Judge: Stephen I. Goorvitch, Case: 22STCV03779, Date: 2023-03-16 Tentative Ruling

Case Number: 22STCV03779    Hearing Date: March 16, 2023    Dept: 39

David Kazemi v. Farmers Insurance Company

Case No. 22STCV03779

Motion for Summary Judgment


            Plaintiff David Kazemi (“Plaintiff”) filed this action against Farmers Insurance Company (“Defendant” or “Farmers”).  The facts are largely undisputed.  Plaintiff was driving his vehicle, which was insured by Farmers, on August 8, 2013, when he was rear-ended by another vehicle.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶¶ 1, 5.)  Plaintiff was inured as a result of the collision.  (Id., ¶ 5.)  Plaintiff submitted a claim to Defendant on August 8, 2013.  (Id., ¶ 6.)  Plaintiff received only approximately $13,000 from the other driver’s insurance policy.  (Id., ¶ 8.)  Accordingly, on April 18, 2014, Plaintiff made a demand for $85,000 in underinsured motorist benefits from his own policy with Farmers.  (Id., ¶ 9.)  Defendant offered approximately $10,000, following which Plaintiff demanded arbitration.  (Id., ¶¶ 11-12.)  The demand for arbitration was made on September 4, 2014.  (Id., ¶ 12.)  The arbitration was not completed before September 4, 2019.  (Id., ¶ 46.)  This action was filed on January 31, 2022.  Plaintiff asserts causes of action for breach of contract, contractual breach of the implied covenant of good faith and fair dealing, tortious breach of the implied covenant of good faith and fair dealing, bad faith, and unfair trade practices.  Now, Defendant moves for summary judgment, which Plaintiff opposes.


“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  


Defendant argues that Plaintiff failed to complete arbitration within five years of his demand, which bars this action.  Per Insurance Code section 11580.2, subdivision (i)(2), “Any arbitration instituted pursuant to this section shall be concluded . . . [¶] [w]ithin five years from the institution of the arbitration proceeding . . . .”  (Ins. Code, § 11580.2, subd. (i)(2).)  Failure to complete arbitration within that period bars any proceedings for underinsured motorist coverage.  (Santangelo v. Allstate Ins. Co. (1998) 65 Cal.App.4th 804, 812-814.)  The claimant has the burden of prosecuting the arbitration.  (Id. at 817.)  Plaintiff demanded that Defendant arbitrate Plaintiff’s underinsured motorist claim on September 4, 2014.  (Appendix of Evidence in Support of Motion for Summary Judgment, Exhibit 6.)  This letter constitutes the institution of arbitration.  (Santangelo v. Allstate Ins. Co. (1998) 65 Cal.App.4th 804, 811-812.)  Plaintiff failed to complete the arbitration within five years of that date.  (See Appendix of Evidence in Support of Motion for Summary Judgment, Exhibit 18.) 


Plaintiff argues that Defendant is estopped from raising the statute of limitations in this matter.  Estoppel occurs “[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief . . . .”  (Evid. Code, § 623.)  If the facts are undisputed, whether equitable estoppel bars application of the statute of limitations is a question of law.  (Doe v. Marten (2020) 49 Cal.App.5th 1022, 1029.)  Plaintiff advances no evidence that Defendant did anything deceitful.  The undisputed evidence before the Court shows that Defendant did not engage in any conduct beyond defending against Plaintiff’s claim in an ordinary manner.  Defendant’s reluctance to pay Plaintiff’s claim does not operate as estoppel.  (See Vu v. Prudential Prop. & Cas. Ins. Co. (2001) 26 Cal.4th 1142, 1152.) 


To the contrary, the undisputed facts demonstrate that Plaintiff—not Defendant—was responsible for the delay in this case.  An independent medical examination was scheduled for November 10, 2016, but Plaintiff rescheduled shortly before the examination and incurred a fee.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶¶ 32-33.)  The examination was scheduled for May 17, 2017, but then rescheduled to May 18, 2017, and Plaintiff requested that it be rescheduled due to travel plans.  (Id., ¶¶ 34-35.)  The medical examination was rescheduled to September 13, 2017, and Plaintiff failed to appear.  (Id., ¶¶ 35-36.)  Defendant’s adjuster followed up with Plaintiff’s counsel on November 2 and December 13, 2017, and stated that Plaintiff needed to cooperate with the medical examination.  (Id., ¶ 37.)  No examination was scheduled.  (Ibid.)  Plaintiff’s adjuster again followed up with Plaintiff’s counsel on March 6, 2018, concerning the medical examination.  (Id., ¶ 38.)  Plaintiff’s counsel agreed that his client would appear at a medical examination.  (Id., ¶ 39.)  The independent medical examination was scheduled for June 27, 2018.  (Id., ¶ 40.)  Plaintiff appeared but no examination occurred.  (Id., ¶ 41.)  Then, on October 31, 2018, Defendant filed a petition in the Los Angeles County Superior Court to initiate discovery litigation and filed a motion to compel Plaintiff’s attendance at an independent medical examination.  (Id., ¶ 42.)  On August 6, 2019, the Court granted Defendant’s motion and ordered Plaintiff to appear at a medical examination on August 14, 2019.  (Id., ¶ 44.)  Plaintiff made no proactive efforts to schedule the medical examination.  (Id., ¶¶ 32-45.)


In sum, Defendant made a total of five demands for a medical examination of Plaintiff.  (Declaration of Marcella Wilson, Exhs. #12-17.)  It took three years to schedule the examination, which occurred only after Defendant filed a motion and obtained a court order.  It was Plaintiff’s responsibility to prosecute this case within five years, and he failed to do so, and the record reflects no improper conduct by Defendant. 


            Based upon the foregoing, the Court orders as follows:


1.         Defendant’s motion for summary judgment is granted.


            2.         The Court need not rule on the parties’ objections, per Code of Civil Procedure section 437c(q).


3.         Defendant’s counsel shall provide notice and file proof of such with the Court.