Case Number: BS172378 Hearing Date: May 31, 2018 Dept: 3

WAWANESA GENERAL INS. CO.,

Plaintiff(s),

vs.

DUFF V. MACDONALD,

Defendant(s).

CASE NO: BS172378

[TENTATIVE] ORDER GRANTING MOTION TO COMPEL ARBITRATION

Dept. 3

1:30 p.m.

May 31, 2018

1. Motion to Appoint Arbitrator

Duff MacDonald made a claim on his father’s insurance policy with Wawanesa General Insurance Company for damages arising out of an automobile accident. MacDonald and Wawanesa were unable to resolve the claim, and agreed to submit the matter to arbitration. Since they agreed to do so, however, MacDonald has not actively engaged in the process of selecting an arbitrator. Wawanesa seeks an order compelling MacDonald to arbitrate and appointing an arbitrator.

CCP §1281.6 provides:

If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, 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 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.

Wawanesa shows that the parties’ agreement does not have a procedure for selecting an arbitrator, and that the parties have not agreed to a method to select an arbitrator. Indeed, Wawanesa’s attempts to communicate with MacDonald, through his attorney, concerning choosing an arbitrator have all been met with silence.

Wawanesa suggests Retired Judge Joe Hilberman, Retired Judge Robert Letteau, Wendy Kramer, and Darrell Forgey as potential arbitrators. MacDonald has not filed any opposition to the motion, and therefore has not suggested any arbitrators.

The Court nominates the following five persons:

1. Hon. Robert Letteau, Ret.

2. Hon. Eli Chernow, Ret.

3. Hon. Judith Ryan, Ret.

4. Hon. Nancy Wieben Stock, Ret.

5. Hon. Sheila Sonenshine, Ret.

The Court sets a non-appearance case review in five court days, on 6/07/18. The parties are ordered to notify the Court, on or before 6/06/18, if they agree to an arbitrator. If they do not do so, the Court will appoint an arbitrator from the foregoing list on 6/07/18.

The Court notes that Wawanesa asks for an order selecting an arbitrator and requiring the parties to compete arbitration within sixty days. Wawanesa does not cite authority for this request, and it is denied. The Court is bound by the provisions of the Code concerning the method for selection of the arbitrator, and the Court is not inclined to impose a deadline on arbitration absent authority permitting it to do so.

2. Motion to Compel Responses to Supplemental Interrogatories

Discovery procedures available to the parties in uninsured motorist cases are basically the same as those available in California civil litigation, subject to certain limitations not applicable here. Ins.C. §11580.2(f). Discovery between insurer and insured may proceed without regard to when the arbitration is initiated; there is no requirement that either have in some manner entered a “formal appearance” in the proceeding. Workman v. Superior Court (1986) 176 Cal.App.3d 493, 500.

Jurisdiction to resolve discovery disputes (including the issuance of any orders to compel discovery) is vested in the superior court (a) in the proper county for the filing of a lawsuit against the uninsured motorist for bodily injury arising from the accident or (b) in any county specified in the policy as a proper county for arbitration or action on the policy. See Ins. C. §11580.2(f)(1), (2); Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 921-926.

Wawanesa propounded supplemental interrogatories on MacDonald on 11/28/17. Despite an extension of time to respond (requested by MacDonald’s attorney), MacDonald did not respond. Wawanesa therefore seeks an order compelling him to respond to the supplemental interrogatories, without objections, and to pay sanctions.

Wawanesa’s motion is granted. MacDonald is ordered to serve verified responses to supplemental interrogatories, without objections, within fifteen days. CCP §2030.290(a),(b).

Sanctions are mandatory. §2030.290(c). Wawanesa seeks sanctions in the amount of $810 – two hours to prepare the motion and three hours to appear at the hearing, all at $150/hour, plus a $60 filing fee. The Court finds one hour is reasonable to prepare this form motion to compel. Counsel is located in downtown Los Angeles, and therefore the Court awards one hour of appearance time. The Court therefore awards a total of two hours of attorney time at the requested rate of $150/hour, or $300 in attorneys’ fees. The Court also awards the filing fee of $60 each. Sanctions are sought and imposed against MacDonald and his attorney of record, jointly and severally; they are ordered to pay sanctions to Wawanesa, by and through its attorney of record, in the total amount of $360, within twenty days.

Wawanesa is ordered to give notice.