Judge Daniel M. Crowley, Case Number: 24STCP02293, Date: 2025-01-03 Tentative Ruling

Petitioners Vahe Sayan’s, Shushanna Tovmasyan’s, and Azathui Muradyan’s motion to compel arbitration of this matter as to Respondent Progressive Insurance Company is denied, without prejudice.

Petitioners Vahe Sayan (“Sayan”), Shushanna Tovmasyan (“Tovmasyan”), and Azathui Muradyan (“Muradyan”) (collectively, “Petitioners”) move for an order compelling Respondent Progressive Insurance Company (“Progressive”) (“Respondent”) to arbitrate this matter based on Petitioners’ demand for arbitration served on Respondent on May 21, 2024. (Notice of Motion; C.C.P. §§1281.2; Ins. Code §115820.2(f).)

Petitioners filed the operative Petition on July 18, 2024, against Respondent pursuant to the uninsured motorist provisions of their Uber driver, Mohammad Kadkhodazadeh’s (“Kadkhodazadeh”), insurance policy. (See Petition ¶5.)

Petitioners allege that on November 18, 2023, they were involved in a hit-and-run car accident, which caused bodily injury and property damage. (See Petition ¶6.) Petitioners allege Kadkhodazadeh and Respondent have resolved property damage claims, but as to Petitioners’ bodily injury claims, Respondent disputes if Petitioners are legally entitled to collect damages from the owner or operator of the uninsured motor vehicle and/or the amount of those damages. (See Petition ¶7.)

Petitioners filed a notice of motion on August 2, 2024. Respondent filed its opposition on November 27, 2024. Petitioner filed their reply on December 5, 2024.

Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be applicable to these determinations, and all rights, remedies, obligations, liabilities and procedures set forth in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be available to both the insured and the insurer at any time after the accident, both before and after the commencement of arbitration, if any, with the following limitations:

(1) Whenever in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure reference is made to the court in which the action is pending, or provisions is made for application to the court or obtaining leave of court or approval by the court, the court which shall have jurisdiction for the purposes of this section shall be the superior court for the State of California.

Under Insurance Code §11580.2(f), this Court has jurisdiction over the instant uninsured motorist action.

If an insurer refuses to arbitrate or the parties cannot agree on the method of arbitration, the proper remedy is to file a petition for an order compelling arbitration (C.C.P. §1281.2) or appointing an arbitrator (C.C.P. §1281.6). (Ins. Code §11580.2(f); see Gordon v. G.R.O.U.P., Inc. (1996) 49 Cal.App.4th 998, 1005.)

“When the parties to an arbitrable controversy have agreed in writing to arbitrate it and one has refused, the court, under C.C.P. §1281.2, must ordinarily grant a petition to compel arbitration.” (McIsaac v. Foremost Insurance Co. Grand Rapids, Michigan (2021) 64 Cal.App.5th 418, 422, quoting Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 26.)

Section 1281.2 provides, in relevant part, that “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists,” unless one of three enumerated exceptions applies. (C.C.P. § 1281.2, italics added.)

Once the existence of a valid arbitration clause has been established, “[t]he burden is on ‘the party opposing arbitration to demonstrate that [the] arbitration clause cannot be interpreted to require arbitration of the dispute.’” (McIsaac, 64 Cal.App.5th at pg. 422, quoting Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.)

Respondent does not dispute the existence of an enforceable arbitration provision in Kadkhodazadeh’s insurance policy. Rather, Respondent argues it is entitled to investigate and evaluate Petitioners’ claim before arbitration is initiated.

1. the legal liability of the operator or owner of an uninsured auto or an underinsured auto; or

2. the amount of the damages sustained by the insured; this will be determined by arbitration. If the accident involves an uninsured auto, any demand for arbitration must be made within two years of the date of the accident. If the accident involves an underinsured auto, the demand must be made within two years after all applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements and prior to the expiration of the bodily injury statute of limitations in the state in which the accident occurred. An insured demanding arbitration must send written notice to us, or our agent for process, by certified mail, return receipt requested.

Unless both parties agree otherwise, arbitration will take place in the county in which the insured resides. Local rules of procedure and evidence will apply.

In Brehm v. 21st Century Insurance Co. (2008) 166 Cal.App.4th 1225, the Court of Appeal explained the statutory intent of Insurance Code §§11580.2 and 11580.26, which governs UM Arbitrations. The Brehm Court stated:

Neither provision grants the insurer the unfettered right to demand arbitration as soon as a UM/UIM claim is filed; both obligate the insurer to attempt to reach an agreement with its insured before it may invoke arbitration as a means of resolving any disagreement. Section 11580.2, subdivision (f), requires any questions concerning liability or the amount of damages to be decided “by agreement between the insured and the insurer”; only “in the event of disagreement” may the dispute be resolved by arbitration. Similarly, under section 11580.26, subdivision (b), arbitration is available “in the event of disagreement” between the insurer and the insured as to whether the insured is legally entitled to recover the property damages sought. This duty to attempt to agree before arbitrating, clearly imposed by the Legislature, invokes a corresponding duty to do so in good faith.

1. cooperate with us in any matter concerning a claim or lawsuit, including providing us with information regarding the driver’s use of other transportation network company applications at the time of the accident or loss;

3. allow us to take signed and recorded statements, including sworn statements and examinations under oath, which we may conduct outside the presence of you or any person claiming coverage, and answer all reasonable questions we may ask as often as we may reasonably require;

4. promptly call us to notify us about any claim or lawsuit and send us any and all legal papers relating to any claim or lawsuit;

6. submit to medical examinations at our expense by doctors we select as often as we may reasonably require;

7. authorize us to obtain medical records that are reasonably related to the cause of loss or the injuries being asserted and other pertinent records;

8. take reasonable steps after a loss to protect the insured auto from further loss if the coverage sought is for damage to the insured auto under Part II of this policy. We will pay reasonable expenses incurred in providing that protection. If failure to provide such protection results in further loss, any additional damages will not be covered under this policy; and

9. allow us to have the damage to an insured auto or other vehicle involved in the accident or loss inspected and appraised before its repair or disposal.

An insured’s compliance with a policy requirement to submit to an examination under oath is a prerequisite to the right to receive benefits under the policy. If a party seeks to recover by reason of a contract, and he must show that he has complied with such contract on his part. If it appears that the contract has been violated, and thus terminated by the assured, he cannot recover. After an

insured has failed to comply with an insurer’s initial demand for an examination under oath, it becomes incumbent upon him to fulfill the requirement of being examined by offering to submit to such an examination at a later time. (See Brizuela v. CalFarm Insurance Co. (2004) 116 Cal.App.4th 578, 579.)

Here, Respondent demanded Petitioners appear for or schedule an examination under oath (“EUO”) on numerous occasions. Kadkhodazadeh’s insurance policy explicitly states, “We may not be sued by a person, corporation or entity insured by this policy unless there is full compliance by that same insured person, corporation or entity with all the terms of this policy.” (Decl. of Young ¶3, Exh. A at pg. 23, emphasis added.) Petitioners have failed to comply with their duty to appear for EUOs. (See Decl. of Young ¶¶5-13, Exhs. C, D, E.)

Hon. Daniel M. Crowley

Judge of the Superior Court