Judge Michael T. Smyth, Case Number: 37-2022-00032517-CU-PT-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Michael T. Smyth, Case: 37-2022-00032517-CU-PT-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited Petitions - Other Discovery Hearing 37-2022-00032517-CU-PT-CTL INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB VS CAMACHO CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 09/13/2023

Petitioner Interinsurance Exchange of the Automobile Club's Motions to Compel Discovery are DENIED.

(ROAs 14-16.) This action is replete with defects, as the court outlines below, and the matter is set for an OSC re sanctions for June 14, 2024 at 11:00 a.m. Responsive papers must be filed at least five days prior to the hearing. (Cal. Rules of Court, rule 3.110(i).) Additionally, the court is inclined to exercise its discretion to dismiss this matter as soon as it is able, on August 13, 2024. (Code Civ. Proc., �� 583.410, 583.420(a)(1).) On August 12, 2022, Petitioner Interinsurance Exchange of the Automobile Club initiated this action by filing a petition to compel arbitration. To be clear, this proceeding is not an under insured motorist arbitration. The court clarifies this point because Petitioner's motion papers suffer under the misapprehension that this is an arbitration. (See, e.g., ROA 16, Mot. at 3:3 ['This Under Insured Motorist arbitration arises from...'].) The court's only jurisdiction over this matter is with respect to Petitioner's petition to compel Respondent to arbitration.

The petition to compel arbitration was apparently motivated by a formal demand for arbitration served on Petitioner by Attorney Joseph Dang on September 28, 2021 purportedly on behalf of Respondent Stephanie Camacho. From the records submitted to the court, that demand appears to have been the first and last time Attorney Dang communicated with Petitioner. At the time Petitioner filed its petition to compel arbitration, it was not clear that Attorney Dang was the handling attorney for purposes of this litigation.

On April 6, 2023, the court posted a tentative in response to Petitioner's petition stating: 'Petitioner Interinsurance Exchange of the Automobile Club's Petition to Compel Arbitration is DENIED.

'In the absence of any existing contract action, a section 1281.2 petition may be filed independently, in which case it commences an independent lawsuit to enforce the agreement to arbitrate.' (Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 532.) However, such a Petition must be personally served in the same manner as a complaint. It appears that the Petition was only served on an attorney who allegedly represented Respondent in connection with a pre-litigation demand letter.

That attorney then failed to respond to subsequent correspondence. Given those circumstances it is not clear that the attorney still represented Respondent at the time the Petition was filed or that the attorney was authorized to accept service of the Petition on behalf of Respondent. Prior to this court having personal jurisdiction over Respondent, she must be personally served.' Calendar No.: Event ID: TENTATIVE RULINGS

3094474 6 CASE NUMBER: CASE TITLE: INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB VS 37-2022-00032517-CU-PT-CTL (ROA 8.) On April 7, 2023, Petitioner's counsel, Attorney Dominguez, appeared at the hearing on the petition, indicated that Respondent had not been served and agreed to serve Respondent personally.

(See ROA 9.) The motion was then taken off calendar and the tentative was not confirmed. (Ibid.) No further hearing was set in the matter and there is nothing in the record to indicate that the petition to compel arbitration was ever personally served. Now Petitioner has filed three motions to compel discovery on the merits of an arbitration that was never compelled. Additionally, the discovery and motions to compel have only been served on the same attorney who may or may not actually be Respondent's attorney of record in this matter. The motions to compel were originally set for hearing on February 23, 2024 and in its tentative posted on February 22, 2024, the court sought clarification of the case status. Attorney Trela appeared and requested a 60-day continuance, apparently to cure some of the defects or determine the status of the case. (ROA 21, 31.) The court granted the continuance and set the matter for the instant hearing on May 3, 2024.

There remain at least six problems with these motions to compel discovery and with the action more generally.

First, most obviously, the original petition does not appear to have been served on the Respondent as required by law and as directed by the court. Unless the arbitration agreement provides otherwise, service is to be made in the same manner provided by law for the service of summons. (Code Civ.

Proc., � 1290.4(b)(1).) Typically, a plaintiff must be served a complaint and summons within 60 days of initiating a lawsuit unless otherwise stipulated or allowed more time by the court. (E.g., Cal. Rules of Court, rule 3.110(b), (e).) More time is allowed where authorized by local rule or there is a showing of due diligence. (Gov. Code, � 68616(a).) Here, there is nothing in the record to indicate Petitioner has served Respondent personally with the original petition despite the court's direction to do so and nearly two years having passed since the petition was filed. (ROA 9 [April 7, 2023 Minute Order] ['Plaintiff to serve Ms. Camacho personally'].) Rather, Petitioner has continued to serve Attorney Joseph Dang with papers in this matter when there is no indication that Attorney Dang is actually Respondent's handling attorney. Petitioner has had ample time to actually serve the petition on Respondent or explain to the court why it has not done so. It has done neither and continued to take up space on the court's law and motion calendar that could be better used on other matters. Therefore, this case is set for an OSC re sanctions for failure to serve. (Cal. Rules of Court, rule 3.110(f) ['If a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.'].) Second, despite not having served the original petition on Respondent, Petitioner then filed three motions to compel discovery. A party cannot expect to have motions to compel discovery heard, let alone granted, when the original petition was not served in the first instance.

Third, even assuming that the original petition had been properly served, the discovery requests were only served on Attorney Dang without any indication that he is the handling attorney for this litigation.

(See ROA 14-16, Exs. A [discovery requests with proof of service indicating service on Attorney Dang].) The court would not grant motions to compel against Respondent when it is not clear Petitioner ever actually propounded discovery on Respondent.

Fourth, the substance of the discovery requests does not go to the existence and enforceability of the arbitration agreement, but instead to the actual merits of the underlying automobile accident. (ROA 14-16, Exs. A [discovery requests for information regarding the accident].) The subject of this discovery may be proper in the arbitration itself but is outside the scope of a litigation initiated by a petition to compel arbitration.

Fifth, the notice of continuance of the motion hearing (ROA 32) was again served only on Attorney Dang and the proof of service filed on April 4, 2024 was only with respect to the notice of continuance rather than the motions themselves and does not specify who is being served (ROA 33). The motions to Calendar No.: Event ID: TENTATIVE RULINGS

3094474 6 CASE NUMBER: CASE TITLE: INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB VS 37-2022-00032517-CU-PT-CTL compel do not appear to have been properly served.

Sixth, under the relevant arbitration provision, '[a]rbitration proceedings must be formally instituted within one year from the date of the accident.' (ROA 1, Ex. E, p. 19.) This accident allegedly occurred in 2017. If the arbitration proceedings have not begun by now, Respondent's claims may be barred depending on the applicable law. The court does not decide that issue but wonders what Petitioner's purpose is in pursuing this matter when it is not clear Respondent has any interest in pursuing it herself and the attorney who purported to demand arbitration on her behalf last communicated with Petitioner on September 28, 2021. (ROA 1, Ex. A [Formal Demand Letter].) For the above reasons, the motions are denied and the OSC hearing set.

Calendar No.: Event ID: TENTATIVE RULINGS

3094474 6