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Filing # 182024681 E-Filed 09/18/2023 12:35:22 PM
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT,
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CASE NO.: 23003604CA
PENNY DAVIDSON,
PLAINTIFF,
Vv.
HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY,
INC.,
DEFENDANT.
/
COMPLAINT
COMES NOW, Plaintiff, PENNY DAVIDSON (“Plaintiff”), by and through undersigned
counsel, hereby sues Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY
INSURANCE COMPANY, INC. (“Defendant’’), and in support thereof alleges:
JURISDICTION AND VENUE
1 This is an action for at least Fifty Thousand and One Dollars ($50,001.00),
exclusive of attorney fees, costs, and interest.
2 At all times material hereto, Plaintiff was and/or were the owner(s) of the property
located at 371 Blarney St., Port Charlotte, FL 33954 (the “Property”) and is otherwise sui juris.
3 At all times material hereto, Defendant was and is a corporation duly licensed to
transact business in the State of Florida and maintained agents for the transaction of its
customary business throughout the State of Florida, including Charlotte County, Florida.
4 Venue is proper in Charlotte County, Florida because the contract which forms
the subject matter of this lawsuit was executed in Charlotte County, Florida.
Page 2 of 4
THE STATEMENT OF THE FACTS
5 The “Property” suffered property damage as a result of Hurricane Ian on or
around September 28, 2022 (the “Loss”).
6. Defendant acknowledged the Loss with the claim number believed to be 928383.
7 When the Loss occurred, the Property was owned by Penny Davidson.
8 When the Loss occurred, there was in full force and effect a homeowners
insurance policy issued by Defendant (the “Policy”), associated with policy number HCPC-H03-
385308-10, wherein Defendant agreed to make payment in the event of a covered loss, risk
and/or peril, in consideration for a premium paid by Plaintiff. Policy attached as Exhibit “A.”
9. When the Loss occurred, and at the commencement of the policy period for the
Policy, Plaintiff had an insurable interest in the Property.
10. Defendant only paid $12,878.07 to Plaintiff.
11. There is coverage under the Policy for the Loss.
12. Defendant was required to make payment because the Loss occurred.
COUNT I- BREACH OF CONTRACT
13. Plaintiff incorporates in this cause of action every allegation contained in
paragraphs 1-12, as though fully set forth herein.
14. This cause of action is being brought as an alternative theory of law to the cause
of action set forth in Count II.
15. Defendant has breached the terms and conditions of the Policy by refusing to pay
and/or fully pay what is owed under the Policy in relation to the Loss.
16. Defendant’s conduct has caused Plaintiff to retain the services of the undersigned
counsel.
17. Plaintiff is entitled to attorney fees and costs.
Page 3 of 4
WHEREFORE, Plaintiff respectfully requests that the Court award Plaintiff: (1) its
damages, (2) reasonable attorney’s fees and costs, (3) pre-judgment and post-judgment interest,
and (4) any further relief deemed just and proper by the Court.
COUNT Il - DECLARATORY ACTION
18. Plaintiff incorporates in this cause of action every allegation contained in
paragraphs 1-12, as though fully set forth herein.
19, This cause of action is being brought as an alternative theory of law to the claim
set forth in Count I.
20. Although Plaintiff believes the subject claim is covered under the Policy, Plaintiff
is uncertain and in doubt as to the existence or non-existence of its right to payment under the
Policy, as well as the extent of its right to payment, and has an actual, practical and present need
for a declaration from the Court regarding the existence and extent of Plaintiff's right to payment
under the Policy.
21. Plaintiff is seeking a declaration from the Court regarding the existence or
nonexistence of its right to payment under the Policy, regarding the extent of its right to payment
under the Policy, and/or regarding any fact upon which the existence or nonexistence of its right
to payment under the Policy depends, in conformity with the holding of the Supreme Court of
Florida in Higgins v. State Farm Ins. Co., 894 So. 2d 5 (Fla. 2004).
22. There is an actual, bona-fide controversy between Plaintiff and Defendant which
requires judicial interpretation of the Policy to determine the existence and extent of Plaintiffs
right to payment under the Policy as a result of the subject claim.
23. The purpose of this declaratory action is to obtain a judicial interpretation of the
Policy, as it relates to the facts involved herein, determining the existence and extent of
Plaintiff's right to payment under the Policy. Without a declaration from the court regarding the
Page 4 of 4
existence and extent of Plaintiff's right to payment under the Policy, Plaintiff is unable to obtain
payment in accordance with the Policy.
24. Plaintiff is not seeking mere legal advice from the Court, nor is Plaintiff seeking
an answer to questions propounded by mere curiosity.
25. Defendant’s conduct has caused Plaintiff to retain the services of the undersigned
counsel.
26. Plaintiff is entitled to attorney fees and costs.
WHEREFORE, Plaintiff respectfully requests that the Court issue a declaratory judgment
establishing the existence and extent of Plaintiffs right to payment, and awarding Plaintiff
reasonable attorney’s fees and costs, and any further relief deemed just and proper by the Court.
DEMAND is hereby made for trial by jury of all issues so triable, as a matter of right.
DATED this September 18, 2023.
Respectfully Submitted,
By: /s/ Michael Katz
Mordechai L. Breier, Esq.
Florida Bar No.: 0088186
Michael Katz, Esq.
Florida Bar No.: 1024707
CONSUMER LAW OFFICE, P.A.
16801 NE 6th Ave.
North Miami Beach, FL 33162
Phone: (305) 940-0924 | Fax: (305) 602-8204
E-service: service@consumerlawoffice.com
Email: mkatz@consumerlawoffice.com
EXHIBIT “A”
Home
Hi OMEOWNERS CHOICE
Property & CASUALTY Policy Number: HCPC-HO3-385308-10
InsurANCcE Company, INC.
PO Box 23177, Tampa, FL 33623
PENNY DAVIDSON
371 BLARNEY ST
PORT CHARLOTTE, FL 33954
PAYMENT INVOICE ENCLOSED - - PLEASE REVIEW BACK PAGE
or
Homeowners Choice
Property & Casualty Insurance Company, Inc.~
Policy Number: HCPC-HO3-385308-10
PENNY DAVIDSON
371 BLARNEY ST
PORT CHARLOTTE, FL 33954
Dear Policyholder:
Thank you for allowing Homeowners Choice Property & Casualty Insurance Company, Inc., to
assist you with your insurance needs. Your policy and other important documents are enclosed.
If your insurance premium is not held in escrow through your mortgage company, your invoice
can be found on the back page of this packet. Our privacy policy is on the reverse side of this
letter. Please read each document carefully.
Homeowners Choice is a Florida-based insurance company which provides property and casualty
insurance to Florida property owners. We have been awarded a Financial Stability Rating of “A”
(Exceptional) by Demotech, Inc., a leading actuarial and financial analysis firm. We invite you to
learn more about Homeowners Choice by visiting our web site at www.hcpci.com.
Your insurance agent should be your front-line policy advisor. If you have specific coverage
questions regarding your policy, please contact your agent. For questions about Homeowners
Choice, please call our customer service department at (888) 210-5235.
We know you have choices when selecting homeowners insurance. We value the trust you have
placed in us and look forward to remaining your insurance company of choice.
Respectfully,
HCPCI Marketing Department
Enclosures
CL7.15
HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE CO., INC.
P.O. BOX 23177 * TAMPA, FL 33623
PHONE: 888-210-5235 * FAX: 813-865-0170
HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC.
PRIVACY POLICY
Your Privac y is Our Concern
Homeowners Choice Property & Casualty Insurance Company, Inc. and its affiliates strive to provide high quality insurance products and excellent
customer service. In doing so, we will obtain and develop personal information about you and your family. We consider this information confidential
and have procedures in place to protect this information against unlawful use and disclosure. This Privacy Policy describes how we obtain and use
information about you, and how we protect that information. It applies both to current and former policyholders.
Our Basic Privacy Principles
We do not sell policyholder information,
We do not disclose policyholder information except as necessary or appropriate to provide insurance products and services, and as otherwise
allowed or required by law.
