Judge: Serena R. Murillo, Case: 19STCV36723, Date: 2022-12-06 Tentative Ruling
Case Number: 19STCV36723 Hearing Date: December 6, 2022 Dept: 29
TENTATIVE
Claimant’s petition
to compel arbitration and appoint an arbitrator is GRANTED. The parties shall
have five days to select an arbitrator, otherwise they may petition to Court to
do so for them.
Judicial
Notice
Claimant’s
requests for judicial notice of (1) this
Court’s ruling on the motion to compel arbitration; (2) Claimant’s demand for
arbitration; and (3) this Court’s ruling granting Claimant’s protective order
against Respondent and imposing monetary sanctions against Respondent are
GRANTED pursuant to Evidence Code section 452(d).
Legal
Standard
A written
agreement to submit to arbitration, a controversy thereafter arising is valid,
enforceable and irrevocable, save upon such grounds as exist for the revocation
of any contract. (Code Civ. Proc., § 1281.) California has a strong public
policy in favor of arbitration. (Moncharsh v. Heily
& Blase´ (1992) 3 Cal.4th 1, 9.)
On petition of a
party to an arbitration agreement alleging the existence of a written agreement
to arbitrate a controversy and where a party thereto refuses to arbitrate such
controversy, the court shall order the petitioner and the respondent to arbitrate
if it determines an agreement to arbitrate the controversy exists. (Code Civ.
Proc., § 1281.2; Gorlach v. Sports
Club Co. (2012) 209 Cal.App.4th 1497, 1505 [noting that “when
presented with a petition to compel arbitration, the trial court's first task is
to determine whether the parties have in fact agreed to arbitrate the
dispute”].)
In deciding a
petition to compel arbitration, trial courts must first decide whether an
enforceable arbitration agreement exists between the parties, and then
determine the second gateway issue of whether the claims are covered within the
scope of the agreement. (Omar v. Ralphs Grocer Co. (2004) 118
Cal.App.4th 955, 961.) The initial burden is on the party petitioning to compel
arbitration to prove the existence of the agreement by a preponderance of that
evidence. (Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.)
Once petitioners
allege that an arbitration agreement exists, the burden shifts to respondents
to prove the falsity of the purported agreement, and no evidence or
authentication is required to find the arbitration agreement exists. (Condee
v. Longwood Mgt. Corp. (2001) 88 Cal.App.4th 215, 219.)
Under Code of
Civil Procedure section 1281.6, where an arbitration agreement does not specify
a method for appointment of an arbitrator, the parties may bring a petition to
have the Court appoint the arbitrator. To do so, the Court must nominate five
persons from lists of candidates supplied jointly by the parties, from
governmental agencies concerned with arbitration, or from private disinterested
arbitration associations. The parties then have five days within which to
jointly select the arbitrator (which may be from a name not on the list), after
which the Court must appoint an arbitrator from the five nominees. (Code Civ.
Proc., § 1281.6.)
Under Code of
Civil Procedure section 1283.8, where an arbitration agreement does not set a
time period for completion, the Court, on petition of a party, will determine
the arbitration completion deadline. The parties to the arbitration may extend
the time either before or after the expiration. “[A]ny date chosen [by
the Court] must be reasonable in light of the circumstances presented by the
particular arbitration.” (Bosworth v. Whitmore (2006) 135 Cal.App.4th
536, 550.)
Under Insurance
Code section 11580.2, subdivision (i)(2), any arbitration instituted pursuant
to an uninsured motorist policy shall be concluded within five years from the
institution of the arbitration proceeding. (Ins. Code, § 11580.2 subd. (i)(2)(A).)
Further, the provisions of Insurance Code section 11580.2 are deemed to be a
part of every uninsured motorist policy. (See Quitano v. Mercury
Casualty Co. (1995) 11 Cal.4th 1049, 1053; Harford Fire Insurance Co.
v. Macri (1992) 4 Cal.4th 318, 324; Travelers Indemnity Co. v. Kowalski
(1965) 233 Cal.App.2d 607, 609.)
Discussion
Claimant argues
that Respondent
State Farm has explicitly refused to comply with this Court's April 27, 2022
order to meet and confer regarding the selection of an arbitrator.
Respondent states that all
parties represented to the Court on April 27, 2022 that this matter would be
ready for arbitration following Claimant’s neuropsychological examination.
Thus, Respondent argues the case will be ripe for arbitration once Respondent
obtains the neuropsychological examination. The parties have been unable to
agree on the scope of the examination. Respondent has requested that Claimant’s
counsel confirm that she will produce her client for her regularly noticed
neuropsychological examination, scheduled for December 13, 2022.
The parties agree
that the matter needs to be arbitrated, but Respondent argues that the case is
not ripe for arbitration. However, the Court ordered that arbitration be
complete within six months on April 27, 2022. Thus, six months have passed and
arbitration is not yet complete. Moreover, Claimant states that the arbitration
proceeding is not expected to start the day that the Court selects the
arbitrator, and the goal is to have the arbitrator selected so that the parties
can get on the arbitrator's calendar, schedule the arbitration proceedings, and
the arbitrator can make the appropriate interim orders so that the resolution
of this claim is not further delayed.
Claimant has
listed five arbitrators: (1) Honorable Richard A. Stone; (2) Honorable Patricia
Schnegg; (3) Honorable Joyce Fahey; (4) Honorable Robert J. Polis; and (5)
Honorable Amy D. Hogue.
Respondent
submits its own list of recommended arbitrators: (1) Mitch Green; (2)
Christopher Warner; (3) Randolph Even; (4) Suzanne Brugera; (5) Christopher
Day; (6) Jeff Castner; (7) Gregory Munoz; (8) Christopher Conway; (9) Jan
Adler; (10) Russ Wunderli; (11) William Diffenderfer.
In reply, Claimant argues
that Respondent's
proposed arbitrators should be disregarded because of its refusal to comply
with this Court's order dated April 27, 2022 to meet and confer regarding the
selection of an arbitrator. Respondent only sent out a belated email with a
list of proposed arbitrators on November 22, 2022, the same day its opposition
was served.
However, Claimant cites to
no authority for that proposition and the Court will thus select five
arbitrators supplied by each party.
Conclusion
Accordingly,
Claimant’s petition is GRANTED. The Parties shall have five days to select an
arbitrator from the following: (1) Jan Adler; (2) Christopher Warner;
(3) Hon. Robert J. Polis; (4) Hon. Richard Stone; or (5) Hon. Amy D. Hogue.
Moving party is
ordered to give notice.