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.