When we share policyholder information with nonaffiliated vendors and service providers, we contractually require them to maintain
confidentiality and to use the information solely for the purposes for which we provide the information.
We maintain procedural, technical and physical safeguards to protect policyholder information.
Sources of Personal Information
We may obtain personal information about you from several sources. We obtain most of our information directly from you or through your agent, on
insurance applications and forms you submit and other interactions you have with us. We also will learn information about you from servicing your
policy. We might also receive information from outside vendors that furnish us with information relating to your eligibility for insurance, your existing
or prospective policy, and your claims. These vendors may include consumer reporting agencies, home inspection companies, statistical or reporting
bureaus in addition to other sources.
If you visit an Internet website that we maintain, we might obtain information about you that will enable us to identify you as a user, including your
name, a user name, a password, and password reminders. We also might obtain information about your web browser, operating system and similar
information to improve the performance and operation of our site.
Our Use of Your Personal Information
We will not sell your personal information to anyone, except to someone purchasing all or a portion of our business. We do not share any of the personal
information we collect except among members of our corporate group (i.e. affiliates), non-affiliated vendors and service providers, joint marketers,
agents and as permitted or required by law.
Typically we share information only to the extent necessary or appropriate to offer and provide our insurance products and services to you and to
improve our products and services, as well as to effect, admi ster or enforce transactions that you request. For example, we might provide information
about you and your policy to a company that prints and mails our insurance policies or to a company that adjusts any claims you may have. We might
also share any personal information we collect with companies that perform marketing services on our behalf and other financial institutions with
which we have joint marketing agreements. We might share information with your insurance agent.
When we share policyholder information with nonaffiliated parties, we contractually require them to maintain confidentiality and to use the
information solely for purposes for which we provide the information.
We also are permitted or required to share information with certain other parties listed in federal law and state rules, such as insurance advisory
organizations, rating agencies, regulatory authorities, consumer reporting agencies and attorneys and accountants.
How We Protect Your Personal Information
We maintain physical, electronic, and procedural safeguards to ensure the confidentiality of the personal information we obtain about you. We restrict
access to your personal information to those employees who need to know that information to provide services to you.
Affiliates
This notice describes the practices and procedures of Homeowners Choice Property & Casualty Insurance Company, Inc. and its affiliates, HCI
Group, Inc., Homeowners Choice Managers, Inc., Southern Administration, Inc., and Claddaugh Casualty Insurance Company Ltd.
This summary of our practices is furnished for your information. No action is required by you upon receipt of this notice.
If you have any questions, you may contact us at:
Homeowners Choice Property & Casualty Insurance Company, Inc.
3802 Coconut Palm Drive, Tampa, FL 33619
Attention: General Counsel
Toll free (888) 210-5235
(08 21)
e
Homeowners Choice
Property & Casualty Insurance Company, Ine.
NOTICE OF CHANGE IN POLICY TERMS
We are sending you this notice to inform you about important changes to your policy.
The descriptions in this notice are intended to be for informational purposes only. Please review your
policy and endorsement language carefully. In the event of a conflict, the language in your policy and
its endorsements will be controlling.
. “Personal injury” has been defined.
. Property Not Covered has been expanded to include drones and water or steam.
Collapse under Section I - Property Coverages — Additional Coverages has been clarified. Coverage
does not apply to collapse of plumbing due to age, deterioration or maintenance.
Section I - Perils Insured Against has been updated to further describe “collapse” and accidental
discharge of water or steam. Coverage has been clarified to explain the cost for the tear out and
repair is limited to only that part necessary to provide access to the part of the system or appliance
that caused the covered loss.
Section I - Exclusions — Constant or repeated seepage has been clarified.
Section II - Exclusions — Personal Liability and Medical Payments. Drones are now included under
aircraft. “Personal injury” has also been added.
Section I & II - Conditions — Cancellation and nonrenewal provisions have been updated clarifying
when policies can be cancelled or nonrenewed.
REASONABLE EMERGENCY MEASURES and LOSS REPORTING:
Section I - Property Coverages — Reasonable Repairs has been updated to “Reasonable Emergency Measures”.
Necessary measures taken solely to protect covered property from further damage may not exceed the greater of
$3,000 or 1% of the Coverage A limit unless approval is received in advance from Homeowners Choice.
Section I - Conditions — Duties After Loss has been updated regarding coverage for permanent repairs. Except for
Reasonable Emergency Measures, there is no coverage for repairs that begin before the earlier of:
1) 72 hours after Homeowners Choice is notified of the loss;
2) The time of loss inspection by Homeowners Choice; or
3) The time of other approval by Homeowners Choice.
To the degree reasonably possible, damaged property must be retained for us to inspect. If failure to comply with
Duties is prejudicial to us, we have no duty to provide coverage.
Changes to your policy which have been mandated by the Florida Legislature or which correct prior
typographical errors are not included in this notice. Please read your policy, declaration pages and related
documents for complete descriptions and details.
Please contact your agent if you have any questions about these policy-related changes. You may, of
course, call us directly at (888) 210-5235.
Thank you for being a valued customer. We appreciate your business!
HC NOC 04 16 (HO3 02 17) Page 1 of 1
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Co
Homeowners Choice
Property & Casualty Insurance Company, Inc.
Homeowners 3
Policy
3802 Coconut Palm Dr.
Tampa, FL 33619
For Customer Service or to Report a Claim,
Please Call (888) 210-5235
HC HO3J 10 21 Page 1 of 2
KREKKRREEERERERERERERER I M PO RTANT N OTICE RREKKERERERERERERERERERER
This policy is issued on behalf of Homeowners Choice Property & Casualty Insurance Company, Inc. (the Company) and
by acceptance of this policy, you agree that:
1 The statements in the application are your representations;
2. This policy is issued in reliance upon the truth of those representations; and
3. This policy embodies all agreements existing between you and Homeowners Choice Property & Casualty
Insurance Company, Inc., or any of our Producers relating to this policy.
IN WITNESS WHERE OF: In consideration of your paid premium, the Company has caused this policy to be executed and
attested, but this policy shall not be valid unless countersigned by a duly authorized representative of the Company.
KLIS,
Kenneth Starling, CPCU, Vice President - Underwriting
Homeowners Choice Property & Casualty Insurance Company, Inc.
Page 2 of 2 HC HO3J 10 21
For policy questions, contact your agent at: (941) 464-7992
Homeowners Choice For Claims please call: (866) 324-3138
Property & Casualty Insurance Company, Inc. For Customer Service please call: (888) 210-5235
Homeowners Choice Property & Casualty Insurance Company, Inc.
Homeowners HO3 Policy Declarations - Renewal
Named Insured and Location of Residence Premises:
Mailing Address:
Policy Number: HCPC-HO3-385308-10
PENNY DAVIDSON 371 BLARNEY ST
371 BLARNEY ST PORT CHARLOTTE, FL 33954 Renewal
PORT CHARLOTTE, FL 33954 Policy Effective Date: Mar 30, 2022 12:01AM
Policy Expiration Date: Mar 30, 2023 12:01AM
County: CHARLOTTE
COVERAGE IS PROVIDED WHERE A PREMIUM OR LIMIT OF LIABILITY IS SHOWN FOR THE COVERAGE
Coverages Limit of Liability Annual Premium Forms, Notices and Endorsements:
Section | HC HO3J 10 21 HO 04 96 04 91
A. Dwelling $326,000 $4,001 OIR-B1-1670 (1-1-06)
HC OC HO3 08 16
B. Other Structures $6,520 Included OIR-B1-1655 (Rev. 02/10)
C. Personal Property $99,430 (815) HC WL 05 13
Included HC 09 DN 12 13
D. Loss of Use $32,600
HC HO OL 12 17
Section Il HC HO3 TOC 01 20
E. Personal Liability $300,000 $18 HC HO3 01 20
HC CGCC HO3 03 13
F. Medical Payments $2,000 Included
HC 24 07 08
Endorsement Premium Total (See Details, P.2) $0 Rating Information:
Credits and Charges: Territory: 711
BCEG: 99
Coverage A Increased due to an Inflation Factor Fire Alarm: No.
