Preview
1 PETER SCHWARTZ (SBN: 109859)
pschwartz@grsm.com
2 DAVID L. JONES (SBN: 112307)
djones@grsm.com
3 CHRISTOPHER R. WAGNER (SBN: 162092)
cwagner@grsm.com
4 STEVEN R. INOUYE (SBN: 245024)
sinouye@grsm.com
5 GORDON REES SCULLY MANSUKHANI, LLP
633 West Fifth Street, 52nd Floor
6 Los Angeles, CA 90071
Telephone: (213) 576-5019
7 Facsimile: (213) 680-4470
8 Attorneys for Defendant,
FIRE INSURANCE EXCHANGE
9
10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF SONOMA – HALL OF JUSTICE
Gordon Rees Scully Mansukhani, LLP
633 West Fifth Street, 52nd Floor
12 GARY KOOP, ) CASE NO. SCV-266944
[Assigned for All Purposes to Hon. Oscar A.
Los Angeles, CA 90071
)
13 Plaintiff, ) Pardo, Dept. 19]
)
14 vs. ) DEFENDANT FIRE INSURANCE
) EXCHANGE’S NOTICE OF MOTION
15 FIRE INSURANCE EXCHANGE, dba AND MOTION TO BIFURCATE
)
FARMERS INSURANCE GROUP; PLAINTIFF’S CLAIM FOR
16 BRIAN HUNSAKER, ) REFORMATION
)
17 Defendants. ) Date:
) Time:
18 ) Dept: 19
)
19 ) Complaint filed: August 24, 2020
Trial Date: November 17, 2023
20
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22 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD IN THIS ACTION:
23 PLEASE TAKE NOTICE that on ___________________, at _____ a.m/p.m., or as
24 soon thereafter as the matter may be heard in Department 19 of the above-entitled court, located
25 at 3035 Cleveland Avenue, Santa Rosa, CA 95403, defendant Fire Insurance Exchange (“Fire”)
26 will and hereby does move for an order bifurcating and/or severing the equitable claim for
27 reformation of plaintiff Gary Koop (“Plaintiff”) from the remaining legal claims in this case.
28 ///
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 This motion is authorized by Code of Civil Procedure sections 598 and 1048, and will be
2 based upon this notice, the memorandum of points and authorities attached hereto, the Request
3 for Judicial Notice (including the Declarations of Christopher Wagner, Jason Jones and Brian
4 Hunsaker), the complete files, records and pleadings in this action, and upon such other
5 documentary evidence that may be presented at the time of the hearing on this matter.
6
7 Dated: September 20, 2023 GORDON REES SCULLY MANSUKHANI, LLP
8
9 By:
Peter Schwartz
10 Christopher R. Wagner
David L. Jones
11 Steven R. Inouye
Gordon Rees Scully Mansukhani, LLP
Attorneys for Defendant
633 West Fifth Street, 52nd Floor
12 FIRE INSURANCE
EXCHANGE
Los Angeles, CA 90071
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 I. INTRODUCTION AND SUMMARY OF ARGUMENT
2 Plaintiff Gary Koop’s (“Plaintiff”) lawsuit in this case is novel. Plaintiff concedes (as he
3 must) that defendant Fire Insurance Exchange (“Fire”) paid the limits of his homeowners’ policy
4 92677-29-87 (“the Policy”) after Plaintiff’s home was destroyed in the 2017 wildfire. Instead,
5 Plaintiff argues that, based on an alleged comment by defendant Brian Hunsaker (which
6 Hunsaker denies), the Policy’s limits should have been greater or, alternatively, that the Policy
7 should have had no limits at all and thus provided Plaintiff with Guaranteed Replacement Cost
8 coverage.
9 Under either argument, Plaintiff’s basic claim is that the Policy should be reformed and
10 include terms different from those that are expressly stated in the Policy. Reformation is an
11 equitable claim which should be tried first to the Court. Therefore, Fire brings this motion to
Gordon Rees Scully Mansukhani, LLP
633 West Fifth Street, 52nd Floor
12 bifurcate so that the reformation claim should be bifurcated and tried first to the Court.
Los Angeles, CA 90071
13 II. FACTUAL BACKGROUND
14 A. Plaintiff’s Allegations
15 In 2006, Plaintiff purchased a 2,967 sq. ft. single-family residence located at 2650 Amber
16 Lane in Santa Rosa (the “Property”). He also purchased the Policy, which provided coverage for
17 the Property and included a Coverage A limit of $495,000. (First Amended Complaint (“FAC”)
18 at p. 2, ¶ 5.)
