Case Number: BC524451    Hearing Date: August 08, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

FARZAD MESRIANI,
Plaintiff(s),
vs.

FRIEDA GLOTZER, ET AL.,

Defendant(s).

CASE NO: BC524451

[TENTATIVE] ORDER GRANTING MOTION TO CONSOLIDATE

Dept. 92
1:30 p.m. — #28
August 8, 2014

Defendant, Frieda Glotzer’s Motion to Consolidate is Granted.

1. Background Facts
Plaintiff, Farzad Mesriani is involved in an uninsured motorists’ arbitration action (UIM) with Mercury Insurance Company (“Mercury”). Plaintiff was insured by Mercury on 3/14/12, when she was involved in an automobile accident with an uninsured motorist. Plaintiff made a claim with Mercury, and the amount is in dispute. The accident at issue was a three-vehicle accident, and Plaintiff has also filed a civil action against Defendant, Frieda Glotzer, the driver of the other automobile involved in the collision.

2. Motion to Consolidate
At this time, Glotzer moves to consolidate the civil action with the UIM action. CCP ¿1281.2 provides:
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: . . .
(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.. . .

In other words, courts may refuse arbitration where a party to the arbitration agreement is involved in litigation with a third party, if the litigation arises out of the same transaction or series of transactions as the arbitration; and there is a possibility of conflicting rulings on common issues of law or fact. To avoid inconsistent results and the possibility that each defendant will seek to escape liability by blaming the other, the court can refuse to compel arbitration and order all parties joined in a single action. (See Mercury Ins. Group v. Superior Court (1998)19 Cal.4th 332, 339–340; Prudential Property & Cas. Ins. Co. v. Superior Court (1995) 36 Cal.App.4th 275, 279.) Thus, the court has authority to order an arbitration proceeding consolidated with the pending lawsuit for all purposes, including trial. In such cases, the parties to the arbitration agreement are forced to litigate a dispute that they had agreed to arbitrate. (Mercury Ins. Group v. Superior Court, supra, 19 Cal.4th at pp. 347–350.)

The right to arbitration, created by their agreement, is not absolute: “(I)t may have to yield if there is an issue of law or fact common to the arbitration and a pending action or proceeding with a third party and there is a possibility of conflicting rulings thereon.” (Mercury Ins. Group v. Superior Court, supra, 19 Cal.4th at p. 348.)

Plaintiff opposes the motion, arguing (a) if the actions are consolidated, the entire action should be heard by way of binding arbitration, or (b) the actions should not be consolidated, because Plaintiff wishes to arbitrate the UIM action, and Mercury has waived its right to refuse to arbitrate the action.

Plaintiff’s first argument is that the actions should be consolidated, but the proper forum for consolidation is arbitration. As Glotzer correctly notes in reply, Glotzer has not signed any arbitration agreement with Plaintiff, and is not agreeing to arbitration at this time. It would be improper to compel Glotzer into arbitration absent an agreement to arbitrate. See Sparks v. Vista Del Mar Child and Family Services (2012) 207 Cal.App.4th 1511, 1518.

Plaintiff’s second argument is that she wishes to arbitrate with Mercury, and Mercury is estopped to deny her the right to arbitrate, as Mercury has consistently insisted on arbitration in the course of the parties’ dispute. This motion, however, is not premised on whether or not arbitration between Plaintiff and Mercury is independently proper; it is clear that arbitration between the two is proper. The motion is premised, on the contrary, on CCP §1281.2(c)’s exception to the normal rules of arbitration, which makes clear that the entire case should be heard in the litigation forum if there is a possibility of conflicting rulings. That possibility is clearly present here, as there is a need for the trier of fact to apportion fault and to award damages. If the actions are not consolidated, there is a strong possibility of conflicting rulings on both of those issues. The motion to consolidate is therefore granted.

Dated this 8th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court