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Hugo v. State Farm Mutual Automobile Insurance11/6/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
The trial court dismissed an underinsured motorist arbitration proceeding between appellant John Hugo (Hugo) and his insurance carrier State Farm Mutual Automobile Insurance Company (State Farm), for failure to prosecute. Claiming the trial court lacked jurisdiction to dismiss the arbitration proceeding, Hugo appeals from the judgment of dismissal. Because we agree that the trial court had no jurisdiction to dismiss the arbitration proceeding, and have stated so in Blake v. Ecker (2001) 93 Cal.App.4th 728 (Blake), we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The arbitration proceeding arises from a car accident that occurred in 1994 in which Hugo was injured by the negligence of an underinsured motorist. Although the parties argued to arbitrate in 1997, by August 2002, the arbitration hearing had not commenced. The delay was based on the following events.
In March 1997, after settling with the underinsured motorist, Hugo filed a claim with State Farm based on the underinsured motorist provision in his automobile liability insurance policy. That policy required Hugo to arbitrate the claim. Both parties agreed to arbitration and exchanged lists attempting to select an arbitrator. More than one and one-half years later, the parties still had not agreed on an arbitrator.
On December 18, 1998, Hugo filed a petition to compel arbitration because the parties had reached an impasse in selecting an arbitrator. (Code Civ. Proc., ยง 1281.2.) The trial court granted the petition on January 25, 1999, specifically addressing the method the parties were to use in selecting an arbitrator. In addition, the trial court ordered that the arbitration proceeding begin by "Memorial Day 1999." The trial court then dismissed the petition without prejudice, but its order stated that it would "vacate this dismissal upon request, if any party files a motion to confirm, vacate, or modify the arbitration award, or to compel discovery, or for other good cause shown."
The arbitration languished for three and one-half years for a variety of reasons, including the parties' inability to select an arbitrator, difficulty scheduling an arbitration date, Hugo's repeated substitution of counsel, discovery disputes, and numerous other scheduling conflicts.
Although it appeared that the parties had selected an arbitrator by November 1999, Hugo ultimately rejected that arbitrator. It was not until April 2001 that the parties had agreed on retired Los Angeles Superior Court judge George Dell (Dell) as the arbitrator and scheduled the arbitration for July 2001.
On May 7, 2001, Dell confirmed that the arbitration would proceed and requested that the parties deposit a retainer. Dell acknowledged receipt of State Farm's retainer, but Hugo did not pay his portion of the arbitrator's fees. Hugo apparently did not pay his portion of the fees until August 2002.
In the meantime, the arbitration did not go forward in July 2001. Hugo changed counsel, the parties became embroiled in a discovery dispute involving Hugo's designation of 36 non-retained experts, and Hugo's latest counsel canceled the arbitration. The parties attempted to reschedule, and Dell offered additional dates through the end of 2001. But the arbitration did not go forward in 2001.
In May 2002, Hugo, now re
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