Judge: Layne H. Melzer, Case: 2022-01264717, Date: 2023-07-20 Tentative Ruling

Petitioner Financial Indemnity Company

Motion to Set Aside/Vacate Judgment

The court denies Petitioner Financial Indemnity Company’s motion to set aside the court’s 10/20/22 and 12/8/22 Orders granting the Petition to compel arbitration of this uninsured motorist case.

As an initial matter, Claimant/Respondent David Pham has not appeared in this action. He was served by substitute service with the Petition/Motion to compel arbitration, but never appeared pro se or via counsel. Financial Indemnity served this motion only on a prior counsel associated with Pham. This is insufficient to give notice.

Moreover, the Motion substantively lacks merit.

In disposing of a petition to compel arbitration, the trial court's function is to determine whether the parties have a duty to arbitrate a dispute. The trial court performs this function by interpreting the language of the contract and Ins. Code, § 11580.2. [Denny v. St. Paul Guardian Ins. Co. (1987) 196 Cal. App. 3d 73.]

Here, the court made that determination on 10/20/22 and 12/8/22 on Financial Indemnity’s request. (ROA 36, 44.)

Financial Indemnity now moves under CCP §663 to vacate that order. That statute does not appear applicable procedurally or substantively. There are no new facts presented that could alter the determination as to the duty to arbitrate. Petitioner tells the court that Claimant/Respondent David Pham has been unresponsive to this action and the court’s orders.

Financial Indemnity has not cited any law to show that the court, as opposed to an arbitrator, can dismiss an arbitration for failure to participate.

Moving party to give notice.