Building Code Effectiveness Grading Adjustment Burglar Alarm: No
Windstorm Mitigation Credit Sprinkler:
Modified Deductibles Adjustment Construction:
Year Built: 1990
Protection Class:
Wind Mitigation Factor: 410 (12505)
Underwriting Surcharges (See Details, P.2) $619 Deductible Section | In case of a loss, we cover only that part of
Total Annual Policy Premium $4,623 the loss over the deductible stated unless
Policy Fees (See Details, P.2) $59 otherwise stated in policy:
Endorsement Fees (See Details, P.2) $0.
Total Policy Charges $4,682 No Sinkhole Coverage
$2,500 All Other Perils Deductible
Premium Change Due to Rate Change $516
Premium Change Due to Coverage Change $ 334 2% ($6,520) Hurricane Deductible
Fee Change from Prior Term $32 (Hurricane and Sinkhole Deductibles are a percentage of Coverage A)
The Hurricane portion of the Premium is: $2,459 The Non-Hurricane portion of the Premium is: $2,164
Arate adjustment of $ 0 is included to reflect the Building Code Effectiveness Grade for your area. Adjustments range from approximately a
9% surcharge to a 13.2% credit.
Please see Page 2 for important notices that apply to this policy.
‘Agent: DARLENE M ANTINORI - Other: Bill To: Policyholder
GREAT FLORIDA INS - PUNTA GORDA Hist Lien - JP MORGAN CHASE BANK, NA, ISAOA/ATIMA, PO BOX 1156
24630 SANDHILL BLVD #305 SPRINGFIELD, OH 45501 Loan # 4022124824
PUNTA GORDA, FL 33983
Phone: (941) 464-7992
‘Authorized Countersignature: Apr 26, 2023 12:37PM
ILLS
HC HO3 DEC 10 21 Page 1 of 2
Policy Number: HCPC-HO3-385308-10
Endorsement Premium Details Limit of Liability Annual Premium
Personal Property Replacement Coverage Not Included
Mold Coverage Property $10,000 Included
Mold Coverage Liability $50,000 Included
Permitted Incidental Occupancy Not Included
Loss Assessment Coverage $1,000 Included
Ordinance or Law Coverage 25% of Coverage A Included
Endorsement Premium Total $0
Underwriting Surcharges Details
No Prior Insurance or Dec Page Adjustment $0
Seasonal or Unoccupied Surcharge $0
Age of Home Adjustment $619
Rate Equalization Credit $0
Voluntary Writing Credit $0
Discount Capping Adjustment $0
Underwriting Surcharges Total $619
Policy Fee Details
Managing General Agency Fee $25
Emergency Management Preparedness and Assistance Trust Fund Fee $2
2022-01 Florida Insurance Guaranty Association (FIGA) Assessment Surcharge $32
Policy Fee Total $59
Recent Changes and Endorsements: Date Effective Premium Change
Endorsement Total $0
NOTICES
THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE
LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.
LAW AND ORDINANCE COVERAGE IS AN IMPORTANT COVERAGE THAT YOU
MAY WISH TO PURCHASE. PLEASE DISCUSS WITH YOUR INSURANCE
AGENT.
FLOOD INSURANCE: YOU MAY ALSO NEED TO CONSIDER THE PURCHASE
OF FLOOD INSURANCE. YOUR HOMEOWNER’S INSURANCE POLICY DOES
NOT INCLUDE COVERAGE FOR DAMAGE RESULTING FROM FLOOD EVEN IF
HURRICANE WINDS AND RAIN CAUSED THE FLOOD TO OCCUR. WITHOUT
SEPARATE FLOOD INSURANCE COVERAGE, YOU MAY HAVE UNCOVERED
LOSSES CAUSED BY FLOOD. PLEASE DISCUSS THE NEED TO PURCHASE
SEPARATE FLOOD INSURANCE COVERAGE WITH YOUR INSURANCE AGENT.
YOUR POLICY PROVIDES COVERAGE FOR A CATASTROPHIC GROUND COVER COLLAPSE
THAT RESULTS IN THE PROPERTY BEING CONDEMNED AND UNINHABITABLE. OTHERWISE,
YOUR POLICY DOES NOT PROVIDE COVERAGE FOR SINKHOLE LOSSES. YOU MAY
PURCHASE ADDITIONAL COVERAGE FOR SINKHOLE LOSSES FOR AN ADDITIONAL
PREMIUM.
Page 2 of 2 HC HO3 DEC 10 21
Checklist of Coverage
Policy Type: Homeowners (HO3)
The following checklist is for informational purposes only. Florida law prohibits this checklist from changing any of the provisions of
the insurance contract which is the subject of this checklist. Any endorsement regarding changes in types of coverage, exclusions,
limitations, reductions, deductibles, coinsurance, renewal provisions, cancellation provisions, surcharges, or credits will be sent
separately.
Reviewing this checklist together with your policy can help you gain a better understanding of your policy's actual coverages and
limitations, and may even generate questions. By addressing any questions now, you will be more prepared later in the event of a
claim. Experience has shown that many questions tend to arise regarding the coverage of attached or detached screened pool
enclosures, screened porches, and other types of enclosures. Likewise, if your policy insures a condominium unit, questions may
arise regarding the coverage of certain items, such as individual heating and air conditioning units; individual water heaters; floor,
wall, and ceiling coverings; built-in cabinets and counter tops; appliances; window treatments and hardware; and electrical fixtures. A
clear understanding of your policy's coverages and limitations will reduce confusion that may arise during claims settlement.
Please refer to the policy for details and any exceptions to the coverages listed in this checklist. All coverages are subject to the
provisions and conditions of the policy and any endorsements. If you have questions regarding your policy, please contact your agent
or company. Consumer assistance is available from the Department of Financial Services, Division of Consumer Services' Helpline at
(800) 342-2762 or www.fldfs.com.
This form was adopted by the Florida Financial Services Commission.
Dwelling Structure Coverage (Place of Residence)
Limit of Insurance: $326,000 Loss Settlement Basis: Replacement Cost
Other Structure Coverage (Detached from Dwelling)
Limit of Insurance: $6,520 Loss Settlement Basis: Replacement Cost
Personal Property Coverage
Limit of Insurance: $99,430 Loss Settlement Basis: Actual Cash Value
Deductibles
Annual Hurricane: $6520 All Perils (Other Than Hurricane): $2,500
OIR-B1-1670 (1-1-06) Page 1 of 4
Checklist of Coverage (continued)
The above Limit of Insurance, deductibles, and Loss Settlement Basis apply to the following perils insured against:
(Items marked below Y (Yes) indicate coverage IS included, those marked N (No) indicate coverage is NOT included)
Fire or Lightning
Hurricane
Flood (Including storm surge)
Windstorm or Hail (other than hurricane)
Explosion
Riot or Civil Commotion
Aircraft
Vehicles
Smoke
Vandalism or Malicious Mischief
Theft
Falling Objects
Weight of Ice, Snow or Sleet
Accidental Discharge or Overflow of Water or Steam
Sudden and Accidental Tearing Apart, Cracking, Burning or Bulging
Freezing
Sudden and Accidental Damage from Artificially Generated Electrical Current
Volcanic Eruption
Sinkhole
Any Other Peril Not Specifically Excluded (dwelling and other structures only)
Special limits and loss settlement exceptions may apply to certain items. Refer to your policy for details.
