Judge Kerry Bensinger, Case 22STCV27410 2023-01-31 Tentative Ruling

On August 23, 2022 Petitioner Mercury Insurance Company (“Petitioner”) filed a Petition pursuant to California Insurance Code section 11580.2(f) to commence and enforce discovery in connection with an uninsured motorist bodily injury claim that was presented by Respondent Mohamad Motamedi-Rad (“Respondent”).

Petitioner now moves to compel Armani Chiropractic (“Armani”) to comply with a subpoena issued to take the deposition of Armani’s custodian of records, and to obtain Defendant’s medical records.

Insurance Code section 11580.2(f) specifically makes the civil discovery statute applicable to the arbitration of uninsured motorist cases.¿ (American Home Assurance Co., supra, 234 Cal.App.3d at 201, fn. 3.) Section 11580.2(f)(1) gives courts jurisdiction to resolve discovery disputes in connection with uninsured motorist arbitrations. (Miranda v. 21st Century Ins. Co., (2004) 117 Cal. App. 4th 913, 922 [“[section 11580.2(f)(1)] would have no meaning whatever had the Legislature intended, as urged by plaintiff, to preclude the superior court from exercising jurisdiction to resolve discovery disputes in connection with uninsured motorist arbitrations.”].)¿

As a preliminary matter, it appears that the Court lacks jurisdiction over this matter, because there is no evidence this matter is in arbitration and/or proof that the Petition to arbitrate was served on Respondent. Since this matter is instituted by a petition, Petitioner was required to serve it on Respondent in the manner required by Code of Civil Procedure section 1290.4. (See Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1289 [stating the statutory scheme for arbitration provided by Code of Civil Procedure sections 1280 et seq. encompasses arbitration compelled by statue, and specifically, arbitration under Insurance Code section 11580.2].) Under Section 1290.4, a copy of the petition and a written notice of the time and place of the hearing and any other papers upon which the petition is based must be served in the manner provided in the arbitration agreement for the service of such petition and notice. (Code Civ. Proc., § 1290.4(a).) If the arbitration agreement does not provide the manner for service, then Section 1290.4 requires that service be made in the manner provided by law for the service of summons in an action. (Id., § 1290.4(b).)

Petitioner filed this petition under Insurance Code section 11580.2, but there is no allegation or statement in the Petition that this discovery dispute is in connection with arbitration, and, on that basis alone, it appears the Court lacks jurisdiction to entertain this discovery dispute. In addition, the Court does not have before it an arbitration agreement that provides for the method of service. Accordingly, Petitioner was required under Section 1290.4(b) to serve the petition on Respondent in the manner provided by law for the service of summons. Here, Petitioner failed to file any proof of service of the Petition on Respondent, and that it served the Petition in the manner provided by law for the service of summons in an action. (See Code Civ. Proc §§ 415.10, 415.20.)

Furthermore, Petitioner has failed to show that the Motion was served on Respondent. Petitioner filed a proof of service that shows that the Motion was served on Joan M. Lauricella of the Law Offices of Joan M. Lauricella, but it is unclear whom Ms. Lauricella represents.

Moreover, the proof of service, which purports to show that the Motion was personally served on Armani, is deficient because the person who served the Motion does not state under penalty of perjury under the laws of California that the Motion was in fact personally served on Armani. (See Proof of Service filed on 11/17/22, p. 1.) Personal service of the Motion is required. (Cal. Rules of Court, Rule 3.1346 [A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.”])

Thus, the Court sets an OSC Re: Why this case should not be dismissed for lack of jurisdiction for ___________, 2023, at 1:30pm. The Court CONTINUES the Motion to Compel Compliance with the subpoena, and will rule on the Motion if Respondent shows the Court has jurisdiction and corrects the issues related to defective service on the motion.

The Court sets an OSC Re: dismissal due to the Court’s lack of jurisdiction for ___________, 2023, at 1:30pm. The Court CONTINUES the Motion to Compel Compliance with Subpoena to the same date and time, and will rule on the Motion if Respondent shows the Court has jurisdiction over this matter and has corrected the issues related to defective service.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court