Brewer v. Allstate Insurance Company CA1/5 ( 2022 )

Filed 2/18/22 Brewer v. Allstate Insurance Company CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or or dered published for pur-
poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
EMMA S. BREWER,
Plaintiff and Appellant,
A158846, A159485
v.
ALLSTATE INSURANCE (Contra Costa County
COMPANY, Super. Ct. No. MSC15-
01326)
Defendant and Respondent.
The trial court entered an order confirming an arbitration
award which denied plaintiff Emma S. Brewer any recovery
under the uninsured motorist (UM) coverage of a policy issued by
defendant Allstate Insurance Company (Allstate). The court also
granted a motion for judgment on the pleadings on Brewer’s
remaining claims based on the denial of that coverage. We affirm
the order confirming the arbitration award, but reverse the
motion granting judgment on the pleadings and remand to the
trial court with instructions to grant leave to amend the
complaint.
I. BACKGROUND
Brewer was insured under an automobile insurance policy
issued by Allstate. She sustained injuries on July 29, 2013, and
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claimed that a hit-and-run driver had struck her vehicle as she
was traveling eastbound on Highway 24 and pushed her car into
the rear end of another vehicle. She claimed coverage under the
UM section of her policy.
On July 24, 2015, Brewer demanded that Allstate arbitrate
her UM claim under Insurance Code section 11580.2, subdivision
(f).1 Four days later, on July 28, 2015, she filed a complaint
against Allstate in superior court, containing causes of action for
(1) personal injury—motor vehicle/uninsured motorist damage;
(2) breach of contract; (3) contractual breach of the implied
covenant of good faith and fair dealing; (4) tortious breach of the
implied covenant of good faith and fair dealing; (5) bad faith and
(6) unfair trade practices.
Following an arbitration, the arbitrator issued an award on
October 29, 2018, stating that Brewer would “take nothing by
way of her claim.” In a letter addressed to all counsel for the
parties dated November 9, 2018, the arbitrator explained the
reason for his award: “I have concluded that claimant has not
met the threshold question of whether this amounts to a valid
UM (hit and run) claim, as there is insufficient evidence to
support the claim of contact with a claimed hit and run vehicle.
Critical to this finding is the testimony and report of expert
witness Pinkston, the photographs of the left rear door and
1 That section requires insurers to provide UM coverage
and entitles an insured to arbitrate the issue of whether an
uninsured motorist was liable and the amount of the damages.
(See, e.g., State Farm Mutual Automobile Ins. Co. v. Superior
Court (2004) 123 Cal.App.4th 1424, 1429.)
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quarter panel of Claimant’s vehicle showing longitudinal
striations consistent with a front to back contact with some other
object/vehicle. [¶] Just as important, however, is my finding that
even if there had been involvement of a third vehicle (which I
haven’t [found]), that from a liability standpoint, Claimant has
failed to meet her burden of proof that it was a cause
of/contributed to the happening of the accident in question.”
Allstate moved to confirm the arbitration award under
Code of Civil Procedure section 12852 on July 16, 2019. Brewer
asked that the petition be continued, because (1) she had a
pending “Motion and/or Request for Reconsideration” before the
arbitrator; and (2) she had just issued discovery to Allstate on her
bad faith claim. At no point did Brewer petition the court to
vacate or correct the arbitration award pursuant to sections
1286.2 or 1286.6.
The superior court confirmed the arbitration award on
September 26, 2019. The court noted in its order that Brewer
had not timely opposed Allstate’s petition to confirm, and that the
two grounds stated in her opposition to confirmation were
irrelevant to confirmation of the award. The court entered a
judgment on the arbitration award on October 11, 2019.
Allstate then moved for judgment on the pleadings on the
ground that all of the causes of action were predicated on the
assumption that there was coverage under the UM portion of the
policy, and the arbitrator had determined there was no such
2Further references are to the Code of Civil Procedure
unless otherwise indicated.
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coverage. The court granted that motion on December 26, 2019,
and subsequently issued a judgment in Allstate’s favor on
February 19, 2020.
II. DISCUSSION
A. Motion to Confirm Arbitration Award
Brewer argues that the court should not have granted
Allstate’s motion to confirm the arbitration award. We disagree.