Loss of Use Coverage
Coverage Limit of Insurance Time Limit
(Items below marked Y (Yes) indicate coverage IS included, those marked N (No) indicate coverage is NOT included)
Y_ | Additional Living Expense 24 Consecutive Months
y_ | Fair Rental Value $32,600 24 Consecutive Months
y_| Civil Authority Prohibits Use 2 Weeks
Property - Additional / Other Coverages
(Items below marked Y (Yes) indicate coverage IS Limit of Insurance Amount of insurance is an additional amount of
included, those marked N (No) indicate coverage is NOT coverage or is included within the policy limit
included)
Included Additional
Y Debris Removal See Policy Y
Y Reasonable Repairs See Policy Y
Y Property Removed See Policy Y
Credit Card, Electronic Fund Transfer Card, or $500
Access Device, Forgery and Counterfeit Money
Loss Assessment $1,000
Collapse See Policy
Glass or Safety Glazing Material See Policy
Landlord's Furnishings See Policy
Law and Ordinance $81,500
Grave Markers
Mold / Fungi $10,000
OIR-B1-1670 (1-1-06) Page 2 of 4
Checklist of Coverage (continued)
Discounts
(Items below marked Y (Yes) indicate discount IS applied, those marked Dollar ($) Amount of Discount
N (No) indicate discount is NOT applied)
N_ | Multiple Policy
N_ | Fire Alarm / Smoke Alarm / Burglar Alarm Included in Base Premium
‘Sprinkler
Y Windstorm Loss Reduction Included in Base Premium
Building Code Effectiveness Grading Schedule Included in Base Premium
Other Included in Base Premium
Insurer May Insert Any Other Property Coverage Below
(Items below marked Y (Yes) indicate coverage IS Limit of Insurance Loss Settlement Basis:
included, those marked N (No) indicate coverage is NOT (ie. Replacement Cost, Actual Cash Value,
included) Stated Value, etc.)
Personal Liability Coverage
Limit of Insurance: $300,000
Medical Payments to Other Coverage
Limit of Insurance: $2,000
Liability - Additional / Other Coverages
(Items below marked Y (Yes) indicate coverage IS Limit of Insurance Amount of insurance is an additional amount of
included, those marked N (No) indicate coverage is NOT coverage or is included within the policy limit
included)
Included Additional
Y Claim Expenses See Policy Y
Y First aid Expenses See Policy Y
Y Damage to Property of Others $500 Y
Y Loss Assessment $1,000 Y
Insurer May Insert Any Other Liability Coverage Below
(Items below marked Y (Yes) indicate coverage IS included, those marked N (No) indicate coverage is Limit of Insurance
NOT included)
OIR-B1-1670 (1-1-06) Page 3 of 4
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OIR-B1-1670 (1-1-06) Page 4 of 4
Homeowners Choice Property & Casualty Insurance Company, Inc. Homeowners
OUTLINE OF YOUR HOMEOWNERS POLICY
The following outline of coverage is for informational purposes PERILS INSURED AGAINST
only. Florida law prohibits this outline from changing any of Coverage A - Dwelling and Coverage B - Other Structures
the provisions of the insurance contract which is the subject of
This policy insures against risk of direct loss to covered
this outline. Any endorsement regarding changes in types of
property under Coverages A and B, unless not covered or
coverage, exclusions, limitations, reductions, deductibles,
excluded from coverage as described elsewhere in the
coinsurance, renewal provisions, cancellation provisions,
policy.
surcharges, or discounts will be sent separately.
Coverage C - Personal Property
Please read your homeowners policy carefully for
This policy insures against direct physical loss under
complete descriptions and details.
Coverage C except as limited or excluded by your policy,
Contact your agent with any questions about this policy. caused by:
SECTION | - PROPERTY COVERAGE Fire or Lightning
Windstorm or Hail
Coverage A - Dwelling Explosion or Smoke
Protects against covered loss to your dwelling and structures
Riot or Civil Commotion
attached to your dwelling. It also protects against covered
Aircraft or Vehicles
loss to building materials located on your residence premises
which are being used in connection with your residence
Vandalism or Malicious Mischief
premises. Theft (on premises only)
Falling Objects
Coverage B - Other Structures Weight of Ice, Snow or Sleet
Protects against covered loss to structures on your residence
Accidental Discharge or Overflow of Water or Steam
premises not physically attached to the dwelling.
Sudden and Accidental Tearing Apart, Cracking,
Coverage C - Personal Property Burning or Bulging
Protects against covered loss to your personal property such Freezing of Plumbing or Household Appliances
as clothing and furniture. Special limits apply to some types of Sudden and Accidental Damage from Artificially
personal property including but not limited to: money, Generated Electricity
securities, watercraft, and theft of jewelry, firearms and . Volcanic Eruption
silverware. . Catastrophic Ground Cover Collapse
There are some items not covered under Coverage C. Some PROPERTY EXCLUSIONS
examples are animals, food spoilage, motorized vehicles and
property of roomers or boarders and other tenants. Loss by This policy does not provide protection under Coverages A,
B and C for losses resulting in any manner from:
theft while property is located off the residence premises is
not covered. Please review your policy for a complete list of
. Ordinance or Law
items that have special limits or are excluded. . Earth Movement and Settlement, Other than a
Catastrophic Ground Cover Collapse
Coverage D - Loss of Use Sinkhole Activity or Sinkhole Loss
Provides for the additional living expenses you incur while you Neglect or Intentional Loss
are temporarily unable to live at your home because of a War or Nuclear Hazard
covered loss. Payment would include such items as
Theft Away from the Residence Premises
temporary lodging and increased costs for food. Coverage D
Animals
is limited to 24 consecutive months from the date of the
covered loss. Pre-event evacuation expenses are not covered Off Premises Power Failure
under this policy. Inherent Vice, Decay, Defect and Mechanical
Breakdown
ADDITIONAL COVERAGES Flood and Other Water Damage
Included in your homeowners policy, these additional Constant or Repeated Seepage or Leakage of Water or
coverages include limitations and may not completely protect Steam
you against loss. . Settling, Shrinking, Bulging or Expansion
Debris Removal There are other exclusions. Please refer to your policy for
Reasonable Emergency Measures complete details regarding exclusions.
Trees, Shrubs and Other Plants
Fire Department Service Charge
OTHER LIMITATIONS
Property Removed Reasonable Emergency Measures — Necessary measures
Credit Card, Fund Transfer Card, Forgery and taken solely to protect covered property from further damage
Counterfeit Money may not exceed the greater of $3,000 or 1% of the Coverage
Loss Assessment Alimit unless approval is received in advance from us.
Collapse Notice of Claim to Us - Windstorm or Hurricane - Any
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Ruling
WOOLSEY vs STATE FARM GENERAL INSURANCE COMPANY
Jul 21, 2024 |
CVSW2206963
WOOLSEY VS STATE FARM
CVSW2206963 GENERAL INSURANCE MOTION FOR SUMMARY JUDGMENT
COMPANY
Tentative Ruling:
The hearing has been continued on the court’s own motion due to Crowdstrike
shutdown issues.
Ruling
JUNE VANTRIMPONT VS BLUE CROSS OF CALIFORNIA DBA ANTHEM BLUE CROSS
Jul 17, 2024 |
22TRCV01329
Case Number:
22TRCV01329
Hearing Date:
July 17, 2024
Dept:
B
Superior Court of California
County of Los Angeles
Southwest District
Torrance Dept. B
JUNE VANTRIMPONT,
Plaintiff,
Case No.:
22TRCV01329
vs.
[Tentative] RULING
BLUE CROSS OF CALIFORNIA DBA ANTHEM BLUE CROSS,
Defendant.
Hearing Date:
July 17, 2024
Moving Parties: Plaintiff June Vantrimpont
Responding Party: Defendant Blue Cross of California dba Anthem Blue Cross
(1)
Motion to Compel PMK Deposition and Production of Documents
(2)
Motion to Compel Further Responses to Demand for Discovery and Production, Set Two
The Court considered the moving, opposition, and reply papers.
RULING
The motion to compel production of PMK is MOOT as to Nos. 4, 5, and 7. As to Topic 6, the motion is GRANTED as to plaintiffs proposal to narrow the scope. The motion is GRANTED as to No. 1 to the extent the parties reached an agreement to a narrower scope. Defendant is ordered to produce a PMK within twenty days.
The motion to compel further responses to request for production of documents, set two is ruled on as follows:
GRANTED as to Nos. 15-16, 19 as narrowed by plaintiff. Defendant is ordered to produce further documents within twenty days.
DENIED AS MOOT as to Nos. 27, 28, 30, 32, 32, 33, 34.
DENIED as to Nos. 17-21, 22-25, 26, 31, 32, 33, 35.
