United Financial Casualty Company v. Ariana Marie Rubio

Case Number

24CV03655

Case Type

Hearing Date / Time

Mon, 04/21/2025 - 10:00

Nature of Proceedings

Motion of Petitioner to Dismiss Arbitration

Tentative Ruling

United Financial Casualty Company v. Ariana Marie Rubio

Case No. 24CV03655

           

Hearing Date: April 21, 2025                                                  

HEARING:              Motion of Petitioner to Dismiss Arbitration

ATTORNEYS:        For Petitioner United Financial Casualty Company: Eve H. Korff, MacDonald & Cody LLP

                                    For Respondent Ariana Marie Rubio: No appearance  

                                   

TENTATIVE RULING:

The motion of petitioner United Financial Casualty Company to dismiss arbitration is denied.

Background:

As set forth in the declaration of counsel for petitioner United Financial Casualty Company (United), attorney Eve H. Korff:

United issued a policy of automobile liability insurance to respondent Ariana Marie Rubio that was in effect on August 19, 2016, when Rubio was involved in an automobile accident. (Korff decl., ¶¶ 2-3.) The other vehicle involved in the accident was uninsured. (Korff decl., ¶ 3 & exhibit A.)

On August 17, 2018, counsel for Rubio, attorney, Steven Ross, sent a certified letter demanding arbitration of Rubio’s uninsured motorist claims to United. (Korff decl., ¶ 4 & exhibit B.) The letter from Ross advised that Rubio was interested in settling the claim and requested holding off setting arbitration dates and assigning counsel for 90 days. (Ibid.)

From December 2018 to February 2019, claims representative Matthew Thompson communicated with attorney Ross regarding the claims. (Korff decl., ¶¶ 5-8 & exhibits C-F.) Starting in February 2019, other claims representatives took over from Thompson and requested information from Ross. (Korff decl., ¶¶ 9-21 & exhibits G-U.) This matter was referred to counsel in December 2023. (Korff decl., ¶ 22.)

On July 1, 2024, United filed its petition in this matter “to commence and enforce discovery” pursuant to Insurance Code section 11580.2, subdivision (f). No proof of service has been filed as to this petition. No discovery motions have been filed pursuant to this petition.

On January 27, 2025, United filed this motion “for dismissal of uninsured motorist arbitration proceeding for failure to prosecute.” The motion is dated November 1, 2024. The proof of service attached to the motion shows service by mail on Ross on November 1, 2024. The declaration of Korff is dated July 3, 2024.

Arbitration has not been accomplished through at least July 3, 2024. (Korff decl., ¶¶ 24-28.)

Analysis:

There are a number of procedural issues that preclude the court from granting the motion as presented.

This proceeding arises under Insurance Code section 11580.2, which provides in part:

“The policy or an endorsement added thereto shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration. … The arbitration shall be deemed to be a proceeding and the hearing before the arbitrator shall be deemed to be the trial of an issue therein for purposes of issuance of a subpoena by an attorney of a party to the arbitration under Section 1985 of the Code of Civil Procedure. Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be applicable to these determinations, and all rights, remedies, obligations, liabilities and procedures set forth in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be available to both the insured and the insurer at any time after the accident, both before and after the commencement of arbitration, if any, with the following limitations:

            “(1)      Whenever in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure, reference is made to the court in which the action is pending, or provision is made for application to the court or obtaining leave of court or approval by the court, the court that shall have jurisdiction for the purposes of this section shall be the superior court of the State of California, in and for any county that is a proper county for the filing of a suit for bodily injury arising out of the accident, against the uninsured motorist, or any county specified in the policy or an endorsement added thereto as a proper county for arbitration or action thereon.

            “(2)      Any proper court to which application is first made by either the insured or the insurer under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure for any discovery or other relief or remedy, shall thereafter be the only court to which either of the parties shall make any applications under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure with respect to the same accident, subject, however, to the right of the court to grant a change of venue after a hearing upon notice, upon any of the grounds upon which change of venue might be granted in an action filed in the superior court.” (Ins. Code, § 11580.2, subd. (f)(1), (2).)

“Any arbitration instituted pursuant to this section shall be concluded either: [¶] (A) Within five years from the institution of the arbitration proceeding.” (Ins. Code, § 11580.2, subd. (i)(2)(A).)

All that has occurred in this proceeding until now is that United filed a petition to commence and enforce discovery under Insurance Code section 11580.2, but did not in filing that petition request anything of the court other than for the court to assume jurisdiction and assign a case number. The petition asks for no affirmative relief either from the court or against Rubio. There is also nothing filed with the court to indicate that the petition was ever served on Rubio.

A first, minor issue, is that counsel for United has apparently changed firms since the filing of the petition, but has failed to file a substitution of counsel in this proceeding. So, there is a technical issue as to the standing of current counsel even to make the motion.

The second, and more significant problem, is that this motion to dismiss was served only by mail. In order for the court to obtain personal jurisdiction over the respondent in matters involving arbitration, service must be accomplished in a statutorily authorized manner. (Code Civ. Proc., § 1290.4; Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1041 [a petition to compel arbitration for uninsured motorist claims may be brought under the Cal. Arbitration Act].) There is nothing before the court to indicate that service by mail on counsel for Rubio (who has not appeared as counsel of record in this proceeding and in which Rubio also has not appeared) is effective service.

A third and further problem is that, on the face of the motion, there are no arbitration proceedings to dismiss. There has been no court proceeding to compel arbitration or to exercise any judicial authority over the arbitration process. The earlier-filed petition did not seek any court order, but acted as a placeholder for future-filed discovery motions. Exceeding the limitations period for concluding arbitration under Insurance Code section 11580.2, subdivisions (f) and (i), may be a basis for denying a motion or petition to compel arbitration (Santangelo v. Allstate Ins. Co. (1998) 65 Cal.App.4th 804, 807), but section 11580.2 does not authorize dismissal of apparently non-existent arbitration proceedings.

A fourth problem is that the procedural posture of a petition to commence and to enforce discovery is limited. Such a petition is not in the nature of a declaratory relief action. (Cf. Allstate Ins. Co. v. Gonzalez (1995) 38 Cal.App.4th 783, 793 [declaratory relief action to declare uninsured motorist claim barred by unreasonable delay].) United provides no authority that the court could, even if the other procedural impediments were removed, make such a ruling in the context of this limited petition.

For the above reasons, the motion to dismiss arbitration will be denied. For clarity, this ruling does address the merits of United’s contention and is without prejudice to raising such contention in a procedurally appropriate manner.