An award reached by an arbitrator “is not subject to
judicial review except on the grounds set forth in . . . sections
1286.2 (to vacate) and 1286.6 (for correction).” (Malek v. Blue
Cross of California (2004) 121 Cal.App.4th 44, 55; see Durand v.
Wilshire Ins. Co. (1969) 270 Cal.App.2d 58, 61–62 [applying
§§ 1286.2 and 1286.6 to arbitrations under § 11580.2].) A motion
to vacate or correct an arbitration award must be filed within 100
days of service of the award. (Knass v. Blue Cross of California
(1991) 228 Cal.App.3d 390, 393.)3 “Unless a statutory basis for
vacating or correcting an award exists, a reviewing court ‘shall
confirm the award as made. . . .’ ” (Corona v. Amherst Partners
(2003) 107 Cal.App.4th 701, 706; § 1286.)
In this case, service of the arbitration award was made in
November 2018. Brewer did not file a petition to vacate or
correct the award at any time, much less within 100 days. The
trial court was therefore obligated to confirm the award upon
Allstate’s timely application.
3By contrast, a petition to confirm an arbitration award
must be served and filed four years after the service of the award.
(§ 1288.)
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Brewer claims an order confirming the award was
“premature” because after the arbitrator issued his award,
Brewer served a request for 538 admissions on Allstate that were
still pending at the time of the hearing on the motion to confirm.
Brewer argues that this request for admissions pertained to her
then-extant claim for bad faith against Allstate, and that the
court should not have confirmed the arbitration award on her
entitlement to UM coverage while this discovery was pending.
She cites no authority for this proposition and we, like the trial
court, conclude that the outstanding discovery had no bearing on
whether an arbitration award on a related claim can be
confirmed, at least when there is no pending motion to vacate or
correct the award.
Brewer also contends the court should not have granted the
petition to confirm the arbitration award because she had filed a
“motion for reconsideration” under section 1008 with the
arbitrator. Section 1008 applies “[w]hen an application for an
order has been made to a judge, or to a court. . . .” (§ 1008, subd.
(a).) It does not on its face apply to decisions by arbitrators.
Even if it did, section 1008 imposes a 10-day limit on motions for
reconsideration, and it is well-established that this time limit is
jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th
1494, 1499; see Kinda v. Carpenter (2016) 247 Cal.App.4th 1268,
1278 [“section 1008 places strict jurisdictional limits on a
litigant’s ability to seek reconsideration of a prior ruling”].)
Brewer’s letter was not sent to the arbitrator until September
2019, nearly 11 months after the arbitration award was served.
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The “motion for reconsideration” did not provide a basis for
denying or deferring confirmation of the arbitration award when
the motion was not authorized in the first place.
Brewer also contends that the judgment on the order
confirming the arbitration award was an interim judgment that
should be reversed because it violated the one final judgment
rule. We disagree.
Under the one final judgment rule, there can generally be
only one judgment in a civil action, and intermediate rulings
cannot be reviewed on appeal until the final resolution of the
case. (Reddish v. Westamerica Bank (2021) 68 Cal.App.5th 275,
277.) The overall objective of the one final judgment rule is to
avoid the cost and oppression of “piecemeal disposition and
multiple appeals.” (Kinoshita v. Horio (1986) 186 Cal.App.3d
959, 966–967.)
Judgments confirming arbitration awards are subject to the
one final judgment rule. (See Kaiser Foundation Health Plan,
Inc. v. Superior Court (2017) 13 Cal.App.5th 1125, 1139.) Thus,
an order confirming an arbitration award on one claim is not
final when other claims between the parties remain outstanding,
and an appeal from such an order is subject to dismissal until
such time that all claims have been resolved. (Rubin v. Western
Mutual Ins. Co. (1999) 71 Cal.App.4th 1539, 1547 [dismissing
appeal from order confirming arbitration award when the merits
of four causes of action between the parties were unresolved].)
The one final judgment rule is concerned with appealability.
Brewer cites no authority to support her suggestion that simply
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because it would be premature to appeal from a judgment
confirming an arbitration award when the case had not yet been
resolved, this renders that interim judgment invalid on its
merits.
