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Mercury Insurance Group v. Superior Court11/9/1998
true that Mercury submitted a motion rather than a petition. The term "petition," however, has been construed, in practice, to include the term "motion" when, as here, an action is already pending. (See Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 1368-1369; Fireman's Fund Ins. Companies v. Younesi (1996) 48 Cal.App.4th 451, 456-457; but see Los Angeles Police Protective League v. City of Los Angeles (1985) 163 Cal.App.3d 1141, 1144, fn. 1 [semble], disapproved on another point, Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 427, fn. 28.) That appears sound, inasmuch as one may proceed by motion as well as petition under such circumstances (Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 1997) 5:301, p. 5-95). It is also true that Mercury's motion did not seek an order compelling contractual arbitration in terms, but rather separate judicial arbitration and contractual arbitration. It did, however, seek such an order in effect. In requesting separate judicial arbitration and contractual arbitration, it necessarily requested contractual arbitration. To seek an order compelling contractual arbitration in terms is not necessary; to do so in effect is sufficient. (See Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 98-100.)
On the merits, we believe that the Court of Appeal erred by holding that the superior court's order denying Mercury's motion for separate judicial arbitration and contractual arbitration was erroneous as unauthorized.
We agree as to what standard of review should be applied, namely, abuse of discretion (cf., e.g., Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979 [consolidation of actions]; Estate of Baker (1982) 131 Cal.App.3d 471, 485 [same]), which looks to see "whether the trial court exceeded the bounds of reason" (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478).
But we do not agree as to what the application of that standard should yield. In denying Mercury's motion, the superior court consolidated the contractual arbitration proceeding with the pending action for all purposes, including trial. It could reasonably have so consolidated in order to avoid conflicting rulings on a common issue of law or fact. For, under the contractual arbitration law as it appears in Code of Civil Procedure section 1281.2, it could reasonably have determined that the contractual arbitration proceeding and the pending action arose "out of the same transaction." (Id., subd. (c).) Indeed, it could not have done otherwise. In addition, it could reasonably have determined that "there a possibility of conflicting rulings on a common issue of law or fact." (Ibid.) By way of illustration, in the contractual arbitration proceeding, the arbitrator might conclude that the Woosters were not legally entitled to damages in any amount from the unidentified, and effectively uninsured, motorist, and therefore could not obtain anything from Mercury. In the pending action, however, the superior court might conclude that the Woosters were indeed legally entitled to damages in some amount from the unidentified, and effectively uninsured, motorist, and therefore could obtain such sum from Mercury. As explained, there is no limitation imposed on the superior court's authority to consolidate in order to avoid conflicting rulings on a common issue of law or fact. As also explained, there is no pertinent preemptive effect arising from any pertinent requirement under the uninsured motorist coverage law.
In arguing to the contrary, Mercury asserts that the superior court did not have authority to consolidate the contractual arbitration proceeding with the pending
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