Douglas Gray vs. Infinity Insurance

In general, “‘an arbitration has a life of its own outside the judicial system.’” Briggs v. Resolution Remedies (2008) 168 Cal.App.4th 1395, 1401. However, “Insurance Code section 11580.2, subdivision (f) commits discovery disputes in uninsured motorist arbitrations to the superior court.” Id. fn.

6.

Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be applicable to these determinations, and all rights, remedies, obligations, liabilities and procedures set forth in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be available to both the insured and the insurer at any time after the accident, both before and after the commencement of arbitration[.]

Ins. Code, § 11580.2(f).

“Importantly, the statute then adopts the California Civil Discovery Act in its entirety.” Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 920. The superior court has exclusive jurisdiction to hear discovery matters arising under uninsured and underinsured motorist arbitrations. Id. at pp. 920, fn. 6, 926.

Petition for Order Compelling Selection of Arbitrator

Code of Civil Procedure section 1281.6 provides as follows:

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.

In his supporting declaration, Petitioner’s counsel states the parties agreed to an arbitrator (Daniel Quinn) and set the date for November 13-14, 2025. Loewen Decl., ¶ 6. Thereafter, the arbitration was unilaterally canceled by Respondent’s counsel stating she wanted to select a different neutral arbitrator. Loewen Decl., ¶ 9. Despite agreeing to provide a list of proposed arbitrators by December 2, 2025, Respondent’s counsel has failed to provide such a list. Loewen Decl., ¶ 10. The applicable underinsured motorist policy states either party may demand arbitration, but does not describe a method for appointment of the arbitrator. Loewen Decl., Exh. A, Part C. While the Court is aware Respondent’s counsel asserts it was Petitioner who canceled the arbitration (Bazar Decl. at ¶8) perhaps due to his request to continue the November, 2025 7

arbitration dates, the Court finds otherwise. It appears Ms. Bazar’s response to Mr. Loewen’s request to reschedule the arbitration dates was to inform arbitrator Quinn the arbitration was off by requesting the arbitrator charge the parties his minimum two (2) hour minimum and issue refunds for the remaining retainers paid. See, email from Bazar to Loewen dated November 18, 2025.

Thus, it appears the parties are unable to reach an agreement on an arbitrator with Petitioner desirous of an arbitrator in the Nevada County/Northern California area, and Respondent is desirous of an arbitrator in the San Diego, California area. Notably, counsel previously agreed to an arbitrator in Stockton, California which most would consider a central California location.

Respondent’s counsel opines “Truckee County” is rural and small and such does not lend itself to an adequate selection of arbitrators. The Court notes, there is no such area as “Truckee County”. The Town of Truckee, however, is located in Nevada County. While Truckee, California is considered a rural area, Nevada County is adjacent to and near many other counties including Sacramento County, an area one would be hard pressed to call “rural”. In addition, Northern California is commonly considered to encompass San Franciso County and it’s surrounding areas. Again, hardly a rural area.

“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.” Code Civ. Proc. § 1281.6. The parties have not jointly supplied a list of proposed arbitrators. Thus, the court shall nominate five persons pursuant to Code of Civil Procedures § 1281.6.

Accordingly, the Court nominates the following five arbitrators: Hon. Marla O. Anderson (Ret.) Hon. Cecily Bond (Ret.) Hon. Lynn Duryee (Ret.) Hon. William J. Cahill (Ret.) Hon. Jackson Lucky (Ret.)

The Court shall issue a formal notice and serve the parties.

Pursuant to Code of Civil Procedure section 1281.6, within five (5) days of receipt of notice of the above-referenced nominees from the Court, Petitioner and Respondent “may...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. Code Civ. Proc., § 1281.6.

Accordingly, the parties are ordered to file a joint notice of selection of arbitrator setting forth their agreed upon arbitrator no later than March 30, 2026. If a joint notice is not filed by said date, the Court will issue an order selecting an arbitrator.

Discovery

Petitioner seeks production of the raw data from a neurophysical Independent Medical Examination (“IME”).

Discovery may be conducted both before and after the commencement of an uninsured / underinsured motorist arbitration proceeding. Cal. Ins. Code, § 11580.2(f); Miranda v. 21st Century Insurance Co., supra, 117 Cal.App.4th at 923. The discovery statutes of the Code of Civil Procedure apply to uninsured / underinsured motorist arbitration proceedings. Cal. Ins. Code, § 11580.2(f)(2).

Pursuant to Code of Civil Procedure section 2032.530(a), “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” Plaintiff also has a “right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for that opinion. Evid. Code, § 721, subd. (a).)” Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 838. “Without the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and crossexamine the neuropsychologist on the basis and reasons for the neuropsychologist's opinion.”

Ibid. Moreover, “disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.” Ibid. Such audiotaping will also ensure the examiner does not overstep bounds set by the court, provide the context of responses for purposes of trial, protect the examinee’s interests since the examinee’s counsel is usually not present, and assure any evidence of abuse can be presented to the court. Ibid. “Without plaintiffs' access to the audiotape and raw data, plaintiffs cannot adequately protect these interests.”

Ibid.

At bar, Petitioner, has shown a legitimate need for the raw data requested. The parties are ordered to meet and confer and, within five (5) days of service of entry of this order, finalize a proposed protective order to adequately addresses any confidentiality and security concerns of the parties. After the meet and confer efforts, the parties shall either file the protective order with the court or, if such efforts fail, each party shall file a proposed protective order with the Court. (The Court notes a proposed protective order has been provided; however, there are what the Court believes are obvious issues with that order (e.g. referencing “Truckee County” instead of Nevada County, “Truckee Courthouse” instead of branch; and error reference in the footer, etc.).)

Respondent’s failure to timely provide the discovery requested, or, alternatively, file a motion for a protective order, constitutes a misuse of the discovery process. Code Civ. Proc., §2023.010(d). Sanctions are appropriate and have been properly noticed. Therefore, Petitioner’s request for sanctions against Respondent is granted, yet it is granted in the amount of $4,500.00 which the Court finds to be an amount reasonably related to the pending motion. The sanctions are to be paid within ten (10) days of service of notice of entry of this order.

9