Filed 3/27/24 Ourfali v. 21st Century Ins. Co. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

GHOUGAS OURFALI,

Plaintiff and Appellant,

v.

21ST CENTURY INSURANCE 

COMPANY,

Defendant and 

Respondent.

 B324150

 (Los Angeles County

 Super. Ct. No. 21GDCP00151)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Colin P. Leis, Judge. Affirmed.

Robert Alan Sheinbein for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Tracy D. Forbath, 

Charles L. Harris and Eric R. Hagle for Defendant and 

Respondent.
2

After he suffered injuries from an automobile accident with 

an uninsured motorist, appellant Ghougas Ourfali sought to 

recover his damages through arbitration with his insurer, 

respondent 21st Century Insurance Company. The arbitrator 

awarded appellant his damages and also granted his motion for 

costs of proof pursuant to Code of Civil Procedure section 

2033.4201 based on respondent’s failure to admit certain requests 

for admission.

The trial court affirmed the arbitration award in favor of 

appellant, but denied his petition to affirm the award of his costs 

of proof. Instead, the court granted respondent’s petition to 

vacate the award of costs of proof, finding that the arbitrator 

exceeded his jurisdiction based on the language of the arbitration 

clause in appellant’s insurance policy. On appeal, appellant 

contends that the arbitrator was empowered to decide discovery 

disputes under the relevant statutory framework and the 

language of the parties’ agreement. We disagree and affirm. 

FACTUAL AND PROCEDURAL HISTORY

I. Appellant’s Accident and Demand for Arbitration

On July 1, 2020, appellant was in an automobile accident 

with an uninsured motorist. At the time, he was insured under a 

policy issued by respondent, which included uninsured motorist 

coverage. Appellant’s insurance policy contained an arbitration 

provision, providing that “If we and a person insured do not 

agree as to whether he or she is legally entitled to recover 

damages from an Uninsured Motorist or the amount of such 

damages, then upon written demand of either, the disagreement 

shall be submitted to a single neutral Arbitrator for decision, in 

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

accordance with the law of California. All other issues between 

us and any person insured, including the existence or limits of 

coverage, may not be decided by the Arbitrator, but must be 

decided by a Court of competent jurisdiction.” (Emphasis in 

original.) 

Appellant claimed that he sustained bodily injury, loss of 

earnings, medical expenses, and other damages from the 

accident. He tendered a claim for his damages to respondent, but 

respondent refused to settle. Appellant therefore sent respondent 

a demand for arbitration pursuant to the arbitration provision in 

the insurance policy and Insurance Code section 11580.2. 

Appellant filed a petition for order compelling arbitration 

in the trial court in April 2021. The court granted the petition 

and ordered the parties to arbitration. After the parties agreed 

upon an arbitrator, the arbitration commenced on February 3, 

2022. 

II. Arbitration Decision and Award of Costs

In March 2022, the arbitrator issued a written decision, 

awarding appellant $88,011.26 in damages for medical expenses 

and pain and suffering. 

Appellant subsequently brought a motion before the 

arbitrator for costs of proof expenses and attorney fees pursuant 

to section 2033.420 (the fee motion). He contended that during 

discovery, respondent “failed or refused to admit” several 

requests for admission related to the cause of appellant’s injuries 

and whether the medical expenses he incurred were reasonable

and necessary. Appellant argued that respondent’s failure to 

admit these requests required additional discovery, including 

taking appellant’s deposition and retaining expert witnesses. 

Therefore, he sought $45,189.50 in expenses and attorney fees 
4

incurred as costs of proof for the requests for admissions 

respondent failed to admit. Respondent opposed the motion 

arguing, as relevant here, that a decision regarding entitlement 

to attorney fees and costs under the discovery statutes was 

outside the scope of the parties’ arbitration agreement and 

therefore such an award would be in excess of the arbitrator’s 

powers. 

The arbitrator conducted a hearing on appellant’s fee 

motion on April 25, 2022. In a written decision issued May 4, 

2022, the arbitrator partially granted the fee motion. The 

arbitrator acknowledged that the “ruling could go either way” 

and that the policy language was “somewhat ambiguous.” 

