Judge Teresa A. Beaudet, Case Number: 23STCP04054, Date: 2024-06-26 Tentative Ruling

TICH VAN NGUYEN, Petitioner, vs. PROGRESSIVE WEST INSURANCE COMPANY, Respondent.	Case No.:	23STCP04054
	Hearing Date:	June 26, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PETITION FOR AN ORDER NOMINATING ARBITRATORS UNDER CODE OF CIVIL PROCDURE § 1281.6

On November 2, 2023, Petitioner Tich Van Nguyen (“Petitioner”) filed a “Petition…for Assignment of Case Number in Uninsured Motorist Action” against Respondent Progressive West Insurance Company (“Respondent”) in this action.

In the Petition, Petitioner alleges, inter alia, that “Petitioner seeks to have a case number assigned to the above entitled uninsured motorist arbitration pursuant to Insurance Code Section 11580.2(f)(1). A case number is needed by the petitioner to allow the filing of a Motion to Appoint a Neutral Arbitrator in this uninsured motorist action for the the [sic] hearing of the binding arbitration of the matter and motions to compel verified responses to discovery.” (Petition, ¶ 1.)

Petitioner now seeks “an [o]rder nominating arbitrators.” Respondent filed a response to the petition.

“If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.

When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.”

In his supporting declaration, Petitioner’s counsel states that “on August 31, 2023, I sent Respondent’s counsel a letter which I [sic] proposed a list of four proposed arbitrators. The letter requested Ms. Korff to select an arbitrator or propose her own list of arbitrators no later than September 15, 2023.” (Dunham Decl., ¶ 3.) Petitioner’s counsel’s August 31, 2023 letter provides, inter alia, that “[o]n August 7, 2023, I wrote you and advised that this office would be agreeable to utilize [sic] the following as arbitrators: 1. Mitch Green of Green Mediation 2. James P. Spaltro (IVAMS) 3. William Molfetta, Esq. 4. Barry Plotkin, Esq…Should the same not be acceptable, I would request that you provide me with the names of an arbitrator you would agree to act in this matter…” (Dunham Decl., ¶ 3, Ex. A.) Petitioner’s counsel states that he “did not receive[] any response to [his] effort to have a neutral arbitrator selected.” (Dunham Decl., ¶ 4.) Petitioner asserts that accordingly, the Court should “nominate five persons for the parties to select from.” (Petition at p. 5:5-7.)

In support of its response, Respondent submits the Declaration of Eve H. Korff, counsel for Respondent. Ms. Korff states, inter alia, that “[b]y email dated May 13, 2024 I advised opposing counsel of respondent’s agreement to attorney William Molfetta serving as the arbitrator in this matter…By email dated May 13, 2024 opposing counsel’s office advised me that William Molfetta was no longer hearing uninsured motorist arbitrations, and inquired whether respondent was agreeable to any other arbitrator previously proposed by the petitioner.” (Korff Decl., ¶¶ 8-9.)

Ms. Korff also states that “[o]n April 25, 2024 by email correspondence to Kevin Wu of Donald T. Dunham’s office, attorney’s for petitioner, I proposed retired judges Chris Conway, Linda Marks and Patricia Schnegg for petitioner’s consideration as possible arbitrators.” (Korff Decl., ¶ 7.) In addition, Ms. Korff states that “[b]y email dated May 13, 2024 to opposing counsel’s office, I requested that additional names be provided for the respondent’s consideration as possible arbitrators.” (Korff Decl., ¶ 10.) Ms. Korff indicates that “[b]y email dated May 15, 2024 opposing counsel’s office proposed the Retired Judge Cesar Sarmiento as a possible arbitrator.” (Korff Decl., ¶ 12.) Ms. Korff further indicates that “[b]y email dated May 15, 2024, I proposed retired judges Christopher Warner, Christopher Conway and Suzanne G. Brueguera as possible arbitrators for petitioner’s consideration.” (Korff Decl., ¶ 13.)

Ms. Korff also states that “[b]y email dated May 30, 2024, I…also suggested the following additional arbitrators…retired judges Robert Polis and Steven Lachs, and attorney Jay Horton.” (Korff Decl., ¶ 16.) Ms. Korff states that “[b]y email dated May 31, 2024, opposing counsel advised the arbitrators proposed by me on the previous day were not acceptable and that he would proceed with his motion to compel the appointment of an arbitrator and his office wants to litigate all issues at arbitration.” (Korff Decl., ¶ 17.)

The parties did not submit a joint list of proposed arbitrators. However, based on the declarations of the parties’ counsel, it appears that Petitioner proposes the following four arbitrators:

In addition, based on Mr. Korff’s declaration, it appears Respondent proposes the following eight arbitrators:

As set forth above, Code of Civil Procedure section 1281.6 provides, inter alia, that “[w]hen a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration.” Accordingly, the Court nominates the following five arbitrators: Hon. Suzanne G. Bruguera, Ret. Chris Conway, Ret., Ret., Hon. Steven Lachs, Ret., Hon. Cesar Sarmiento, Ret. , Hon. Patricia Schnegg, Ret.,

Pursuant to Code of Civil Procedure section 1281.6, within five days of receipt of notice of the above-referenced nominees from the Court, Petitioner and Respondent “may…jointly select the arbitrator whether or not the arbitrator is among the nominees.” If the parties fail to select an arbitrator within the five-day period, the Court shall appoint the arbitrator from the nominees. (Code Civ. Proc., § 1281.6.)

In light of the foregoing, the Court continues the hearing on the instant petition to ___________, 2024 at 10:00 a.m. in Dept. 50. The parties are ordered to file a joint status report regarding the selection of the arbitrator by _______________, with a courtesy copy delivered directly to Dept. 50.

[1]As set forth above, Respondent indicates that William Molfetta, Esq. “was no longer hearing uninsured motorist arbitrations.” (Korff Decl., ¶ 9.)

Superior Court of California

County of Los Angeles

Department 50