TENTATIVE

Petitioner Gregorio Salazar’s motion to compel arbitration and appoint a neutral arbitrator is CONTINUED to November 16, 2022. Within 10 days of this order, both Petitioner and Respondent are to file their lists of three arbitrators who handle underinsured motorist arbitration.

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.) 

Discussion

Petitioner moves for the Court to compel arbitration and nominate five persons for arbitrator so the parties may choose one. Petitioner argues that Respondent has refused to object or respond to select a neutral arbitrator.

The arbitration agreement between the parties provides:

"5. Arbitration (a) If we and an "insure disagree whether the "insured" is legally entitled to recover damages from the owner or driver of an "uninsured motor vehicle" or do not agree as to the amount of damages that are recoverable by that "insured", the disagreement will be settled by arbitration. Such arbitration may be initiated by a written demand for arbitration made by either party. The arbitration shall be conducted by a single neutral arbitrator. However, disputes concerning coverage under this endorsement may not be arbitrated. Each party will bear the expenses of the arbitrator equally…”

(Yazdanpanah Decl., Exh. E.) The agreement does not contain a procedure for selecting an arbitrator.

Respondent Steadfast argues that it has not refused to arbitrate. Steadfast requested further documentation and engaged in available means of discovery in order to support claimant’s demand. On October 20, 2021, Steadfast asked for necessary information to evaluate the demand. (Decl., ¶ 3; Exh. 1.) Counsel for Claimant responded, but did not provide all of the requested information. (Id., ¶ 4.) Steadfast served written discovery on September 23, 2022, and Claimant’s responses are due on October 24, 2022. (Id., ¶ 5.) Steadfast argues it has been consistently willing and proactive in engaging with Claimant’s counsel regarding this case. Counsel for Steadfast notified Claimant’s counsel that Steadfast agreed to the Rank and Strike List with Judicate West to select an arbitrator. (Haas Decl., ¶ 7.)

Indeed, “a party to an agreement to arbitrate may not bring an action to compel specific performance of the arbitration provision until he or she can allege not only the existence of the agreement, but also that the opposing party refuses to arbitrate the controversy. Therefore, it appears that a cause of action to compel arbitration does not accrue until one party has refused to arbitrate the controversy.” (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1041-42.) 

While it is true that the parties are in agreement on the need to arbitrate the claim, the Court disagrees with Respondent that this constitutes grounds to deny the petition. Both parties are clearly in disagreement on which arbitrator to pick. It is common practice for a claimant to submit a petition to compel arbitration in exactly this kind of situation. 

As such, Petitioner has listed three arbitrators: (1) Hon. Bennie Osorio, (2) Hon. Richard Stone; and (3) Amy Solomon, Esq. However, the Court notes that Petitioner then states at the end of its motion that Solomon has excused herself from cases with Constitution State Services, and that the Hon. Enrique Romero and Hon. Gabriel Gutierrez have passed away. However, it the motion, Petitioner did not propose Hon. Enrique Romero and Hon. Gabriel Gutierrez.

Moreover, Respondent has only stated it agrees to choose an arbitrator through the Rank and Strike List with Judicate West and has not proposed any arbitrators.

Thus, the Court will continue the matter to November 16, 2022 for Respondent to propose its list of arbitrators and for Petitioner to clarify and update its list of proposed arbitrators.

Conclusion

Accordingly, Petitioner’s motion to compel arbitration and appoint an arbitrator is CONTINUED to November 16, 2022. Within 10 days of this order, both Petitioner and Respondent are to file their lists of three arbitrators who handle underinsured motorist arbitration.

Moving party is ordered to give notice.