Judge Latrice A. G. Byrdsong, Case Number: 23STLC05745, Date: 2023-12-06 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 23STLC05745, Date: 2023-12-06 Tentative Ruling

Case Number: 23STLC05745 Hearing Date: December 6, 2023 Dept: 25

Hearing Date: Wednesday, December 6, 2023

Case Name: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. KEVIN FIGLEWICZ, et al.

Case No.: 23STLC05745

Motion: Motion for Relief from Waiver of Objections

Moving Party: Plaintiff/Insurer State Farm Mutual Automobile Insurance Company

Responding Party: Claimants Kevin Figlewicz and Kim Becker

Notice: OK

Tentative Ruling: Petitioner’s Motion for Relief from Waiver of Objections is DENIED as moot. There was no waiver of objections.

BACKGROUND

On September 7, 2023, Petitioner State Farm Mutual Automobile Insurance Company filed this Petition for Superior Court Case Number for the Purpose of Filing Motion for Relief from Waiver of Objections. Petitioner asks that the Court relieve it from waiver of objections to discovery propounded by Respondent in an Underinsured Motorist’s Arbitration pending between them.

MOVING PARTY’S POSITION

Petitioner State Farm petitions for relief from waiver of objections to Respondents’ written discovery propounded in the pending Uninsured Motorist’s Arbitration between the parties. Petitioner argues the discovery requests were improperly served by electronic mail, Petitioner did not have counsel at the time and any failure to respond and waiver of objections was due to excusable neglect, mistake and inadvertence.

Petitioner argues it did not realize there were outstanding discovery requests that were concurrently served with Respondents’ demand for arbitration. Petitioner did not realize there were outstanding discovery requests until it was assigned counsel and counsel discovered them in late August 2023. Petitioner served full and complete verified responses on September 8, 2023.

OPPOSITION

Respondent argues Petitioner failed to serve responses that substantially complied with Code Civ. Proc. §§ 2030.210-2030.240, 2031.210-2031.240, 2031.280. Respondent argues Petitioner failed to answer the substance of the discovery in many instances and instead stated it did not have the information to respond. Respondent argues Petitioner’s claim of excusable neglect and mistake are unsupported by the facts. Respondent argues it contacted the claims agent multiple times regarding the discovery requests before the deadline to respond expired. Respondent argues the discovery was also properly served by electronic service. Respondent argues Petitioner itself has served discovery on Respondents electronically.

REPLY

Petitioner argues the rules requiring that parties accept electronic service where documents must be filed with the court electronically does not apply to self-represented parties. Petitioner argues that it was not represented at the time that the discovery requests were served. As such, Petitioner argues personal service was therefore required.

Petitioner argues its responses also substantially complied with Code Civ. Proc. §§ 2030.210-2030.240, 2031.210-2031.240, 2031.280. Petitioner argues its statements of inability to respond for lack of knowledge complied with statutory requirements. Petitioner argues it establishes excusable neglect and reasonable mistake. Petitioner agues its claims agent overlooked the discovery, because he was focused on the demand for UM arbitration. Petitioner argues the discovery served was served before a demand for arbitration was ever accepted. Petitioner argues ordinarily a demand for arbitration is served, the respondent accepts the demand and engages in discovery after counsel is assigned to the matter.

ANALYSIS

Pursuant to Insurance Code §11580.2(f), an uninsured motorist arbitration “shall be deemed to be a proceeding and the hearing before the arbitrator shall be deemed to be the trial of an issue therein for purposes of issuance of a subpoena by an attorney of a party to the arbitration under Section 1985 of the Code of Civil Procedure. 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….” Discovery disputes in an uninsured motorist arbitration petition are resolved by the trial court, not the arbitrator. (Ins. Code, § 11580.2, subd. (f); State Farm Mutual Automobile Insurance Company v. Robinson (2022) 76 Cal.App.5th 276, 282.)

On July 20, 2023, Respondent served Petitioner with (1) a Demand for Uninsured Motorist Arbitration and (2) form interrogatories, special interrogatories, requests for admission and requests for production of documents. (Respondent’s Opposition, Hakakian Dec., ¶2.) At the time there was no arbitration pending. Petitioner argues its failure to respond to the discovery was caused in part by how “unusual” it is for a claimant to serve discovery with the demand for arbitration, as opposed to serving the discovery after the insurer accepts the demand and arbitration is ongoing.

Petitioner’s oversight in responding to the discovery on grounds of this “unusual” sequence was entirely reasonable. In fact, Respondent’s right to serve discovery with the demand for arbitration is questionable. Pursuant to Insurance Code §11580.2(f), “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 insurer at any time after the accident, both before and after the commencement of arbitration…” Among the rights and obligations included in CCP §2016.010, et seq. is a hold on all discovery until 10 days or 20 days after the responding party/defendant has made an appearance, depending on the discovery served. (CCP §§ 2025.210(b) & 2025.270(b), (d) (depositions), § 2030.020(b), (c), (d) (interrogatories), § 2031.020(b), (c), (d) (demands for documents, etc.), § 2033.020(b), (c), (d) (requests for admission).) ‘

In light of the 10-day or 20-day hold ordinarily applied to discovery in civil actions and arguably incorporated into UM arbitrations pursuant to Insurance Code §11580.2(f), Respondents’ discovery was improper and prematurely served. Petitioner was not required to respond to it. As such, Petitioner’s failure to respond did not result in waiver of its right to assert objections.

In addition to the discovery being prematurely served, Respondents also served Petitioner with discovery requests by email. Petitioner was not represented by counsel at the time, as no arbitration had yet been initiated, nor did Petitioner ever consent to electronic service prior to Respondent’s service of the discovery requests. Self-represented parties are exempt from mandatory electronic service and filing requirements adopted by the court. Each self-represented party must be served with documents by nonelectronic means unless the party affirmatively consents to electronic service. (CCP § 1010.6(c), (f)(2), (g)(4); CRC 2.253(b)(2), (3).) Respondents service of the discovery on Petitioner by email on July 20, 2023 was therefore improper and Petitioner was not obligated to respond.

For the foregoing reasons, Petitioner did not waive any objections by failing to respond to Respondents’ discovery served on July 20, 2023. The discovery was improperly served because it was served on Petitioner before Petitioner appeared in the arbitration by email.

CONCLUSION

Petitioner’s Motion for Relief from Waiver of Objections is DENIED as moot. Petitioner never waived any objections by failing to respond to the July 20, 2023 discovery. The July 20, 2023 discovery was improper and Petitioner was not obligated to respond.

Moving Party is ordered to give notice.