Ultimately, the arbitrator found that the insurance policy “did 

not preclude this type of motion and indicated California law 

should apply,” and therefore concluded that appellant’s costs of 

proof were properly awarded pursuant to Insurance Code section 

11580.2, subdivision (f)(6). The arbitrator awarded appellant 

$34,789.50 in attorney fees and expenses. 

III. Petition to Vacate

On May 27, 2022, appellant filed a petition with the 

superior court to confirm the arbitration award and the fee award 

and for entry of judgment. The same day, respondent filed a 

petition to vacate the fee award.

2 It sought to vacate the fee 

award on the ground that the arbitrator exceeded his powers by 

deciding a discovery dispute, which was outside the scope of the 

parties’ arbitration agreement. 

2 Respondent subsequently filed an opposition to appellant’s 

petition to confirm the awards, raising the same arguments as in 

its petition to vacate. 
5

Appellant opposed the petition to vacate. He argued that 

the policy language did not preclude the arbitrator’s award of 

costs of proof and that the discovery statutes applied to 

uninsured motorist arbitrations. 

At the July 12, 2022 hearing on the petitions, the court 

asked appellant’s counsel to address the scope of the contractual 

arbitration provision. Appellant’s counsel responded that the 

policy language granting the arbitrator authority to determine 

liability and amount of damages encompassed rulings on related 

discovery issues, such as the cost of proof award at issue here. 

Appellant also contended that the contrary holding in Miranda v. 

21st Century Ins. Co. (2004) 117 Cal.App.4th 913 (Miranda) was 

dicta. The court took the matter under submission. 

The court issued a written order affirming the arbitration 

award of $88,011.26 in favor of appellant. However, the court 

vacated the fee award, finding that the arbitrator exceeded his 

authority in awarding costs of proof. Relying on Miranda, supra,

117 Cal.App.4th at p. 926, the court found that it had “exclusive 

jurisdiction to hear discovery matters arising under uninsured 

motorist arbitrations.” The court further found that the language 

of the policy similarly limited the scope of the arbitration to “only 

whether Petitioner ‘is legally entitled to recover damages’ and 

‘the amount of such damages.’” The court entered judgment 

confirming the arbitration award on September 29, 2022. 

Appellant timely appealed. 

DISCUSSION

Appellant argues that arbitrator had the authority to grant 

his motion for costs of proof and the trial court therefore erred in 

concluding to the contrary. We conclude, as the trial court did, 
6

that the arbitrator exceeded the scope of his authority under the 

parties’ arbitration agreement and relevant case law.

I. Applicable Legal Principles

A. Uninsured Motorist Arbitrations

Insurance Code section 11580.2 governs uninsured and 

underinsured motorist coverage.

3 Subdivision (a) requires all 

automobile insurance policies in California, which cover bodily 

injury liability, to include insurance for amounts the insured is 

“legally entitled to recover as damages for bodily injury or 

wrongful death from the owner or operator of an uninsured motor 

vehicle.” 

The requirement for arbitration of uninsured motorist 

claims is contained in subdivision (f), which provides in pertinent 

part, “the determination as to whether the insured shall be 

legally entitled to recover damages, and if so entitled, the amount 

thereof, shall be made by agreement between the insured and the 

insurer or, in the event of disagreement, by arbitration.” (Ins. 

Code, § 11580.2, subd. (f).) Thus, the statute requires arbitration 

of two issues only: (1) whether the insured is entitled to recover 

against the uninsured motorist and (2) if so, the amount of 

damages. “In this context, the term ‘damages’ refers to the 

amount of damages the insured is entitled to recover from the 

underinsured motorist; ‘it does not include determination of the 

extent of coverage and the amount of money the insurance 

company is obligated to pay the insured.’” (Weinberg v. Safeco 

Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1082 

(Weinberg), italics omitted, disapproved on another ground in 

Barnett v. First National Ins. Co. of America (2010) 184 

3 We use these terms interchangeably for the purposes of 

this appeal.
7

Cal.App.4th 1454; see also Storm v. Standard Fire Insurance 

Company (2020) 52 Cal.App.5th 636, 643 (Storm) [“absent 

language in the insurance agreement expanding the issues to be 

arbitrated [citation], underinsured motorist arbitrations 

contemplate only two issues”].) “While the parties voluntarily 

may submit to arbitration issues other than those required by 

statute and the policy, ‘the courts will not infer a voluntary 

submission of a nonstatutory issue in the absence of a clear 

showing that the parties so intended, either by actual litigation 

or argument of the issue . . . or by some other unambiguous 

conduct.’” (Weinberg, supra, 114 Cal.App.4th at p. 1082, quoting 

Furlough v. Transamerica Ins. Co. (1988) 203 Cal.App.3d 40, 45–

46.) 

