Judge: Layne H. Melzer, Case: 2023-01332820, Date: 2023-08-17 Tentative Ruling

Petitioner Cynthia Fuston

Motion to Compel Arbitration               

Tentative Ruling

Petitioner Cynthia Fuston (“Petitioner”) seeks an order compelling Respondent State Farm Mutual Automobile Insurance Company (“Respondent”) arbitrate this uninsured motorist arbitration.

As an initial matter, the Court notes it is unclear whether the petition was properly served on Respondent pursuant to Code of Civil Procedure section 1290.4.  Petitioner did not provide any evidence as to whether an arbitration agreement provided for the service of this petition.  (Code Civ. Proc., § 12090.4.)  Petitioner personally served this petition on Respondent on 6/30/2023, without objecting to service.  (ROA No. 10.)  Respondent served and filed a response on 8/4/2023.  (ROA No. 12.)  Respondent’s response is untimely.  (Code Civ. Proc., § 1290.6.)  Petitioner served and filed a reply without objecting to Respondent’s response.  The Court exercises its discretion to consider Respondent’s response.  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847.)

Petitioner did not demonstrate through admissible evidence an enforceable agreement to arbitrate between Petitioner and Respondent. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)  In addition, Petitioner did not comply with Insurance Code section 11580.2, subdivision (f), which provides as follows: “[a]ny demand or petition for arbitration shall contain a declaration, under penalty of perjury, stating whether (i) the insured has a workers’ compensation claim; (ii) the claim has proceeded to findings and award or settlement on all issues reasonably contemplated to be determined in that claim; and (iii) if not, what reasons amounting to good cause are grounds for the arbitration to proceed immediately.”

The Court notes Respondent does not dispute the parties entered into an enforceable agreement to arbitrate.  Although Respondent contends the motion is moot because the parties have agreed upon an arbitrator, no party has shown any additional steps have been taken to commence arbitration.  Instead, Respondent demands discovery be completed before arbitration commences.  However,  Respondent has not shown any discovery motions have been filed and presented no legal authority which prevents the initiation of arbitration proceedings while discovery is pending.  Pursuant to Insurance Code section 11580.2, subdivision (f), discovery may occur “both before and after the commencement of arbitration…” (Ins. Code, §11580.2, subd. (f).) 

Accordingly, the petition is continued to October 19, 2023 at 2:00 p.m. Petitioner shall address the above deficiencies no later than August 31, 2023.

Petitioner shall give notice.