2017-00214412-CU-PT

In Re: Mia Hendrix

Nature of Proceeding: Motion to Compel Arbitration and Petition to Appoint Arbitrator

Filed By: Moua, Ali G.

Claimant Mia Hendrix, a Minor, by and through her Guardian ad Litem Alyshia Hendrix’s (“Claimant”) motion to compel arbitration and petition to appoint arbitrator is ruled upon as follows.

This is an underinsured motorist claim. Claimant was a passenger in a vehicle insured by Respondent James River Insurance Co. (“Respondent”). The accident occurred on March 22, 2016. Claimant sustained personal injuries and damages. On April 21, 2017, Claimant demanded arbitration. On 10/29/2017, the parties stipulated that arbitration would be completed no later than the end of the first week of April 2018 or

April 6, 2018. The parties also stipulated that the location of the arbitration will be in Sacramento County, and the selection of an arbitrator will be agreed upon and completed by no later than November 8, 2017. The parties have been unable to agree on an arbitrator and Respondent claims it needs an additional 45 days to complete discovery.

Claimant requests that the Court order the matter to arbitration by April 6, 2018 and appoint an arbitrator by setting the matter for an arbitration/designation conference pursuant to CCP §1281.6.

Respondent opposes setting arbitration for April 6th and requests that the Court order arbitration to be completed by no later than May 21, 2018. According to Respondent, at the time the April 6th date was agreed upon, it believed that Claimant would cooperate in discovery, but instead Claimant delayed the discovery. In late September, Respondent requested that Claimant’s deposition be taken in late October/early November. On October 12th, Respondent requested deposition dates for Claimant as well as some members of her family to be taken in mid-December. Claimant responded on November 7th with deposition dates in December. For some unexplained reasons, depositions were not taken in December. On December 20th, Respondent requested deposition dates in January. Claimant offered January 19th. As of January 2nd, Respondent had not served deposition notices. Respondent maintains that it will also need to conduct an IME of Claimant, and the depositions of other witnesses and any physicians. Thus, Respondent states it needs an additional 45 days from April 6th to complete discovery.

Claimant points the blame at Respondent’s counsel for the delay because Respondent had been served with the demand for arbitration in April 2017, but still has not noticed any depositions or an IME.

Respondent also explains that it has not refused to select an arbitrator. Respondent provided the names of three retired judges from JAMS: Nat Agliano (ret.), John Flaherty (ret.), and Ronald Sabraw (ret.), as well as Alex Polsky. Respondent also requested that Claimant provide three names from Judicate West. Claimant provided names of Sacramento arbitrators: Jack Vetter, Matt Donahue, James Hazen, Tom Spaulding, Joe Weinberger, and Mike Shepard. These names were unacceptable to Respondent. Claimant also objected to the use of JAMS given the costs, and agreed to pay only 50% of the arbitrator’s hourly fee, with all other associated fees to be paid by Respondent. Claimant provided only one name from the JAMS list, Robert Hight (ret.).

The motion to compel arbitration is GRANTED. Respondent provides no convincing reason why it delayed noticing the depositions or demanding an IME. Respondent had notice since April 2017 regarding arbitration, and could have initiated discovery pursuant to the Discovery Act. (CCP §2016 et seq.) Nor has Respondent provided any rationale as to why additional 45 days is required. Indeed, from the date of this

hearing, Respondent has almost three months to complete discovery and prepare for arbitration.

Claimant’s request for an “arbitration/designation conference” pursuant to CCP §1281.6 is DENIED. No such conference is provided for in the statute. CCP §1281.6 provides, in part:

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 or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought 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.

The Court, will therefore, follow the procedures set forth in CCP §1281.6. The Court nominates the five potential arbitrators provided by Claimant and Respondent: Nat Agliano, John Flaherty, Jack Vetter, Matt Donahue, Robert Hight. By no later than January 17, 2018, the parties shall jointly select an arbitrator, whether or not the arbitrator is among the nominees. If the parties fail to agree on an arbitrator by January 17th, the Court shall appoint the arbitrator from the Court’s nominees upon ex parte appointment by either party.