Insurance Code section 11580.2 also adopts the entire Civil 

Discovery Act. “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, if any,” subject to certain enumerated limitations. 

(Ins. Code, § 11580.2, subd. (f).)

B. Standard of Review

A court’s review of an arbitration award is expressly 

limited to the statutory grounds for vacating an award under 

section 1286.2 or correcting an award under section 1286.6. 

(Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 33.) Here, the 

trial court vacated the fee award pursuant to section 1286.2, 

subdivision (a)(4), which provides that the trial court shall vacate 
8

the award if it determines that “[t]he arbitrator[ ] exceeded [his] 

powers and the award cannot be corrected without affecting the 

merits of the decision upon the controversy submitted.” As 

relevant here, an arbitrator exceeds his powers when he acts in a 

manner not authorized by contract or by law. (Jordan v. 

Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443.)

On appeal from an order vacating an arbitration award, we 

review the trial court’s order under a de novo standard. (Malek v. 

Blue Cross of California (2004) 121 Cal.App.4th 44, 55; Haworth 

v. Superior Court (2010) 50 Cal.4th 372, 383 [de novo standard 

applies to claim that arbitrator exceeded his or her powers].) We 

give substantial deference to the arbitrator’s own assessment of 

the contractual scope of his powers. (See Advanced Micro 

Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 372.)

II. Analysis

We first turn to appellant’s contention that the language of 

the arbitration agreement allowed appellant to bring his motion 

for costs of proof before the arbitrator. Notably, the language of 

the agreement tracked the limited scope of arbitrable issues set 

out in Insurance Code section 11580.2, subdivision (f)—the 

agreement expressly stated that disagreements regarding 

whether the insured “is legally entitled to recover damages from 

an Uninsured Motorist or the amount of such damages” were 

subject to arbitration. On the other hand, “[a]ll other issues 

between [insurer] and . . . insured, including the existence or 

limits of coverage, may not be decided by the Arbitrator, but must 

be decided by a Court of competent jurisdiction.”

We interpret the policy based on well-established rules of 

contract interpretation, giving effect to the “mutual intention” of 

the parties at the time the contract was formed. (Civ. Code, 
9

§ 1636.) “Such intent is to be inferred, if possible, solely from the 

written provisions of the contract. (Id., § 1639.) The ‘clear and 

explicit’ meaning of these provisions, interpreted in their 

‘ordinary and popular sense,’ unless ‘used by the parties in a 

technical sense or a special meaning is given to them by usage’ 

(id., § 1644), controls judicial interpretation. (Id., § 1638.)’” 

(Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania

(2010) 50 Cal.4th 1370, 1378.) Here, the contract expressly limits 

arbitration to two specific issues: whether appellant is entitled to 

recover damages from the uninsured motorist, and the amount of 

those damages. We will not read into the contract a term about 

which it is silent, such as an intent for the arbitrator to handle 

discovery disputes. (See The Ratcliff Architects v. Vanir 

Construction Management, Inc. (2001) 88 Cal.App.4th 595, 602; 

Civ. Code, § 1641 [“The whole of a contract is to be taken 

together, so as to give effect to every part, if reasonably 

practicable, each clause helping to interpret the other.”].)

A different panel of this court reached the same conclusion 

under similar circumstances in Storm, supra, 52 Cal.App.5th 636. 

