Judge: Mark A. Young, Case: 23SMCV03132, Date: 2023-10-02 Tentative Ruling


Case Number: 23SMCV03132    Hearing Date: October 2, 2023    Dept: M

CASE NAME:           Cal. Fair Plan Assoc., et al., v. Silverstein, et al.

CASE NO.:                23SMCV03132

MOTION:                  Petition to Compel Arbitration (Insurance Appraisal Umpire)

HEARING DATE:   10/3/2023

 

Legal Standard

 

Insurance appraisal proceedings pursuant to section 2071 of the California Insurance Code are “deemed an arbitration as a matter of law.” A party may bring a petition to order appraisal, a form of arbitration, under Code of Civil Procedure, section 1281.2. “Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration if the court determines that an agreement to arbitrate the controversy exists.” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59, quotations omitted.) Accordingly, “when presented with a petition to compel arbitration, the court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute.”  (Ibid.) A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Id. at 71.) As with any other specific performance claim, “a party seeking to enforce an arbitration agreement must show the agreement’s terms are sufficiently definite to enable the court to know what it is to enforce.” (Ibid. [internal citations omitted].) “Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed.” (Ibid.) An arbitration agreement “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) The language of the contract governs its interpretation if it is clear and explicit. (Civ. Code, § 1368.) If uncertainty exists, “the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. Code, § 1654.)

 

            The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) It would then be plaintiff’s burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.) “In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Ibid.)

 

Analysis

 

There is no dispute that the instant Appraisal is subject to Arbitration. The Court has jurisdiction over all parties, as Respondents have filed an answer and cross-complaint. In fact, the parties agree that the Court may appoint an umpire in this instance pursuant to Code of Civil Procedure section 1281.6 Therefore, the Court will select an umpire pursuant to Section 1281.6.

 

Code of Civil Procedure § 1281.6 provides that:

 

If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.

 

When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.

 

The pleadings demonstrate that the parties are unable to agree on an umpire. Petitioners nominate the following neutrals: (1) Lee Jay Berman; (2) Robert Mann; (3) Sean Scott; (4) Jim Wilson and (5) Frank Zeigon. (See Smith Decl.; Yoffie Decl.) Respondents nominate the following five neutrals: (i) Hon. Jacqueline A. Connor (Ret.) (ii) Hon. Michael D. Marcus (Ret.) (iii) Hon. Gerald Rosenberg (Ret.) (iv) Hon. Michelle R. Rosenblatt (Ret.); and (v) Hon. W. Scott Snowden (Ret.). (See Silverstein Decl.) The Court considers these lists as a joint list provided by the parties. Accordingly, the Court selects the following nominees:

 

1.     Lee Jay Berman;

2.     Robert Mann;

3.     Hon. Jacqueline A. Connor (Ret.);

4.     James Wilson; and 

5.     Hon. Gerald Rosenberg (Ret.). 

 

The parties are ordered to select an umpire from the list of nominees within five days’ notice of the Court Order, as required by Code of Civil Procedure § 1281.6. If the parties fail to select an umpire within 5 days, the Court shall appoint an umpire from the list of nominees. 

 

The Court sets a non-appearance Status Report re Selection of Umpire for October 13, 2023.  If the parties have agreed to an umpire within 5 days, they must file a joint statement to that effect by October 11, 2023.