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Judge Is Reversed Without Considering Alternative Basis
By a MetNews Staff Writer
The Court of Appeal for this district has reversed the dismissal of an action against an insurer on an uninsured-motorist claim because the trial judge did not realize that the failure of the plaintiff to arbitrate such a claim within five years can be excused where the defendant failed to provide discovery—even though the judge made a finding that the “true” reason for the delay was a miscalendaring by the plaintiff’s lawyer.
Justice Dorothy Kim of Div. Five authored the unpublished opinion. It reverses a judgment in favor of California Automobile Insurance Company which followed Los Angeles Superior Court Judge Edward B. Moreton Jr.’s April 30, 2021 order dismissal of arbitration proceedings brought by an insured, Darnel Geoulla.
Moreton acted pursuant to Insurance Code §11580.2(i)(2)(A) which, in general, mandates dismissal of an arbitration of an uninsured motorist (“UIM”) claim is not concluded within five years from the time it was instituted.
Even with an extra six months accorded by emergency pandemic rules, arbitration was not completed within the time allotted. Geoulla argued that the insurer’s dilatory tactics in response to discovery requests brings into play §11580.2(i)(3) which provides:
“The doctrines of estoppel, waiver, impossibility, impracticality, and futility apply to excuse a party’s noncompliance with the statutory timeframe, as determined by the court.”
Moreton’s Order
Moreton, in his order, declared:
“[D]ifficulty in obtaining discovery has not been recognized as making arbitration (or trial, based on cases analyzing Code of Civil Procedure 583.420) impossible, impracticable, or futile.”
In support of that proposition, the judge cited the Oct. 17, 1969 opinion by Div. Two of this district’s Court of Appeal in Langan v. McCorkle which concerned a failure to bring a case to trial within five years. The court said in that case:
“Langan’s other excuse for his failure to bring his action against McCorkle to trial within the statutory period—his difficulty in taking the deposition of an out-of-state witness which delayed his discovery of additional parties defendant and his filing of an amended complaint—does not bring the case within the impracticable and futile exception to the mandatory five-year period.”
Fifth District Opinion
Kim, in her opinion reversing the judgment, pointed to the Fifth District’s May 18, 1983 opinion in Westinghouse Electric Corp. v. Superior Court, also relating to §583.420, where it was said:
“If plaintiff has completed all of his discovery and is or has been ready to proceed to trial and the record shows that defendant has failed to vigorously pursue discovery, the nonreadiness of the case is due to defendant. In that situation, impracticability would constitute an excuse for noncompliance if plaintiff’s conduct is otherwise reasonable.”
Langan and Westinghouse are cases on equal footing, neither having been repudiated by the California Supreme Court.
Kim’s View
Kim wrote:
“Here, the trial court suggested that it could not consider the discovery issues raised by plaintiff when determining whether the impracticability exception applied.”
She said that while an appellate court will “normally presume the trial court was aware of and understood the scope of its authority and discretion under the applicable law,” it won’t so presume where the record shows that the judge was not aware of the actual scope of his or her discretion. Kim declared:
“Accordingly, we conclude the trial court erred by assuming that difficulty in obtaining discovery can never establish impossibility, impracticability, or futility in bringing a case to arbitration and must therefore remand the matter to ensure the court exercises its informed discretion in deciding whether the difficulties in this case warrant an exception to the five-year deadline.”
Not Discussed
Kim did not discuss why her court “must” remand notwithstanding Moreton having made clear in his order that—aside from it allegedly having been “impossible, impracticable, or futile” to conclude arbitration by the statutory deadline, as extended, because of the insurer’s failure to cooperate in discovery—the actual reason arbitration had not been completed had nothing to do with any discovery delays.
Moreton’s order says:
“[T]he Court notes that Petitioner’s counsel admits that on April 5, 2021, upon receiving the Motion to dismiss, counsel realized that the five-year deadline to arbitrate was miscalendared for March 25, 2022 instead of March 25. 2021. This miscalculation seems to be the true cause for Petitioner’s failure to bring arbitrate his claim within five years and is an insufficient reason to deny Defendant’s Motion.”
The Superior Court judge cited the April 24, 1985 opinion by Div. Three of the First District Court of Appeal in Cannon v. City of Novato as saying that because “the delay in going to trial was caused by appellants’ own miscalculation rather than circumstances beyond their control,” their action was properly dismissed.
Kim did not address Cannon nor otherwise consider Moreton’s basis, independent of the discovery activity, in concluding that Geoulla “has not met his burden of showing how it would have been impossible, futile, or impracticable to conclude the UIM arbitration within five years.”
The case is Geoulla v. California Automobile Insurance Co., B314486.
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