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1 J. Edward Kerley (175695)
Dylan L. Schaffer (153612)
2 Nicholas J. Peterson (287902)
Kerley Schaffer LLP 2/8/2021
3 1939 Harrison Street, #500
Oakland, California 94612
4 Telephone: (510) 379-5801
Facsimile: (510) 228-0350
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Attorneys for Plaintiff
6 Cheryl Robbins
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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FOR THE COUNTY OF BUTTE, UNLIMITED JURISDICTION
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Cheryl Robbins, an individual, Case No. 20CV01703
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Plaintiff REPLY TO DEFENDANT FIRE
13 INSURANCE EXCHANGE’S
v. MEMORANDUM OF POINTS AND
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AUTHORITIES IN SUPPORT OF
15 CONDITIONAL OPPOSITION TO
Fire Insurance Exchange, a corporation,
PLAINTIFF’S MOTION TO COMPEL
Farmers Insurance Exchange, an
16 INSURANCE APPRAISAL PURSUANT
insurance exchange,
TO INSURANCE CODE SECTION 2071
17 and Does 1 through 10,
18 Date: Wednesday, February 17, 2021
Defendants. Time: 9:00 a.m.
19 Dept.: 1
20 Action Filed: August 27, 2020
Trial Date: None Set
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Robbins Reply Re: Motion to Compel Insurance
Appraisal Pursuant to Ins. Code §2071
1 I. INTRODUCTION
2 Code of Civil Procedure §1281.2, which applies to appraisals, is clear that where there is
3 an agreement to arbitrate, the Court shall order the parties to complete the arbitration without
4 delving into the merits.1 Section 1281.2 does contain some exceptions, but Fire Insurance
5 Exchange (“Farmers”) has failed to submit any evidence to satisfy any of the exceptions
6 enumerated in section 1281.2. Farmers’ argument that the Court must make an inquiry into
7 specifics to determine whether Ms. Robbins’ demand is meritorious, say e.g., the different values
8 for repair of the structure or the damaged personal property, as a condition precedent to issuing
9 an order is legally unsupported and contrary to CCP §1281.2 and Insurance Code §2071.
10 Under section 1281.2, it is clear the Court is precluded from inquiring into the merits of
11 the controversy. Therefore, Ms. Robbins requests that the Court order the parties to go forth with
12 the appraisal now, rather than staying it or ordering a further fact hearing on the merits of the
13 underlying valuation disputes between the parties.
14 II. ARGUMENT
15 I. Farmers admits there is an enforceable agreement to appraise.
16 In opposing Ms. Robbins’ motion, Farmers has admitted the key facts necessary to
17 compel appraisal. First, Farmers admits that its insurance policy and Insurance Code §2071
18 provide for resolution of the value of the loss by appraisal. Farmers also admits that it agreed to
19 appraisal on January 17, 2020 and further admits that it nominated Sarah Hammil to serve as
20 Farmers’ appraiser.2
21 Farmers’ objections that Ms. Robbins memorandum incorrectly refers to a declaration by
22 Mr. Skipton rather than Ms. Robbins declaration is true but immaterial in light of these
23 admissions. The very exhibits to which Ms. Robbins refers in her declaration that Farmers
24 complains were not attached to her declaration were submitted by Mr. Olmos in his declaration
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Kirkwood v. California State Automobile Ass’n. Inter-Ins. Bureau, 122 Cal.Rptr.3d 480, 485,
(2011).
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Exhibit B to Declaration of Louie Olmos.
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Robbins Reply Re: Motion to Compel Insurance
Appraisal Pursuant to Ins. Code §2071
1 in support of Farmers’ opposition. Based on these admissions, the Court’s fact finding is
2 complete under section 1281.2 to compel the parties to complete the appraisal that was started.
3 Farmers does not dispute this motion to compel appraisal is governed by CCP §1281.2.
4 The statute provides that a party seeking to compel arbitration bears the simple burden of
5 proving the existence of a valid and enforceable arbitration agreement by a preponderance of the
6 evidence.3 The petitioner need only offer prima facie evidence of an agreement to arbitrate.4 A
7 motion need not attach the agreement—it can simply quote the relevant language.5
8 And while CCP §1281.2 provides exceptions, they generally concern waiver, rescission, pending
9 third-party action with potential for conflicting ruling, or when the moving party is a depository
10 institution. Farmers does not argue any of those exception apply here.