BACKGROUND
On November 23, 2022, plaintiff June Vantrimpont filed a complaint against Blue Cross of California dba Anthem Blue Cross for breach of contract and violations of Bus. & Prof. Code 17200.
On March 16, 2023, plaintiff filed a FAC for breach of contract, breach of implied covenant of good faith and fair dealing, and violations of Bus. & Prof. Code §17200.
On June 14, 2024, the Court sustained defendants demurrer with leave to amend.
On July 13, 2023, plaintiff filed a SAC.
LEGAL AUTHORITY
Compel deposition
CCP §2025.450(a) provides: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.
CCP §2025.450(b) provides, A motion under subdivision (a) shall comply with both of the following:
(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
CCP §2025.230 states: If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.
Compel further
45-Day Rule
: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand. CCP §§2031.310(c), 2016.050; see
Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional.
Sexton v. Superior Court
(1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §2031.310(c).
Meet-and-Confer Requirement
: The motion to compel further responses must be accompanied by a declaration showing a reasonable and good faith attempt to resolve the issues outside of court (so-called meet and confer). CCP §§2016.040, 2031.310(b)(2).
Separate Statement
: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).
Request for Production of Documents
On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. CCP §2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP §2031.220. A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. CCP §2031.230.
A motion to compel further response to requests for production shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand. CCP § 2031.310(b)(1). To establish good cause, the burden is on the moving party to show both: [1]
Relevance to the subject matter
(e.g., how the information in the documents would tend to prove or disprove some issue in the case);
and
[2]
Specific facts justifying discovery
(e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is
no alternative source
for the information sought is an important factor in establishing good cause for inspection. But it is
not
essential in every case. Weil & Brown,
Civil Procedure Before Trial
, 8:1495.6 (citations omitted). Declarations are generally used to show the requisite good cause for an order to compel inspection. The declarations must contain specific facts rather than mere conclusions.
Id.
at 8:1495.7 (citation omitted). The declarations may be on information and belief, if necessary. However, in such cases, the specific facts supporting such information and belief (the sources of the information) must also be alleged.
Id.
at 8:1495.8 (citation omitted). Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and specific facts constituting good cause for inspection.
Id.
at 8:1495.9.
DISCUSSION
Compel PMK
Plaintiff requests that the Court compel defendant to produce a person(s) most knowledgeable for a deposition on designated topics Nos. 4-7 and to produce all documents response to Request for Production No. 1 in plaintiffs Notice of PMK Deposition dated November 20, 2023.
On November 20, 2023, plaintiff served a notice of taking deposition of defendants PMK. Plaintiff explains that Topics 4 and 5 seek information on Anthems investigation into plaintiffs request for benefits and, specifically, what policies and procedures were followed and whether they were sufficient to allow for a full, fair, and thorough investigation into plaintiffs request for TPVR. Topics 6 and 7 and Request for Production No. 1 seek information and documents on Anthems medical policy for transcatheter heart valve procedures.
The parties met and conferred and participated in IDCs.
Plaintiff argues that the documents are relevant to her allegations that Anthem failed to conduct a full, fair, and thorough investigation into her request for a transcatheter pulmonary valve replacement (TPVR) because of its established policies and practices, which are designed to deny medically necessary treatment to its members as well as plaintiffs request for punitive damages.
In opposition, defendant argues that the motion was unnecessary. Defendant asserts that defendants PMKs depositions are scheduled for July 12 and July 23, 2024 as to Topics 4 and 5. As to Nos. 6 and 7, defendant contends that its PMK witness was scheduled for deposition on May 21, 2024 but that the deposition was taken off calendar and defendant has offered plaintiff alternative deposition dates. As to the request for production, No. 1, defendant argues that the motion should be denied as it is duplicative of Nos. 15 and 16 in plaintiffs request for production of documents, set two, and for the reasons set forth in its opposition to that motion. Further, defendant asserts that the motion is moot as to No. 1 because the parties reached an agreement as to a narrower scope.
In reply, plaintiff contends that subsequent to the June 14 IDC, the parties were able to reach an agreement on Topics 4, 5, and 7, but that Topic 6 remains in dispute. Plaintiff asserts that Topic 6 (which tracks the language of RFP No. 15) seeks highly probative information that will show Anthem knew its medical policy for TPVR was outdated when it denied plaintiffs request for TPVR in February 2022 and her appeal in March 2022. Plaintiff explains that it had proposed a compromise on the scope of No. 6.
The Court rules as follows: The motion is MOOT as to Nos. 4, 5, and 7. As to Topic 6, the motion is GRANTED as to plaintiffs proposal to narrow the scope. Further, as to request for production, No. 1, the parties also reached an agreement as to a narrower scope, which the Court finds to be reasonable.
Compel further documents
Plaintiff requests that the Court compel defendant to provide a further verified response and production to plaintiffs second set of demands for production, Nos. 15-35 and to order defendant to remove the preliminary statement and general objections and to remove all specific objections.
On November 1, 2023, plaintiff propounded Request for Production, Set Two, Nos. 15-35. On December 19, 2023, defendant served objections and responses.
Plaintiff contends that Anthem only asserted objections to Nos. 17-21, 23-27, 33, and 35, and that its responses to Nos. 28-32 are incomplete, inadequate, and evasive. Plaintiff argues as to why she has good cause as to responsive documents.
In opposition, defendant argues that its objections have merit. In general, defendant contends that the RFPs at issue are not reasonably particularized and seeks documents not relevant to the issues in this case; they seek documents that would violate HIPAA and/or the privacy rights of Anthems members and its employees; are overly broad and seek to impose on Anthem the undue burden to identify, collect, review, redact, and produce a broad range of documents.
The Court rules as follows:
Nos. 15-16, 19
: Anthems Medical Policy SURG.00121 entitled Transcatheter Heart Valve Procedures. Since the IDC, defendant served supplemental responses to Nos. 15 and 16.
Defendant still objects to producing all emails, texts and letters regarding SURG.00121. Defendant asserts that SURG.00121 addresses several different valve procedures, not just TPVR and as such it is facially overly broad.
Defendant notes that plaintiff had suggested a compromise, which it finds to be acceptable, to narrow the scope to: TPVR and to emails, texts, and letters from the researcher and physician reviewer assigned to SURG.00121. The Court finds that the compromise is reasonable. GRANTED to the extent narrowed by plaintiff.
Nos. 17-21
: Anthems communications with Junes cardiologist, Dr. Aboulhosn. Defendant served supplemental responses to Nos. 20 and 21. As noted by defendant, plaintiff seeks appeals, documents, and communications related to Anthem members other than herself who are not parties to this case. DENIED.
Nos. 22-25, 33
: Anthems employees and agents involved in the utilization review process and/or in making decisions, such as denials, on Anthems behalf.
Defendant argues that such documents are not relevant and implicate the privacy interests of Anthems employees who are not parties to this case and that plaintiff has not established that Anthems medical reviewers compensation is tied to the outcome of the medical reviews they perform. DENIED.
No. 26
: Complaints and appeals by Anthems subscribers who claimed they were denied TPVR coverage by Anthem due to lack of medical necessity. DENIED.
No. 35
: Authorizations of TPVR that involved a valve in valve replacement. DENIED.
Nos. 27, 34
: Anthems contentions related to damages and affirmative defenses. Defendant served supplemental responses. DENIED as MOOT.
No. 28
: Anthems recordings with June or anyone acting on her behalf. Defendant served supplemental responses. DENIED as MOOT.
No. 30
: Anthems policies, procedures, guidelines and documents relating to utilization review. Defendant served supplemental responses to No. 30. Defendant also explains that this RFP is duplicative of Nos. 5-10 in set one, and that the parties had ultimately narrowed those requests. DENIED as MOOT.
Nos. 31-32
: Anthems communications with California State regulators, including the DMHC and Department of Insurance regarding June. Defendant served supplemental responses. DENIED as MOOT.
Plaintiff requests $1,000 in sanctions against defendant and defense counsel. The Court finds that defendant acted with substantial justification. The request is DENIED.
