Judge Timothy B. Taylor, Case 37-2023-00012355-CU-PT-CTL 2023-08-11 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2023-00012355-CU-PT-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Petitions - Other Motion Hearing (Civil) 37-2023-00012355-CU-PT-CTL RAMIREZ VS ALLSTATE NORTHBROOK INDEMNITY COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/09/2023

Tentative Ruling on Motion to Compel Arbitration, and to Appoint an Arbitrator Ramirez v. Allstate, Case No. 2023-12355 August 11, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This case arises out of a traffic accident on October 10, 2020 on northbound Interstate 5 near Encinitas Boulevard in San Diego County. Petitioners allege the person who caused the accident was uninsured, and that they subsequently made a policy limits demand on Allstate of $300,000 on their UM policy.

They allege Allstate has changed counsel 3 times, failed to accept settlement demands, and unfairly delayed resolution of the claim.

Presently before the court is petitioners' motion for an order compelling arbitration of the UM claim, and the appointment of an arbitrator from a list of 5 proposed arbitrators: - Randi Saul-Olson, Esq.

- Darrel Forgey, Esq.

- Charles Roseman, Esq.

- Bruce Levinson, Esq.

- Howard Blumenthal, Esq.

ROA 9-10. Allstate filed opposition. ROA 12. Petitioners filed reply. ROA 13. The court has reviewed the papers, and further submissions are permitted in connection with this motion.

2. Applicable Standards.

A party to an arbitration agreement may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. Code Civ. Proc. § 1281.2. The moving party bears the burden of persuasion to prove the existence of the arbitration agreement by a preponderance of the evidence.

Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413. However, the burden of production may shift in a three-step process. Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.

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2971092 28 CASE NUMBER: CASE TITLE: RAMIREZ VS ALLSTATE NORTHBROOK INDEMNITY 37-2023-00012355-CU-PT-CTL First, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy. Id. Pursuant to CRC 3.1330, the moving party can meet its initial burden by reciting verbatim, or providing a copy of, the alleged agreement: 'A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.' If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion. Gamboa, 72 Cal.App.5th at 165. If, however, the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement.

Id. To bear this burden, the arbitration opponent must offer admissible evidence creating a factual dispute as to the authenticity of their signatures. Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755.

If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. Gamboa, 72 Cal.App.5th at 165. The moving party may carry its burden 'in any manner,' including by presenting evidence of the contents of the contract in question and the circumstances surrounding the contract's execution. Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1068. Once the moving party proves the existence of an agreement by a preponderance of the evidence, the burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). Rosenthal, 14 Cal.4th at 413.

3. Discussion and Ruling.

The motion to compel arbitration is denied.

Petitioners failed to meet their initial burden of producing prima facie evidence of a written agreement to arbitrate. See Gamboa, supra, 72 Cal.App.5th at 165. The insurance policy is not attached to the petition or the motion. Nor did petitioners make any attempt to quote the policy's relevant arbitration provisions. Petitioners' submission of the policy in connection with the reply papers (Ex. 14) is insufficient under CRC 3.1330 and the Gamboa burden-shifting framework.

Moreover, even if the insurance policy was properly presented to the court, there is no evidence suggesting that petitioners are parties to it or otherwise agreed to the arbitration provisions. 'It is essential to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them.' Civ. Code § 1558. Absent such evidence, petitioners have failed to establish the existence of an agreement to arbitrate between the parties. See Rosenthal, supra, 14 Cal.4th at 413.

Accordingly, there is no basis to compel this case to arbitration.

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