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Filed 10/16/13 Thompson v. Torres CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 THREE 

FERNANDER THOMPSON, 

 Plaintiff and Appellant, 

v. 

MARIO TORRES et al., 

 Defendants and Respondents. 

 A137482 

 (Alameda County 

 Super. Ct. No. RG09456222) 

 Plaintiff Fernander Thompson, appearing in propria persona, appeals from the 

denial of his petition to compel arbitration of his uninsured motorist claim against his 

automobile insurance carrier, respondent State Farm Insurance Company (State Farm). 

We find no abuse of discretion in the trial court’s decision and thus shall affirm the order. 

Background

 Plaintiff was injured in 2008 while a passenger on an Alameda-Contra Costa 

County Transit District (AC Transit) bus being operated by defendant Mario Torres. On 

April 19, 2011, following a jury trial, judgment was entered awarding plaintiff $10,566 in 

damages ($5,566 in medical expenses and $5,000 in general damages) on his personal 

injury action against AC Transit and Torres. The judgment apportioned responsibility for 

the accident and, thus, liability for the general damages, according to the jury’s verdict in 

equal thirds between AC Transit, Torres and the unknown driver of a car involved in the 
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collision. AC Transit paid plaintiff $8,335 in satisfaction of the share of the judgment for 

which AC Transit and Torres were responsible.1 

 In January 2009, plaintiff submitted an uninsured motorist claim under his State 

Farm insurance policy. In February 2012, State Farm paid plaintiff $11,029 on the claim. 

The letter accompanying the payment stated, “Our efforts to resolve this claim through 

negotiation were not successful and appear to have reached an impasse. Under these 

circumstances, we are advancing the amount of our initial offer . . . . [¶] This payment is 

made in advance without prejudicing your right to receive a higher amount in the future 

through continuing negotiation or alternative means of resolution.” 

 On June 14, 2012, plaintiff sought leave from the court to amend his complaint in 

the personal injury action to assert an uninsured motorist claim against respondents State 

Farm and its employee, Marcie Marquez, and to compel arbitration of the new claim.2

 

The court denied the motions as untimely and without merit. 

 Plaintiff filed a timely notice of appeal from the denial of his petition to compel 

arbitration. 

Discussion 

 Plaintiff apparently believes State Farm should have paid him the full $50,000 

limit on his policy. His petition to compel was filed to force State Farm into arbitration 

to recover the additional amount he claims over and above the amount he has already 

received. His appellate briefing, however, is completely unintelligible and it is 

impossible to decipher on what grounds he asserts the trial court’s order should be 

reversed. 

 1

 AC Transit and Torres are not parties to this appeal. 

2

 Plaintiff has not asserted any individual claims against Marquez and names her 

in the petition as the “agent or representative” of State Farm. 
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 Respondents argue that the trial court did not err in denying plaintiff’s petition to 

compel.3 We agree. 

 Section 1281.2 provides in relevant part, “On petition of a party to an arbitration 

agreement alleging the existence of a written agreement to arbitrate a controversy and 

that a party thereto refuses to arbitrate such controversy, the court shall order the 

petitioner and the respondent to arbitrate the controversy if it determines that an 

agreement to arbitrate the controversy exists, unless it determines that: (a) The right to 

compel arbitration has been waived by the petitioner; or [¶] . . . [¶] (c) A party to the 

arbitration agreement is also a party to a pending court action or special proceeding with 

a third party, arising out of the same transaction or series of related transactions and there 

is a possibility of conflicting rulings on a common issue of law or fact.” We review the 

trial court decision under section 1281.2 for an abuse of discretion. (Mercury Ins. Group 

v. Superior Court (1998) 19 Cal.4th 332, 349.) 

 In Mercury Ins. Group v. Superior Court, supra, 19 Cal.4th 332 the court held that 

the trial court acted within its discretion under section 1281.2 when it denied a petition to 

compel arbitration of an uninsured motorist claim on the ground that the arbitration 

proceeding on the uninsured motorist claim and the pending personal injury action arose 

“out of the same transaction” and that compelling arbitration would give rise to “a 

possibility of conflicting rulings on a common issue of law or fact.” (Id. at p. 350.) The 

court explained that “in the contractual arbitration proceeding, the arbitrator might 

conclude that the [plaintiffs] 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 [plaintiffs] were indeed legally entitled to damages in some amount from the 

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 Respondents also seek to dismiss the appeal on the ground that plaintiff is not an 

aggrieved party and thus lacks standing to appeal. While plaintiff may have prevailed in 

the underlying litigation, he has not appealed from that judgment. He appeals the denial 

of his petition to compel arbitration and with respect to that order he is aggrieved within 

the meaning of Code of Civil Procedure section 1294, subdivision (a). 
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unidentified, and effectively uninsured, motorist, and therefore could obtain such sum 

from Mercury.” (Ibid.) 

 In this case, a final judgment has already been entered resolving the two questions 

at issue in the potential uninsured motorist arbitration proceeding: whether the insured is 

entitled to recover against the underinsured/unidentified motorist and, if so, the amount of 

the damages. (Ins. Code, § 11580.2, subd. (f); Bouton v. USAA Cas. Ins. Co. (2008) 43 

Cal.4th 1190, 1201 [Liability and damages are the only issues arbitrable under statutory 

arbitration requirement for uninsured motorist insurance coverage.].) The jury found that 

the uninsured motorist was 33.33 percent at fault in the accident and that plaintiff 

suffered $10,566 in damages. Arbitration proceedings at this point would either result in 

duplicative findings, and thus be pointless, or would result in conflicting rulings. 

Plaintiff chose to pursue these factual questions in litigation against AC Transit and 

Torres without involving State Farm. As such, he waived his right to compel arbitration 

of the identical factual issues at this late date. Accordingly, the court did not abuse its 

discretion in denying plaintiff’s petition to compel arbitration. 

Disposition 

The order denying plaintiff’s petition to compel arbitration is affirmed. 

Respondents shall recover their costs on appeal. 

 _________________________ 

 Pollak, Acting P.J. 

We concur: 

_________________________ 

Siggins, J. 

_________________________ 

Jenkins, J.