ORDER
The motion to compel production of PMK is MOOT as to Nos. 4, 5, and 7. As to Topic 6, the motion is GRANTED as to plaintiffs proposal to narrow the scope. The motion is GRANTED as to No. 1 to the extent the parties reached an agreement to a narrower scope. Defendant is ordered to produce a PMK within twenty days.
The motion to compel further responses to request for production of documents, set two is ruled on as follows:
GRANTED as to Nos. 15-16, 19 as narrowed by plaintiff. Defendant is ordered to produce further documents within twenty days.
DENIED AS MOOT as to Nos. 27, 28, 30, 32, 32, 33, 34.
DENIED as to Nos. 17-21, 22-25, 26, 31, 32, 33, 35.
Plaintiff is ordered to give notice.
Ruling
GARY N. NEIL ET AL VS. BAMBOO INSURANCE SERVICES, INC. ET AL
Jul 17, 2024 |
CGC24612762
Matter on the Law & Motion Calendar for Wednesday, July 17, 2024, Line 12. 2 - DEFENDANT SUTTON NATIONAL INSURANCE's COMPANY DEMURRER to COMPLAINT. Off calendar. The Peters declaration indicates counsel did not meet and confer in person, by telephone, or by video conference, as required by CCP 430.41. Responsive pleadings are now due by August 19, 2024. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)
Ruling
JOKAKE CONSTRUCTION SERVICES, INC., AN ARIZONA CORPORATION VS PASADENA OAKS LIFE PROPERTIES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 22, 2024 |
22AHCV00484
Case Number:
22AHCV00484
Hearing Date:
July 22, 2024
Dept:
P
[TENTATIVE] ORDER GRANTING TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICAS MOTION TO CONSOLIDATE TRAVELERS ACTION WITH CONSOLIDATED ACTION FOR ALL PURPOSES
Cross-Defendant and Cross-Complainant TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICAS (Travelers) Motion to Consolidate its case with this consolidated action came on regularly for hearing on July 22, 2024 at 8:30 a.m. in Department P of the above-referenced Court. The parties appeared as noted in the record.
After considering the moving and opposing papers, arguments of counsel, and all matters presented to the Court, and good cause appearing therefor, the Court orders as follows:
1.
That the instant consolidated action entitled Jokake Construction services, Inc. v. Pasadena Oaks Life Properties, LLC, et al., Lead Case No. 22AHCV00484 and the related case entitled Travelers Casualty and Surety Company of America v. Kincaid Industries, Inc., et al., Case No. 24NNCV00440 be consolidated for all purposes, including trial.
2.
That all documents filed hereinafter must be filed in the lead case, bearing Case No. 22AHCV00484, and must include the caption and case number of the lead case, followed by the case numbers of all other consolidated matters.
IT IS SO ORDERED.
DATED: July 22, 2024
JARED D. MOSES
JUDGE OF THE SUPERIOR COURT
Ruling
LUNZER vs WHITE, et al.
Jul 18, 2024 |
Civil Unlimited (Insurance Coverage (not complex)) |
23CV046127
23CV046127: LUNZER vs WHITE, et al.
07/18/2024 Hearing on Motion to Strike Plaintiff Thomas Lunzer's Second Amended
Complaint; filed by Tom Pettygrove (Defendant) in Department 518
Tentative Ruling - 07/16/2024 Victoria Kolakowski
The Motion to Strike (not initial pleading) Notice of Motion and Motion to Strike Plaintiff's
second amended complaint filed by Tom Pettygrove on 04/23/2024 is Denied.
The motion is moot in light of the Court's ruling on Pettygrove's demurrer.
PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative
ruling will become the order of the Court unless it is contested before 4:00 PM on the court day
preceding the noticed hearing.
To contest a tentative ruling, a party should do the following:
First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and
copy all counsel of record and self-represented parties. The contesting party must state in the
subject line of the email the case name, case number and motion.
Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case
number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this
Ruling" button, enter the party's name and a brief statement of the party's reason for contesting
the tentative, and click "Proceed."
Parties may appear via videoconference, using the Zoom.com website or application.
TO CONNECT TO ZOOM:
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Topic: Department 518's Personal Meeting Room
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV046127: LUNZER vs WHITE, et al.
07/18/2024 Hearing on Motion to Strike Plaintiff Thomas Lunzer's Second Amended
Complaint; filed by Tom Pettygrove (Defendant) in Department 518
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Ruling
MICHAEL Z HERMALYN, ET AL. VS DRAFTKINGS, INC.
Jul 17, 2024 |
24STCV02694
Case Number:
24STCV02694
Hearing Date:
July 17, 2024
Dept:
39
TENTATIVE RULING
DEPARTMENT
39
HEARING DATE
July 17, 2024
CASE NUMBER
24STCV02694
MOTIONS
Motion for Preliminary Injunction
MOVING
PARTY
Plaintiffs Michael Z. Hermalyn and FVP, LLC
OPPOSING PARTY
Defendant DraftKings, Inc.
MOTION
Plaintiffs Michael Z. Hermalyn (Hermalyn) and FVP, LLC (Fanatics, collectively, Plaintiffs) move for a preliminary injunction.
Plaintiffs seek a preliminary injunction to preclude Defendant DraftKings Inc. (Defendant) from attempting to enforce any non-competition or non-solicitation provision in any agreements between Hermalyn and Defendant, or attempting to disrupt the employment relationship between Hermalyn and Fanatics.
Defendant opposes the motion.
ANALYSIS
To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits. . . .
If the threshold requirement of irreparable injury is established, then we must examine two interrelated factors to determine whether the trial court's decision to issue a preliminary injunction should be upheld: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.
(
Costa Mesa City Employees' Assn. v. City of Costa Mesa
(2012) 209 Cal.App.4th 298, 305-306, internal quotations and citations omitted.)
Plaintiffs are likely to prevail on the merits of this case.
(See
Application Group v. Hunter Group
(1998) 61 Cal.App.4th 881, 894.)
Under Business and Professions Code section
16600, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.
(Bus. & Prof. Code, § 16600.)
A former employee may sue for injunctive relief to enjoin enforcement of a covenant not to compete.
(Bus. & Prof. Code
§§ 16600, 16600.5.)
However, Defendant sued Hermalyn in
DraftKings Inc. v. Hermalyn
(D.Mass. 2024, No. 1:24-cv-10299) (the Massachusetts case) to enforce Hermalyns agreement not to compete with Defendant.
The Court cannot enjoin that action.
A parallel action in a different state presents sovereignty concerns that compel California courts to use judicial restraint when determining whether they may properly issue [injunctive relief] against parties pursuing an action in a foreign jurisdiction.
(
Advanced Bionics Corp. v. Medtronic, Inc
. (2002) 29 Cal.4th 697, 707 (
Advanced Bionics
).)
[E]njoining proceedings in another state requires an exceptional circumstance that outweighs the threat to judicial restraint and comity principles.
(
Id
. at 708.)
In their ex parte application for a temporary restraining order filed on February 20, 2024,
Plaintiffs stated Hermalyn was not seeking to enjoin Defendant from pursuing its federal court action in Massachusetts and only sought relief in this action that would protect his rights in California.
(See Ex Parte Application for TRO and OSC Re Preliminary Injunction Feb. 20, 2024), p. 25, fn. 6.)
Plaintiffs asserts the court at the February 22, 2024 hearing of that ex parte application rejected the notion Plaintiffs sought to enjoin Defendant in the Massachusetts case.
But, on April 30, 2024, Defendant obtained a preliminary injunction against Hermalyn in that matter enjoining him from using and disclosing any confidential information and, for a 12-month period commencing on February 1, 2024, from directly or indirectly soliciting Defendants employees and providing services to a competing business.
Therefore, any injunction against Defendant in this case would necessarily have the effect of enjoining
the proceedings in the Massachusetts case.
It is unclear what Plaintiffs seek to enjoin other than to prevent Defendant from enforcing the noncompete and nonsolicitation clauses in Hermalyns employment agreements which the Massachusetts court has determined to be enforceable.
Accordingly, the motion is denied.
[1]
Plaintiffs are ordered to provide notice of this order and file proof of service of such.
