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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

ALLSTATE INSURANCE 

COMPANY,

 Defendant and Respondent.

 A158846, A159485

 (Contra Costa County

 Super. Ct. No. MSC15-

 01326)

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 

2 Further 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. 

3 By 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