1 Filed 10/16/13 Thompson v. Torres CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, appeari ng 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 In surance 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 be ing operated by defendant Mario Torres. On April 19, 2011, following a jury trial, judgmen t 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 Trans it and Torres. The judgment apportioned resp onsibility 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 the2 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 Febr uary 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 a lternative means of resolution.” On June 14, 2012, plaintiff sought leav e from the court to am end his complaint in the personal injury action to assert an uninsured motorist claim against respondents State Farm and its employee, Marcie Marquez, a nd 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, howeve r, is completely unintelligible and it is impossible to decipher on what grounds he asserts the tria l court’s order should be
reversed.

1 AC Transit and Torres are not parties to this appeal.

2 Plaintiff has not asserted any individu al claims against Marquez and names her in the petition as the “agent or representative” of State Farm.3 Respondents argue that the trial court di d not err in denying plaintiff’s petition to compel. 3 We agree. Section 1281.2 provid es 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 su ch controversy, the court shall order the petitioner and the respondent to arbitrate th e controversy if it determines that an agreement to arbitrate the controversy exists , unless it determines that: (a) The right to compel arbitration has been wa ived 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 transacti on or series of related transactions and there is a possibility of conflicting rulings on a comm on 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 unde r section 1281.2 when it denied a petition to compel arbitration of an un insured motorist claim on the ground that the arbitration proceeding on the uninsured moto rist claim and the pending personal injury action arose
“out of the same transaction” and that co mpelling arbitration woul d 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 ar bitration proceeding, the arbitrator might conclude that the [plaintiffs] were not lega lly entitled to damages in any amount from the unidentified, and effectively uninsured, motori st, and therefore could not obtain anything from Mercury. In the pending action, howeve r, the superior court might conclude that the [plaintiffs] were indeed legally entitled to damages in some amount from the

3 Respondents also seek to dismiss the appe al 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 re spect to that order he is aggrieved within the meaning of Code of Civil Proc edure section 1294, subdivision (a).4 unidentified, and effectively uninsured, mo torist, and therefore could obtain such sum from Mercury.” ( Ibid .) In this case, a final judgment has alrea dy been entered resolv ing the two questions at issue in the potential unins ured motorist arbitration pro ceeding: whether the insured is entitled to recover against the underinsured/unide ntified 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 [Lia bility and damages are the only issu es 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 proc eedings 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 que stions in litigation ag ainst AC Transit and Torres without involving State Fa rm. 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 arb itration is affirmed. Respondents shall recover their costs on appeal.

_ ____________ ____________ Pollak, Acting P.J.

We concur:

_____________ ____________ Siggins, J.

_____________ ____________ Jenkins, J.