11 The statute provides in relevant part:
12 1281.2. On petition of a party to an arbitration agreement alleging the existence
of a written agreement to arbitrate a controversy and that a party to the
13 agreement refuses to arbitrate that controversy, the court shall order the
petitioner and the respondent to arbitrate the controversy if it determines that an
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agreement to arbitrate the controversy exists, unless it determines that:
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(a) The right to compel arbitration has been waived by the petitioner; or
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(b) Grounds exist for rescission of the agreement.
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(c) A party to the arbitration agreement is also a party to a pending court action
18 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
19 common issue of law or fact. . . .
20 (d) The petitioner is a state or federally chartered depository institution . . .
21 If the court determines that a written agreement to arbitrate a controversy exists,
an order to arbitrate that controversy may not be refused on the ground that the
22 petitioner’s contentions lack substantive merit.
23 If the court determines that there are other issues between the petitioner and the
respondent which are not subject to arbitration and which are the subject of a
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pending action or special proceeding between the petitioner and the respondent
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26 Rosenthal v. Great Western Financial Securities Corp., 14 Cal.4th 394, 413–14 (1996).
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Esparza v. Sand & Sea, Inc., 2 Cal.App.5th 781, 787 (2016).
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Condee v. Longwood Management Corp., 88 Cal.App.4th 215, 218 (2001).
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Robbins Reply Re: Motion to Compel Insurance
Appraisal Pursuant to Ins. Code §2071
and that a determination of such issues may make the arbitration unnecessary, the
1 court may delay its order to arbitrate until the determination of such other issues
or until such earlier time as the court specifies. . .
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3 II. The Arbitration Act precludes the sort of factual inquiry Farmers invites in its
opposition.
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Farmers proposes a continuance to understand the specific disputes and items of property
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damage for valuation. The Court need not reach those issues because its role here is limited to
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finding whether an agreement exists. Faced with a request to compel arbitration, the Court’s
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narrow role is to determine simply whether an agreement between the parties to arbitrate a
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controversy exists. If it does—and there can be no doubt it does here, as Farmers has conceded—
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the Court “shall order petitioner and respondent to arbitrate.”6
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Since none of the exceptions in Section 1281.2 apply, and since Farmers never argues
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otherwise, the Court cannot and should not spend its time on a further hearing on evidence as to
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the merits of the appraisal request. Section 1281.2, as noted above, specifically states that: “If the
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court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate
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that controversy may not be refused on the ground that the petitioner's contentions lack
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substantive merit.”7
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An inquiry into the merits of Ms. Robbins’ demand for appraisal serves no purpose.
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Farmers’ opposition goes to considerable lengths to inform the Court that its claims handling and
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payment of the claim were reasonable, but that is beyond the Court’s purview in this proceeding.
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Obviously, Ms. Robbins disagrees, hence her filing a bad faith suit alleging Farmers low-balled
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the settlement of her claim.
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Under the Insurance Code, there is no precondition precedent permitting an insurer to halt
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an appraisal simply because the company would like more information. Appraisals are informal
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proceedings. All fire insurance policies in California must meet the minimum requirements of
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Insurance Code §20718 which sets out the right to appraisal. Insurance Code §2071 provides in
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26 CCP §1281.2 (emphasis added).
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CCP §1281.2 (emphasis added).
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California Fair Plan Assn. v. Garnes, 11 Cal.App.5th 1276, 1290 (2017)
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Robbins Reply Re: Motion to Compel Insurance
Appraisal Pursuant to Ins. Code §2071
1 relevant part on appraisal that:
2 In case the insured and this company shall fail to agree as to the actual cash
value or the amount of loss, then, on the written request of either, each shall
3 select a competent and disinterested appraiser and notify the other of the
appraiser selected within 20 days of the request. Where the request is accepted,
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the appraisers shall first select a competent and disinterested umpire; and failing
5 for 15 days to agree upon the umpire, then, on request of the insured or this
company, the umpire shall be selected by a judge of a court of record in the state
6 in which the property covered is located. Appraisal proceedings are informal
unless the insured and this company mutually agree otherwise. For purposes of
7 this section, “informal” means that no formal discovery shall be conducted,
8 including depositions, interrogatories, requests for admission, or other forms of
formal civil discovery, no formal rules of evidence shall be applied, and no court
9 reporter shall be used for the proceedings. The appraisers shall then appraise the
loss, stating separately actual cash value and loss to each item; and, failing to
10 agree, shall submit their differences, only, to the umpire. . .
