The Court is also satisfied that the instant petition involves subject matter within the ambit of the parties’ arbitration agreement because the petition involves a dispute between the parties as to Petitioner’s entitlement to a payout from Liberty based on injuries suffered by Petitioner as a result of a vehicle collision with an uninsured motorist.

The Court also finds that Respondent Liberty fails to prove by a preponderance of evidence any defense to enforcement of the contract or the arbitration clause because Liberty has failed to oppose this petition. (See Ruiz v. Moss Bros. Auto Group, supra, at p. 842.)

Further, the Court finds that Petitioner has not waived a right to arbitration because Petitioner has attempted for several years to reach an agreement with Liberty to submit Petitioner’s claim to arbitration without the need for Court intervention. (See Petition, ¶¶ 8-25, Ex. A [showing October 2020 to November 2022 communications from Petitioner Shpiro’s counsel to Liberty requesting arbitration to no avail].) Respondent Liberty’s failure to oppose this motion supports this finding. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [“The failure to file opposition creates an inference that the motion or demurrer is meritorious”].)

Petitioner Shpiro’s petition is therefore GRANTED.

The Court orders Petitioner to provide a copy of the contract containing the arbitration agreement in order to appoint an arbitrator for this matter.  (Code Civ. Proc., § 1281.6 [requiring that the Court read the contract between the parties to determine whether the contract provides how to select an arbitrator, and where no such selection clause exists, that the Court give the parties the names of five arbitrators to choose from, with five days after the notice of the Court’s order naming the five arbitrators for the parties to select whether to appoint one of the named arbitrators or another person, where failure to jointly agree to an arbitrator within five days empowers the Court to, of its own initiative, select the arbitrator].)

Conclusion

Petitioner Carol Shpiro’s Petition to Compel Arbitration is GRANTED because an arbitration agreement exists between the parties to arbitrate disputes regarding Petitioner’s claims of liability insurance coverage for motor vehicle accidents with uninsured motorists, Petitioner has in fact made a claim with Respondent Liberty Mutual Insurance Company to arbitrate the question of whether Petitioner is entitled to liability coverage for an accident with an uninsured motorist that took place in 2018, and Respondent Liberty has failed to oppose this petition, thereby failing to carry its burden of showing that defenses exists to prevent the enforcement of the parties contract and arbitration agreement.

The Court will set an OSC re: filing of the arbitration agreement and selection of an arbitrator.