Case Number: BS147862    Hearing Date: August 22, 2014    Dept: 93

Superior Court of California
County of Los Angeles

Department 93

CALIFORNIA CAPITAL INSURANCE COMPANY,
Plaintiff(s),
v.

LAWRENCE E. MOSER, et al.,
Defendant(s). Case No.: BS147862

Hearing Date: August 22, 2014

[TENTATIVE] RULING RE:
PETITIONER CALIFORNIA CAPITAL INSURANCE COMPANY’S PETITION TO COMPEL ARBITRATION [UNDERINSURED MOTORIST COVERAGE]

Petitioner California Capital Insurance Company’s Petition to Compel Arbitration [Underinsured Motorist Coverage] is DENIED.

Legal Standard

California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-72.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, the party opposing the petition then bears the burden of proving by a preponderance of the evidence any fact necessary to demonstrate that there should be no enforcement of the agreement, and the trial court sits as a trier of fact to reach a final determination on the issue. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) The Court is empowered by CCP Section 1281.2 to compel parties to arbitrate disputes pursuant to an agreement to do so. CCP Section 1281.2 states that “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.
(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. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition. This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295.

The party petitioning to compel arbitration under written arbitration agreement bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and party opposing petition must meet the same evidentiary burden to prove any facts necessary to its defense. The trial court acts as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence. (CCP, § 1281.2; Provencio v. WMA Securities, Inc., 125 Cal. App. 4th 1028, 1031.)

Discussion

Petitioner moves to compel arbitration pursuant to the arbitration provision in Respondent’s insurance policy. (Petition, Exh. C, p. 6 (“Arbitration Section”), §§ A(1) and A(2).) Petitioner’s evidence that Respondent entered into the arbitration agreement, however, is insufficient. There is no declaration attached in support of the Petition, or authenticating the attached exhibits. Petitioner first points to the “declaration page” of Respondent’s policy, attached as Exhibit B to the Petition. The “declaration page” appears to simply indicate for whom and what vehicles coverage is provided by Petitioner. (Petition, Exh. B.) Next, Petitioner points to what is purportedly the Arbitration Section of Respondent’s policy, but there is no evidence indicating that this is part of Respondent’s policy. (See Petition, p. 2:25-28 and Exh. C.) It cannot be determined by a preponderance of the evidence that the Arbitration Section is part of Respondent’s policy, or that he agreed to such arbitration as there is no signature page provided. Therefore, the request for an order compelling Respondent’s to arbitrate this controversy is DENIED.

Respondent is ordered to give notice.

DATED: August 22, 2014

_________________________
Hon. Gail Ruderman Feuer
Judge, Los Angeles Superior Court