11 The Legislature set up appraisal to be a speedy and informal process for resolution of the
12 claim value. Obviously, by demanding appraisal and filing suit, Ms. Robbins does not agree with
13 Farmers’ valuation. No rational policyholder would go to the time and expense of hiring an
14 appraiser and demanding appraisal where they agreed with the insurer’s valuation.
15 Nothing in the statutory language of Section 2071 requires Ms. Robbins to first provide a
16 detailed list of the disputed items or any other information. Instead, Section 2071 requires a
17 written demand and the identity of a competent and disinterested appraiser. Nothing more by
18 way of a factual showing is required under the statute. Farmers admits that the evidence is
19 undisputed that (i) Ms. Robbins made a written demand for appraisal, (ii) identified her appraiser
20 in writing, and (iii) Farmers initially accepted and named its own appraiser before refusing to
21 cooperate further. Farmers has not cited any authority interpreting Section 2071 to require Ms.
22 Robbins to do any more than she has already done.
23 No California case has come close to imposing the condition precedent Farmers seeks
24 here—one that is in conflict with Sections 1281.2 and 2071. The Court should not entertain
25 Farmers’ request to read into Sections 1281.2 and 2071 any novel, additional requirement to
26 present evidence as to the specifics of the dispute in her fire claim before ordering the parties to
27 complete the appraisal.
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Robbins Reply Re: Motion to Compel Insurance
Appraisal Pursuant to Ins. Code §2071
1 III. CONCLUSION
2 At core, Farmers is involved in a game of delay to the prejudice of Ms. Robbins. Ms.
3 Robbins opted for appraisal which allows the parties to choose appraisers and have those
4 appraisers value the loss, trade valuations, and attempt to resolve their differences quickly and
5 informally. It allows someone like Ms. Robbins to take out of the litigation the dispute as to the
6 policy benefits the insurer owes for repairs. An appraisal award must be paid within 30 days,
7 even if there is pending bad-faith litigation. Obviously, given the expected delays because of the
8 pandemic, Ms. Robbins’ right to have the loss quickly appraised is more valuable than ever.
9 Farmers has failed to supply this Court with a legal basis to refuse to compel under CCP
10 §1281.2. As such, the Court should order Farmers to have its appraiser complete the appraisal
11 without further delays.
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13 Date: February 8, 2021 Kerley Schaffer LLP
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15 J. Edward Kerley
Attorneys for Plaintiff
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Robbins Reply Re: Motion to Compel Insurance
Appraisal Pursuant to Ins. Code §2071
1 PROOF OF SERVICE
Robbins v. Fire
2 Superior Court of Butte County
Case No. 20CV01703
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I declare that I am over the age of 18 years and not a party to this action. My business
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address is 1939 Harrison Street, #500, Oakland, CA 94612. On February 8, 2021, I served the
5 following on the interested parties in this action:
6 PLAINTIFF’S REPLY TO FIRE INSURANCE EXCHANGE’S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF CONDITIONAL OPPOSITION TO PLAINTIFF’S
7 MOTION TO COMPEL APPRAISAL
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Julie E. Hayashida
9 jhayashida@bhc.law
kkalkhorst@bhc.law
10 BHC LAW GROUP LLP
5900 Hollis Street, Suite O
11 Emeryville, CA 94608
12 Telephone: (510) 658-3600
Facsimile: (510) 658-1151
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Attorneys for Defendant Fire Insurance Exchange
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☐ MAIL: By placing such documents(s) in a sealed envelope, with postage prepaid for
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first class mail, for collection and mailing at Oakland California following ordinary business
16 practice for deposit with United States Postal Service.
☐ FAX: By causing to be transmitted the documents by use of fax machine telephone
17 number (510)228-0350 to the parties at the facsimile numbers listed on the service list above.
18 The fax machine used complies with California Rule of Court 2.301. The transmission was
reported as complete and no error was reported by the machine. I caused the transmitting
19 machine to print a record of the transmission, a copy of which is attached to this declaration.
☒ E-MAIL: By electronic mail to the addresses noted above.
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☐ FEDEX: By placing for overnight delivery such documents(s) in a facility or box that is
21 regularly maintained by FedEx.
22 ☐ HAND DELIVERY: Caused to be hand delivered.
I declare under penalty of perjury under the laws of the State of California and the United
23 States that the foregoing is true, and if called as a witness I could testify competently thereto. This
declaration was executed February 8, 2021, at Oakland, California.
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Noah Perry
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