There, the plaintiff in an underinsured motorist arbitration 

sought an award before the trial court of arbitration costs under 

section 998 and post-arbitration costs under section 1293.2. (Id. 

at p. 640.) As relevant here, the appellate court rejected the 

insurer’s argument that the plaintiff was required to seek costs 

from the arbitrator in the first instance. The court found that the 

language of the insurance policy “strictly limited the decisional 

authority of the arbitrator to two issues—Storm’s entitlement to 

damages, and the amount thereof. It did not give the arbitrator 

the power to award costs.” (Ibid.) Thus, the plaintiff was “not 

required to request those costs from the arbitrator, and the 
10

proper forum to hear her request is the trial court that confirmed 

the arbitration award.” (Id. at p. 648.) The court distinguished 

Heimlich v. Shivji (2019) 7 Cal.5th 350, 358, in which the “broad” 

agreement committed “the parties to arbitrate ‘all disputes or 

claims of any nature whatsoever,’” and therefore meant that the 

plaintiff was required to request costs from the arbitrator. (See 

Storm, supra, 52 Cal.App.5th at p. 647; see also Weinberg, supra, 

114 Cal.App.4th at p. 1082 [when insurance agreement restates

Insurance Code section 11580.2’s statutory language, 

“‘arbitration is limited to issues relating to liability of the 

uninsured motorist to the insured’”].)

Appellant points to the language in the agreement that the 

parties’ issues shall be submitted to an arbitrator “in accordance 

with the law of California.” He contends that this clause defined 

the scope of the arbitrator’s powers broadly under California law 

and therefore gave the arbitrator “the authority to address and 

redress all discovery matters” related to the arbitration. We 

reject this interpretation as inconsistent with the arbitration 

provision as a whole and the rules of contract interpretation.

“‘The whole of a contract is to be taken together, so as to 

give effect to every part, if reasonably practicable, each clause 

helping to interpret the other.’” (Civ. Code, § 1641.) Thus, we 

must “‘interpret contractual language in a manner which gives 

force and effect to every provision,’ and avoid constructions which 

would render any of its provisions or words ‘surplusage.’ Put 

simply, ‘[a] contract term should not be construed to render some 

of its provisions meaningless or irrelevant.’” (In re Marriage of 

Nassimi (2016) 3 Cal.App.5th 667, 688; see also Civ. Code, 

§§ 1641, 1643; Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 

765 [“When reasonably practical, contracts are to be interpreted 
11

in a manner that makes them reasonable and capable of being 

carried into effect, and that is consistent with the parties’ 

intent.”].) Under appellant’s construction, the phrase invoking 

California law would substantially broaden the scope of the 

arbitrator’s authority, failing to give effect to every part of the 

contract and rendering meaningless the provisions limiting the 

scope of the arbitration in accordance with Insurance Code 

section 11580.2. We decline to read the contract in this manner. 

Although generally we defer to the arbitrator’s interpretation of 

the contract language regarding the scope of his powers, we note 

that the arbitrator found the policy language “somewhat 

ambiguous” and assessed that his determination “could go either 

way.” Given that the arbitrator did not provide a clear 

assessment of the contractual language and in light of the 

express policy language mirroring the statutory scope of 

authority set forth in Insurance Code section 11580.2, we 

conclude that the trial court did not err in vacating the 

arbitrator’s determination.

Further, we are not persuaded by appellant’s argument 

that limiting the arbitrator’s powers to the narrow scope 

expressly set forth in the agreement would violate public policy. 

Appellant contends that interpreting the contract to preclude the 

arbitrator from determining discovery matters would deny him 

his right to recover costs of proof and therefore circumvent the 

“substantive law of this State.” By interpreting the parties’ 

agreement to limit the scope of the arbitrator’s powers, we do not 

foreclose appellant’s ability to seek costs of proof. However, he 

must seek them before the trial court.

Our conclusion that the trial court was the appropriate 

forum for appellant’s motion for costs of proof is further 
12

supported by our sister court’s decision in Miranda, supra, 117 

Cal.App.4th 913. In Miranda, the plaintiff demanded arbitration 

of her underinsured motorist claim against her insurer. (Id. at p. 

917.) The insurer commenced discovery, but Miranda refused to 

comply with the discovery demands and subsequent court orders, 

contending that the court lacked jurisdiction over her. The court 

granted the insurer’s motion for terminating sanctions. (Id. at 

pp. 918-919.) 

