Judge Upinder S. Kalra, Case 22STCP01859 2022-08-29 Tentative Ruling

Judge: Upinder S. Kalra, Case: 22STCP01859, Date: 2022-08-29 Tentative Ruling

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Case Number: 22STCP01859 Hearing Date: August 29, 2022 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: August 29, 2022

CASE NAME: Mercury Insurance Company v. Rodrigo Alabat

CASE NO.: 22STCP01859

PETITIONER’S MOTION TO COMPEL ARBITRATION & APPOINT A NEUTRAL ARBITRATOR

MOVING PARTY: Petitioner Mercury Insurance Company

RESPONDING PARTY(S): None as of August 24, 2022.

REQUESTED RELIEF:

1. An order appointing a neutral arbitrator

TENTATIVE RULING:

1. Motion to Appoint Arbitrator is GRANTED. Respondent is ordered to provide a list of potential arbitrators within 20 days

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On May 13, 2022, Petitioner Mercury Insurance Company filed a Petition to Assign Case Number for Purpose of Appointing a Neutral Arbitrator. This is based on an Uninsured Motorist action.

On July 14, 2022, Petitioner filed a Motion to Compel Arbitration, and Appointing a Neutral Arbitrator. No opposition has been filed.

LEGAL STANDARD

Code of Civil Procedure section 1281.6 provides: If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. In the absence of an agreed method, or if the agreed method fails, 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 and the parties 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. (Code of Civ. Proc., § 1281.6.)

ANALYSIS:

Petitioner moves to the court to appoint a single neutral arbitrator.

Respondent sent the Petitioner a Request for Uninsured Motorist Arbitration Letter back on November 19, 2019. However, the letter contained no suggested arbitrators.

Under the policy, damages are to be determined by agreement of the insured and the company or via arbitration if there is no agreement. (Dec. Mackie, Ex. A, Part IV, pg. 10.)

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.” (Code Civ. Proc. §1281.2, subds. (a), (b).)

It appears from both the arbitration letter sent from Respondent (Ex. B) and the Petitioner’s current moving papers, that the parties agree to arbitrate. The issue now concerns the appointment of a neutral arbitrator. The evidence indicates that there has not been an agreement concerning an arbitrator. Petitioner has contacted Respondent multiple times with multiple potential arbitrators. Respondent has emailed back concerning other issues and matters, like demanding payment, filing a bad faith lawsuit after arbitration.

Here, under Part IV of the policy, arbitration shall be conducted by a single, neutral arbitrator. “If the company and the insured are unable to agree on an arbitrator, then each shall select an arbitrator of choice. The arbitrators so selected shall agree on a single neutral arbitrator.” (Dec. Mackie, Ex. A, Part IV, ¶ 6.) Here, while the Petitioner has provided potential arbitrators, the Respondent has failed to do so. Since there is no agreement as to which arbitrator shall be used, the court can, after petitioned from a party, appoint an arbitrator.

Because Petitioner has provided potential arbitrators (Motion 7: 6-11) and Respondent has failed to provide an arbitrator of choice, the agreed method has failed. Accordingly, nominates a list of five proposed arbitrators from the list provided by the parties. (The court recognizes that only Petitioner has responded and provided the court a list from which this court is nominating.) After five days if the parties cannot agree, the shall appoint an arbitrator from the nominees, as required under CCP § 1286.1.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Appoint Arbitrator is GRANTED. The parties are to agree on an an arbitrator from the list of nominees listed below within five days notice of this order or inform the court that they are unable to reach such an agreement.

Hon. Stephen Lachs at ADR

Hon. Robert Polis at Judicate West

Hon. David Velasquez at Judicate West

Hon. Dennis Choate at ADR

Hon. Stephen Sundvold at JAMS.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: August 29, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court