[1]
As the California Supreme Court noted, and as is reflected in this courts contemporaneous ruling on Plaintiffs motion to bifurcate and for expedited trial and its July 12, 2024 ruling on Defendants motion to quash,
the Massachusetts case does not divest California of jurisdiction, as Plaintiffs remain free to litigate this action unless and until [Defendant] demonstrates to the Los Angeles County Superior Court that any . . . judgment [in the Massachusetts case] is binding on the parties. . . . [P]otentially conflicting judgments naturally result from parallel proceedings but do not provide a reason for issuing a TRO.
(
Advanced Bionics
,
supra
, 29 Cal.4th at p. 708.)
Ruling
THE HILD CORPORATION DBA INDUSTRIAL HIGH VOLTAGE, A CALIFORNIA CORPORATION VS JASON P GUILLEN, ET AL.
Jul 16, 2024 |
22TRCV00100
Case Number:
22TRCV00100
Hearing Date:
July 16, 2024
Dept:
P I. Defendants Motion for Attorneys Fees II. Plaintiffs Motion to Tax Costs The court considered the moving papers, oppositions, and replies related to each motion. RULING Defendants motion for attorneys fees is denied. Plaintiffs motion to strike or tax costs is granted in part. BACKGROUND Plaintiff The Hild Corporation dba Industrial High Voltage sued defendants Jason Paul Guillen, Tyson B. Schilz, Industrial Line Voltage LLC, and Gectwo, Inc. on February 9, 2022 for (1) conversion, (2) intentional interference with contractual relations, (3) intentional interference with prospective economic advantage, (4) negligent interference with prospective economic advantage, and (5) unfair competition. On September 11, 2023, the Court entered summary judgment in favor of defendants Schilz and Gectwo, Inc. (Defendants). On January 5, 2024, Defendants moved for attorneys fees. On the same date, they filed their first memorandum of costs. On January 22, 2024, Plaintiff moved to strike or tax Defendants costs. On February 21, 2024, Defendants opposed, and on February 27, 2024, Plaintiff replied. On March 5, 2024, the Court continued the hearing on the motion to tax to June 14, 2024, and set Defendants fees motion to be heard concurrently. The two motions were later continued again and set to be heard on this date. On April 24, 2024, Defendants filed a second memorandum of costs On May 14, 2024, Plaintiff filed a second motion to strike or tax costs. After a continuance, the Court set the second motion to tax for hearing on this date also. On July 2, 2024, Defendants filed their opposition to Plaintiffs second motion to tax costs. On July 7, 2024, Plaintiff filed its reply. On July 9, 2024, Defendants filed their reply in support of their motion for attorneys fees. LEGAL AUTHORITY Recovery of Attorneys Fees Code of Civil Procedure section 1021 codifies the American Rule, that each party to litigation presumptively bears its own fees: Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided. Notwithstanding the American Rule, the Code of Civil Procedure and Civil Code both permit recovery of fees by statute or contract. Code of Civil Procedure section 1033.5 includes attorneys fees among recoverable costs when authorized by ... (A) Contract. (B) Statute. [or] (C) Law. (Code Civ. Proc., § 1033.5(a)(10).) And Civil Code section 1717(a) states that [i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. [¶] ... [¶] Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. Recovery of Costs The rule for cost-shifting turns the rule for fee-shifting on its head: Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b), emphasis added.) A party claiming costs must serve and file a memorandum of costs. (Cal. Rules of Court, rule 3.1700(a).) The opposing party may then contest the costs by filing a motion to tax costs. (Code Civ. Proc., § 1034; Cal. Rules of Court, rule 3.1700(b).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) TIMELINESS Defendants argue Plaintiffs opposition to their motion for fees should be disregarded as untimely. The Court declines to disregard Defendants filing. (See Code Civ. Proc., § 128(a)(8) [discretion to amend procedures to conform to justice].) Plaintiff was able to file a substantive reply, and after several continuances had ample opportunity to sur-reply as necessary. DISCUSSION The parties have filed cross-motions. Defendants move to recover attorneys fees, which they have also included in their post-judgment memorandum of costs. Plaintiff has opposed Defendants fees claim and independently moved to strike Defendants cost memorandum. The Court discusses the overlapping motions in turn. Attorneys Fees Defendants argue they are entitled to recover costs based on Code of Civil Procedure section 1033.5 and Civil Code section 1717. They point to no contract between Plaintiff and Defendants that might authorize the Court to award fees in this instance. Instead, they argue [t]he court may[] in its discretion award all costs and attorneys fees to [an] injured person ... . (Mot., 4:3-4, citing Chinn v. KMR Property Management (2008) 166 Caql.App.4th 175, 194 (Chinn).) Defendants also propose a broad reading of the phrase on the contract in Civil Code section 1717, suggesting that Plaintiffs suit is on a contract because the action involves a contract . (Mot., 4:10-16, citing Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 455.) In their Reply, Defendants also raise the argument that they are entitled to fees under Code of Civil Procedure section 1021.5, which allows the Court to award fees to a party who litigates in the public interest. (See Reply, 3:1-6.) As to Defendants first argument: Defendants case law does not suggest the Court has discretion to award fees whenever it wants. The case discusses the Courts well-established discretion to determine who is a prevailing party in order to shift fees or costs. (Chinn, supra, at p. 194.) Defendants do not show the Court has discretion to depart from the American Rule at will, nor does the Court believe it has such discretion. As to Civil Code section 1717: this action is not on a contract. Although the complaint refers to several contracts with third parties, none of Plaintiffs claims rely on any contract with Defendants. Apparently Plaintiff produced some of these third-party contracts in discovery, and those contracts contain fee provisions. But none of those contracts are agreements between Plaintiff and Defendants, and none applies to this case. Defendants misstate the law when they suggest an action is on a contract whenever it involves the contract. Rather, [a]n action is on the contract when it is brought to enforce the provisions of the contract. (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 7.) That was the case in Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, the only case Defendants cite in support of their argument. It is not the case here. Plaintiffs own (mistaken) prayer for fees in its complaint does not amount to any waiver or concession on this point. The question for purposes of Civil Code 1717 is not whether either party demands fees, but whether [either] party would have been liable for the fees of the opposing party if the opposing party had prevailed. (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 382.) Whether or not Plaintiff prayed for fees, they couldnt recover them on any apparent contract. Neither can Defendants. Defendants raise their section 1021.5 argument only in Reply, but given the continuances of the motion Plaintiff has had an opportunity respond, and the Court considers the point. It is not persuasive. [E]ligibility for section 1021.5 attorney fees is established when (1) plaintiffs action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate. [Citation.] (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.) Defendants argue their defense was in the public interest because by successfully defending themselves, they have thwarted Plaintiffs hypothetical attempts to thwart third parties rights to contract. Even accepted as true, this hypothetical benefit to a small subset of third parties satisfies none of the requirements for fee-shifting under Code of Civil Procedure section 1021.5. Defendants motion for attorneys fees is denied. Motion to Tax Costs A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal ... . (Cal. Rules of Court, rule 3.1700(a)(1).) The Court entered judgment for Defendants on April 11, 2024. The Court did not mail formal notice to the parties; the Court mailed its order to Defendants counsel and ordered Defendants to give notice of the ruling. (See 09-11-2024 Minute Order, p. 8.) On April 16, 2024, Defendants filed their Notice of entry of judgment with the Court with proof of electronic service and service by mail. (11-20-2023 Notice of Ruling.) While Defendants had previously filed a memorandum of costs on January 5, 2024, the court disregards it as it was premature. This ruling is predicated upon the memorandum of costs timely filed on April 24, 2024. Having considered that memorandum as well as the motion to tax costs, the court awards the following costs: Filing and motion fees in the amount of $1830.74, Jury Fees in the amount of $164.76, and Document retrieval fees in the amount of $131.33. The total costs awarded are: $2,126.83. RULING Defendants motion for attorneys fees is denied. Plaintiffs motion to tax costs is granted in part.
Ruling
NORMS RESTAURANTS, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS BRANDON TYERMAN, AN INDIVIDUAL, ET AL.