On appeal, Miranda argued that the court lacked subject 

matter jurisdiction to enter discovery orders and to dismiss the 

arbitration; instead, she asserted that only the arbitrator had 

power to rule on “arbitration-related discovery.” (Miranda, 

supra, at p. 920.) The appellate court analyzed Insurance Code 

section 11580.2 and its interplay with the general law governing 

contractual arbitrations. In particular, the court noted 

differences between the general laws for discovery in contractual 

arbitrations and the specific provisions of Insurance Code section 

11580.2 governing uninsured motorist claims, including that in 

the latter, discovery may be commenced before and after the 

commencement of arbitration. (Id. at p. 923, comparing 

§ 1283.05, subd. (a) with Ins. Code, § 11580.2, subd. (f).) The 

court also noted that “in contractual arbitrations, the arbitrator 

has the power to ‘enforce the rights, remedies, procedures, duties, 

liabilities, and obligations of discovery’” (ibid., quoting § 1283.05, 

subd. (b)), while in uninsured motorist arbitrations, the statute 

provided that “all rights, remedies, obligations, liabilities and 

procedures set forth in [Title 4 of the Civil Discovery Act] shall be 

available to both the insured and the insurer. . . . [¶] [W]henever

. . . provision is made for application to the court or obtaining 

leave of court or approval by the court, the court that shall have 
13

jurisdiction for the purposes of this section shall be the superior 

court of the State of California.” (Ibid., quoting Ins. Code, § 

11580.2, subd. (f)(1).)

The Miranda court concluded that it could “harmonize 

these conflicting provisions by reading the discovery provisions 

governing uninsured motorist arbitrations as an exception to the 

discovery provisions governing contractual arbitrations 

generally.” (Miranda, supra, 117 Cal.App.4th at p. 924.) As 

such, the court held that the trial court “had the power to rule on 

the discovery dispute. And because we conclude the Legislature 

could not have intended the arbitrator and the court to possess 

concurrent power, the uninsured motorist law grants the superior 

court the exclusive jurisdiction to hear discovery matters arising 

under uninsured motorist arbitrations.” (Id. at p. 926; see also 

Menchaca v. Farmers Insurance Exchange (1976) 59 Cal.App.3d 

117, 124 [Insurance Code section 11580.2, subdivision (f) “also 

enables the parties to utilize the deposition and discovery 

provisions of the Code of Civil Procedure [and] the superior court 

to have jurisdiction over those matters.”].)

Appellant contends that the applicable holding in Miranda

was dicta. We disagree. As detailed above, at issue in Miranda

was whether the arbitrator or the court had jurisdiction to hear 

discovery disputes, and to issue discovery sanctions, related to 

the uninsured motorist arbitration. The court’s analysis of the 

relevant statutory framework and conclusion that the superior 

court had jurisdiction was therefore necessary to its decision and 

squarely on point. (See Fireman’s Fund Ins. Co. v. Maryland 

Cas. Co. (1998) 65 Cal.App.4th 1279, 1301[court must “read the 

language of an opinion in the light of its facts and the issues

raised, in order to determine which statements of law were 
14

necessary to the decision, . . . and which were general 

observations unnecessary to the decision,” and therefore dicta].)

In any event, we find the analysis in Miranda persuasive. 

The cases cited by appellant do not disturb the conclusion that 

the arbitrator lacked authority to rule on appellant’s discovery 

motion. Appellant cites Pilimai v. Farmers Ins. Exchange Co.

(2006) 39 Cal.4th 133, 141, for example, for the general 

proposition that uninsured motorist arbitrations are a form of 

contractual arbitration governed by the California Arbitration 

Act. Appellant’s reliance on Berglund v. Arthroscopic & Laser 

Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528 is also 

misplaced, as that case did not involve an uninsured motorist 

arbitration, but examined an arbitrator’s power to enforce 

discovery in a contractual arbitration related to medical 

treatment. (Id. at p. 535.)

Thus, we conclude that the trial court did not err in 

vacating the arbitrator’s award of costs of proof to appellant, as 

the award was in excess of the arbitrator’s powers under the 

parties’ arbitration agreement.4 We therefore affirm, without 

prejudice to appellant bringing a proper motion for costs in the 

trial court. We express no opinion as to the outcome of any such 

motion.

4 We do not reach respondent’s alternative argument that 

the award should be vacated because the language of the 

insurance policy provides for equal division of costs and fees and 

therefore bars recovery of costs of proof. 
15

DISPOSITION

The judgment is affirmed. Respondent is entitled to its 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, P. J.

ZUKIN, J.