Judge Layne H. Melzer, Case 2022-01264717 2022-09-01 Tentative Ruling

Judge: Layne H. Melzer, Case: 2022-01264717, Date: 2022-09-01 Tentative Ruling

Pltf. Financial Indemnity Company
Motion to Compel Arbitration

Before the court is Petitioner Financial Indemnity Company’s Petition to compel arbitration of an uninsured motorist claim against Claimant/Insured/Respondent David Pham.

The court heard this Petition on 7/14/22 and identified three issues with the Petition: (1) service was improper, (2) lack of admissible evidence showing an agreement to arbitrate and (3) failure to comply with Insurance Code section 11580.2, subdivision (f). (ROA 15). The court’s prior Minute Order held that “Petitioner shall address the above deficiencies no later than 7/29/2022.” That date has passed and nothing new is filed to address the substantive issues.

Further, if the court didn’t hold Petitioner to the timeline in the Order, notice of the Petition is 10 days prior to the hearing date. (CCP §1290.2) Thus any further briefing would minimally have to comply with due procs notice requirements.

Finally, while substitute service is a proper method of service, issues still remain. Petitioner filed a POS on 7/26/22 showing that the Petition and related documents was sub-served on Michael Bui, an occupant at 8072 23^rd Street #A, Westminster, CA 92683 on 7/23/22, on behalf of Respondent David Pham. (ROA 20). Petitioner then mailed the documents on 7/23/22. (ROA 22).

If personal service cannot be effected with reasonable diligence on an individual, Code of Civil Procedure § 415.20(b) provides that the summons and complaint may be left at the defendant's dwelling house, usual place of abode, or usual place of business in the presence of a competent member of the household or a person apparently in charge of the office or place of business, at least 18 years old, who is informed of the contents. (CCP § 415.20(b).)

A second copy of the summons and complaint must then be mailed to the defendant at that location, and service is deemed complete on the tenth day after mailing. (Id.)

The requirement that the plaintiff attempt personal service with reasonable diligence before use of substituted service is mandatory. (Id.)

Here, there is no evidence that personal service was attempted first with reasonable diligence.

Thus, based on the foregoing, the court is inclined to deny the Petition.