Department 30, Spring Street Courthouse

July 29, 2022 

22STCV19900

Petitioner Mohammad Alikhani’s Motion to Compel Progressive Insurance Company to Arbitration

The motion is granted.

The case is stayed.

OSC Re: Status of Arbitration/ Post Arbitration Status Conference set for February 6, 2023 at 8:30 a.m. in Department 30 of the Spring Street Courthouse.

Counsel for Petitioner is ordered to sere and electronically file a JOINT Report Re:  Status of Arbitration Proceedings 5-court days prior to 02/06/2023.

The FSC set for 12/01/2023 and Trial set for 12/15/2023 are advanced and vacated. 

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

On June 17, 2022, Petitioner Mohammad Alikhani filed his Petition to Compel Arbitration against Respondent Progressive Insurance Company. This action arises from a car accident which took place in February 2020, when a vehicle collided with Petitioner’s vehicle while Petitioner was driving for Uber. Petitioner settled with the third party for a policy limit of $15,000. Petitioner now seeks to recover under the underinsured motorist provision of his insurance policy with Respondent.  

On July 5, 2022, Petitioner filed a motion to compel Respondent to arbitrate and request to keep the trial date on calendar for Petitioner’s bad faith claims.

Petitioner seeks an order compelling arbitration after failing to reach a settlement with Respondent. 

Respondent does not oppose the motion and filed a statement of non-opposition to Petitioner’s motion to compel arbitration. Respondent also does not oppose Petitioner’s request to keep trial on calendar. 

California Code of Civil Procedure section 1281.2 permits a party to file a petition to request that the Court order the parties to arbitrate a controversy.  Under section 1281.2, a party is permitted to file a motion to request an order directing the parties to arbitrate a controversy.  Section 1281.2 also states that the Court may grant the motion if the Court determines that an agreement to arbitrate the controversy exists. 

When a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. (Rosenthal v. Great Western Financial Sec. Corp. (1996) 14 Cal.4th 394, 413.)  The moving party bears the burden of proving its existence by a preponderance of the evidence because the existence of the agreement is a statutory prerequisite to granting the petition. (Ibid.) 

Since binding arbitration is a matter of contract, the parties may freely delineate the area of its application, and a proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479; Morris v. Zuckerman (1967) 257 Cal.App.2d 91, 96.) Arbitration, as a general rule, should be upheld by the court, unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute. (Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 105; O’Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 490-491.) The court should, nonetheless, give effect to the parties’ intentions in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.) 

Under Insurance Code section 11580.2, subdivision (i)(2), any arbitration instituted pursuant to an uninsured motorist policy shall be concluded within five years from the institution of the arbitration proceeding. (Ins. Code, § 11580.2 subd. (i)(2)(A).) Further, the provisions of Insurance Code section 11580.2 are deemed to be a part of every uninsured motorist policy. (See Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1053; Harford Fire Insurance Co. v. Macri (1992) 4 Cal.4th 318, 324; Travelers Indemnity Co. v. Kowalski (1965) 233 Cal.App.2d 607, 609.) 

There are two “common themes” in case law interpreting the scope of arbitration under section 11580.2 subdivision (f): “(1) arbitration of issues other than liability and damages is appropriate if the parties have contractually agreed to arbitrate more than is required by section 11580.2, subdivision (f); and, (2) only issues of liability and damages may be decided in an arbitral forum if the parties did not agree to arbitrate more than is required by section 11580.2, subdivision (f).” (Bouton v. USAA Cas. Ins. Co. (2008) 43 Cal.4th 1190, 1197.) 

Petitioner meets his burden of showing an arbitration agreement exists. Although Petitioner did not include a copy of the arbitration agreement, California law provides that auto insurers must include the provisions of Ins. Code section 11580.2 in uninsured and underinsured motorist policies. (Ins. Code section 11580.2; Harford Fire Insurance Co. v. Macri (1992) 4 Cal.4th 318, 324.) The determination of whether the insured is legally entitled to recover damages and the amount of damages shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration. (Ins. Code section 11580.2, subd. (f)) Thus, an arbitration agreement exists. 

There is no arbitration agreement attached and thus no evidence to show that arbitration will cover issues other than liability and damages. The parties will be limited to arbitrating issues of liability and damages unless the parties agreed otherwise. (Bouton v. USAA Cas. Ins. Co. (2008) 43 Cal.4th 1190, 1197.)

Petitioner requests that the Court nominate five persons from which the parties may jointly select an arbitrator if their chosen arbitrator is unavailable. Petitioner proposed a list of arbitrators: (1) John Raleich, ARC, (2) Jay Horton, Judicate West, (3) Hon. Richard Stone, Signature, (4) Rob Bennett, Judicate West, and (5) Hon. Jacqueline Conner, ADR. Respondents do not oppose this list. The parties have already agreed on an arbitrator, Rob Bennett. If the arbitrator is not available, the parties are ordered to arbitrate before Jay Horton.

Respondent does not oppose this motion to compel arbitration.

Accordingly, Petitioner’s Motion to Compel Arbitration is granted.