Jul 16, 2024 |
23STCV31075
Case Number:
23STCV31075
Hearing Date:
July 16, 2024
Dept:
61
NORMS RESTAURANTS, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs BRANDON TYERMAN, AN INDIVIDUAL, et al.
TENTATIVE
Defendant Eisenberg & Associates Motion for Attorney Fees is DENIED. Plaintiff to provide notice.
DISCUSSION I. ATTORNEY FEES Defendant Eisenberg & Associate (Eisenberg) seeks $63,441.00 in attorney fees associated with Eisenbergs anti-SLAPP motion, during the pendency of which Plaintiff Norms Restaurant, LLCs (Plaintiff) claims against it were dismissed. Eisenbergs counsel, Bryan W. Edgar of the Edgar Legal Group, offers a declaration attesting to 39.9 hours of attorney work at a rate of $795
per hour, yielding a total of $31,720, or $63,441 with a requested 200% multiplier. (Edgar Decl. ¶¶ 46.)
Code of Civil Procedure § 425.16, subd. (c)(1) states that a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion, . . . or as part of a cost memorandum. (Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461.) Eisenberg is arguably a prevailing defendant under the anti-SLAPP statue, even though the court denied its motion as moot. Even upon voluntary dismissal of a claim under a pending anti-SLAPP challenge, the trial court continued to have jurisdiction over the case only for the limited purpose of ruling on the defendants' motion for attorney fees and costs. (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 879.) A court may thus award attorney fees under the anti-SLAPP statute on a dismissed claim and a denied motion if it determines that a defendant would have prevailed on its motion to strike. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1457.) Eisenberg argues that it would have prevailed on its anti-SLAPP motion because the conduct alleged against it was litigation-related activity protected by both the anti-SLAPP statute and the litigation privilege of Civil Code § 47. (Motion at pp. 67.) Specifically, Eisenberg argues that Plaintiff sued it for assisting its client in the breach of confidentiality, non-disparagement and non-cooperation clauses in an employment settlement agreement by encouraging other employees to file suit against Plaintiff. (Ibid.) Plaintiff and its former counsel, in separate oppositions, object to Eisenbergs assumed status as a prevailing party (Norms Opposition at pp. 1415; Fisher Opposition at pp. 812.) Both opposition parties argue that the fees sought are unreasonable and excessive. (Norms Opposition at pp. 1618; Fisher Opposition at pp. 1214.) And Plaintiffs former attorneys argue that they are not permissible targets for an anti-SLAPP attorney fees motion. (Fisher Opposition at pp. 78.) However, it is unnecessary to address these arguments, as Eisenbergs request for fees is squarely barred by authority preventing an award of fees to a self-represented party. [S]elf-represented attorneys are not eligible to have their fees compensated even when prevailing on an anti-SLAPP motion. (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 253.) A firm defending itself through its own partners, members, or associates would not be entitled to attorney fees, as this would enable a double recovery of fees on services already presumptively performed for the attorneys own benefit, and create an imbalance of privilege in favor of attorneys over non-attorneys, who cannot recover fees for their own . (See Sands & Associates v. Juknavorian (2012) 209 Cal.App.4th 1269, 1297.) This authority applies here because it is undisputed that Eisenbergs counsel, Bryan W. Edgar, though appearing nominally as part of Edgar Legal Group, is of counsel to Defendant Eisenberg, the client he is representing. Edgar maintains a profile on the LinkedIn website indicating that he has been Of Counsel for Eisenberg since 2016. (Goldstein Decl. ¶ 11, Exh.
3.) Although Edgar used an Edgar Law Group email address through most of this litigation, in April 2024 he began using an email address associated with Eisenberg to receive emails from an Eisenberg legal assistant, which were forwarded to opposing counsel. (Goldstein Decl. ¶ 10, Exh. 2, 47.) Plaintiff presents complaints, dating from 2019 to December 2023, brought by Eisenberg, listing Edgar as among the attorneys in the caption. (RJN Exhs. 15.) Edgar Law Groups address listed on the California State Bar website is the same as the address of Eisenberg. (Goldstein Decl. ¶ 15.)
Applicable case authority squarely bars the recovery of prevailing-party fees nominally incurred by its of counsel attorney. The court in Sands & Associates, supra, 209 Cal.app.4th at pp. 12721273, held as follows: The question on appeal is whether a law firm can recover attorney fees under a prevailing party clause when the firm is a successful litigant represented by of counsel. Our analysis is based on two well-settled principles. First, when a law firm is the prevailing party in a lawsuit and is represented by one of its partners, members, or associates, it cannot recover attorney fees even though the litigation is based on a contract with a prevailing party clause. (See Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 375, 385, 124 Cal.Rptr.3d 598 (Carpenter ); see also Trope v. Katz (1995) 11 Cal.4th 274, 277, 292, 45 Cal.Rptr.2d 241, 902 P.2d 259 (Trope ).) Second, the relationship between a law firm and of counsel is close, personal, continuous, and regular. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1153, 86 Cal.Rptr.2d 816, 980 P.2d 371 (SpeeDee Oil ), italics omitted.) [T]o the extent the relationship between [an attorney] or law firm and another [attorney] or law firm is sufficiently close, personal, regular and continuous, such that one is held out to the public as of counsel for the other, the ... relationship must be considered a single, de facto firm for purposes of [avoiding the representation of adverse interests]. (Id. at p. 1154, 86 Cal.Rptr.2d 816, 980 P.2d 371, italics added, citing State Bar Rules Prof. Conduct, rule 3310.) Similarly, because the relationship between a law firm and of counsel is close, personal, regular, and continuous, we conclude that a law firm and of counsel constitute a single, de facto firm, and thus a law firm cannot recover attorney fees under a prevailing party clause when, as a successful litigant, it is represented by of counsel. (Sands, supra, 209 Cal.App.4th at pp. 12721273.) Edgar here is of counsel to Eisenberg, a fact not contested here. (Reply at p. 2.) He is held out to the public as such, and this relationship is close, personal, continuous, and regular, as evidenced by the sharing of staff, office space, and continuing appearance of Edgar as an Eisenberg attorney in various cases. Per the bright-line rule of the Sands court to the effect that attorneys of counsel to a law firm are sufficiently integral to a law firm as to disallow fees for defense of the firm (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 255) Eisenberg is barred from recovering the fees sought here by these facts alone. Eisenbergs attempt to distinguish this case is unavailing. It attempts to argue, not that the closeness of the of-counsel relationship is not present here, but that the independent existence of the Edgar Law Group somehow compels a different conclusion. (Reply at pp. 25.) Yet the existence of an of counsel attorneys separate practice is immaterial: [I]t does not matter that they may have represented clients obtained through their own efforts, that they had what they call a separate practice, or that they were not on the firm's payroll. (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 256.) The evidence that Eisenberg presents is in accord with that presented in Sands. There, the court noted as follows: [N]o evidence supports the conclusion that the firm incurred an obligation to pay $25,235what the trial court awardedor any other amount to Of Counsel, whether determined by the hours spent on the case or as a percentage of the recovery. Of Counsel did not offer any evidence indicating how they would be or were compensated by the
firm. In moving for attorney fees, Of Counsel did not submit any billing statements or time recordsdocuments that would suggest the Sands firm had incurred attorney fees; nor did Of Counsel provide a breakdown or description of their services. For all we know, the firm paid Of Counsel in accordance with a permanent status in between those of partner and associate. (ABA Com. on Prof. Ethics, formal opn. No. 90-357, supra, p. 3.) And Of Counsel had offices at the same address as the Sands firm, were assisted by the firm's associates and support staff, and had the same telephone and telefacsimile numbers as the firm.
Ruling
THOMAS LIBBY VS. STATE FARM INSURANCE CO. ET AL
Jul 15, 2024 |
CGC22603068
Matter on the Discovery Calendar for Monday, Jul-15-2024, Line 2, 1-DEFENDANT STATE FARM GENERAL INSURANCE COMPANY'S MOTION TO COMPEL RESPONSES TO ADMISSION/INTERROGATORIES. Continued to August 13, 2024, on the court's motion. No JPT available. (D302)