In any event, there has been a final judgment in this case,
and the main concern of the one final judgment rule—piecemeal
appeals—is not presented. After the interim judgment was
entered on the order confirming the arbitration award, the court
entered a final judgment in favor of Allstate following the
judgment on the pleadings. Brewer appealed and challenged
both the order confirming the arbitration and the judgment on
the pleadings in a single appeal. As we shall explain, the
judgment on the pleadings must be reversed to give Brewer the
opportunity to amend her complaint. But this does not mean the
judgment in the case was not final.
B. Motion for Judgment On The Pleadings
Brewer contends the court erred when it granted Allstate’s
motion for judgment on the pleadings and dismissed her
complaint. The trial court correctly found that the complaint as
drafted did not state a cause of action in light of the arbitrator’s
award, but it should have granted Brewer leave to amend.
An order granting a motion for judgment on the pleadings
is reviewed under the same standard that is applied to a
judgment following the sustaining of a demurrer. (McCutchen v.
City of Montclair (1999) 73 Cal.App.4th 1138, 1144.) We review
the challenged complaint de novo to determine whether it states
facts sufficient to constitute a cause of action, considering any
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matters subject to judicial notice. (Jacks v. City of Santa
Barbara (2017) 3 Cal.5th 248, 272.)
Here, all of the causes of action in the complaint concern
Allstate’s failure to pay benefits under the UM coverage of the
policy and presuppose that Brewer was entitled to UM coverage
under her policy. The trial court properly took judicial notice of
the arbitration award finding that there was no coverage under
the UM provisions of the policy and of the order confirming the
arbitration award. “ ‘[A] bad faith claim cannot be maintained
unless policy benefits are due.’ ” (Rios v. Scottsdale Ins. Co.
(2004) 119 Cal.App.4th 1020, 1027.) According to the arbitrator,
whose award has been confirmed by the court, UM benefits were
not due to Brewer under her policy. Accordingly, the complaint
did not state a cause of action for bad faith or any other claim
predicated on the failure to pay Brewer benefits under her UM
coverage.
Brewer argues that her claims were based on Allstate’s
failure to pay under the rental car reimbursement and medical
payments (med-pay) provisions of the policy, which were not
dependent on UM coverage and were not affected by the
arbitration. (See Progressive West Ins. Co. v. Superior Court
(2005) 135 Cal.App.4th 263, 270 [automobile med-pay provides
first party coverage on a no-fault basis].) Although the complaint
only mentions UM coverage, we consider whether the trial court
should have granted Brewer leave to amend to allege damages for
the denial of coverage under the non-UM portions of the policy.
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“ ‘Denial of leave to amend after granting a motion
for judgment on the pleadings is reviewed for abuse of
discretion.’ ” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000)
82 Cal.App.4th 592, 602.) “Where a complaint could reasonably
be amended to allege a valid cause of action, we must reverse
the judgment. [Citations.] Leave to amend is liberally allowed; a
specific request to amend is not required as a prerequisite to
review on appeal the trial court’s decision not to grant leave
to amend.” (Kempton v. City of Los Angeles (2008) 165
Cal.App.4th 1344, 1348; see Virginia G. v. ABC Unified School
Dist. (1993) 15 Cal.App.4th 1848, 1852 [after motion
for judgment on the pleadings is granted, “denial of leave
to amend constitutes an abuse of discretion if the pleading does
not show on its face that it is incapable of amendment”].)
Brewer argued in her opposition to the motion for judgment
on the pleadings that she had coverage for both rental car
reimbursement and $25,000 in med-pay, and that claims under
both of these provisions were denied by Allstate. While we
express no view about the ultimate merit of her claims, there is a
reasonable possibility that Brewer could amend the complaint to
state a cause of action. (See Buller v. Sutter Health (2008) 160
Cal.App.4th 981, 992.)
III. DISPOSITION
The judgment is reversed. The case is remanded with
directions to give Brewer an opportunity to amend her complaint.
The order confirming the arbitration award is affirmed.
Ordinary costs on appeal are awarded to Brewer.
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NEEDHAM, J.
We concur.
JACKSON, P.J.
BURNS, J.
Brewer v. Allstate Insurance Co. / A158846, A159485
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