19 Plaintiff alleges that in 2015, he asked Farmers® agent Hunsaker whether the “Policy
20 provided adequate insurance for a rebuild in the event of a wildfire.” Hunsaker and/or his staff
21 allegedly told Plaintiff “that he was amply insured in the event of a disaster that required a
22 complete rebuild.” (FAC, at p. 2, ¶ 6.) Thereafter, Plaintiff admits that Hunsaker “emailed
23 [Plaintiff] on September 1, 2015 a Reconstruction Cost Estimate … created by 360Value
24 Replacement Cost Valuation.” The 360Value estimate provided a replacement cost estimate of
25 $502,000 – or $169.19 per square foot. (FAC at pp. 2-3, ¶ 6; see also Exhibit 4 attached to
26 Declaration of Christopher R. Wagner (“Wagner Dec.”) as referenced in Request for Judicial
27 Notice (“RJN”).) The 360Value estimate also stated: “This is an estimate of reconstruction
28 costs. We do not guarantee that this estimate reflects your home’s actual reconstruction cost in
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 the event of a loss. … We hope our estimate helps you so you can determine the amount of
2 coverage you need. … If you feel this estimate is not enough, then you should choose an amount
3 of insurance which does not match our estimate. If you have questions about construction costs
4 in your area, please contact a contractor or an appraiser.” (see also Exhibit 1 attached to
5 Declaration of Brian Hunsaker (“Hunsaker Dec.”),¶¶ 9-10 as referenced in RJN.) Hunsaker’s
6 employee, Liz Evans, asked Plaintiff to review the 360 Value estimate and respond with any
7 changes. (Id.) Plaintiff never responded and never requested any increases in his policy limits.
8 (Id.)
9 After a wildfire destroyed the Property in 2017, Plaintiff contends he was underinsured
10 because of Hunsaker’s alleged misrepresentation in 2015 “that [Plaintiff] was amply insured in
11 the event of a disaster.” (FAC at p. 10, ¶ 49.)
Gordon Rees Scully Mansukhani, LLP
633 West Fifth Street, 52nd Floor
12 B. The Policy
Los Angeles, CA 90071
13 When Plaintiff first purchased the Policy in 2006, he signed and initialed an insurance
14 application. (Exhibit 6 (HUNS000257-261) attached to Wagner Dec.) Although the application
15 included an “Estimated Reconstruction Cost” estimate of $450,000, Plaintiff elected to purchase
16 a higher Coverage A (Dwelling) limits in the amount of $495,000. (Exhibit 6 at p.
17 HUNS000257.) With regard to Plaintiff’s selection of Policy limits, the application stated:
18 The Estimated Reconstruction Cost is based on the unique construction
characteristics and geographic location of your dwelling. The Estimate is a guide
19 to assist you in determining coverage for your dwelling. It is your responsibility
to choose the coverage limit that is right for you. (Exhibit 6 at p.
20 HUNS000257, bold added.)
21 Year-after-year, Plaintiff agreed to renew the Policy – usually with an increase in the
22 Coverage A and B limits. For instance, in 2015, Plaintiff received a Home Insurance Renewal
23 Offer dated July 14, 2015 with a Coverage A limit of $592,000, which was the same year that
24 Plaintiff received a 360Value estimate from Hunsaker in the amount of $502,000. (Exhibit 7
25 (KOOP 0338-0365) attached to Wagner Dec.) This Renewal Offer explained that any
26 reconstruction estimate provided “was an estimate, not a guarantee of reconstruction costs.” It
27 also reiterated what Plaintiff had acknowledged in his application – i.e., that it was Plaintiff’s
28 responsibility to select the amount of coverage. In this regard, the 2015 Renewal Offer stated:
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 Reconstruction Cost and Your Coverage A (Dwelling) Amount
2 Policy Number: 92677-29-87
3 This document contains important information about your insurance
coverage. Please review this information carefully.
4
5 Do You Think You Have Enough Coverage?
6 At renewal your policy will provide $200 per square foot to rebuild your home.
(This does not include any additional amount added by extension or endorsement
7 to your policy.)
8 When you first obtained your policy, Farmers® used an estimating program to
calculate a reconstruction cost estimate for your home. This was an estimate, not
9 a guarantee of reconstruction costs.
10 For this renewal offer we have applied a reconstruction cost factor as part of the
renewal process. Since we do not unilaterally reduce the Coverage A amount at
11
Gordon Rees Scully Mansukhani, LLP
renewal, there will be no change in the Coverage A amount if application of the
633 West Fifth Street, 52nd Floor
12 factor would result in a decrease in the Coverage A amount. The chart below
shows the amount for which we have offered to insure your home at renewal as
Los Angeles, CA 90071
13 well as the Coverage A amount on your existing policy. We will calculate a new
estimate, rather than apply the reconstruction factor, upon request or when you
14 notify us of changes to the features of your home.
15 Coverage A (Dwelling) Amount offered to insure your home at $592,000
16 Existing Coverage A (Dwelling) Amount: $564,000
17 Please review the next page to make sure the details about your home are correct,
and let me know of any necessary changes. Changes to these details could result
18
in a change to the reconstruction cost estimate. Feel free to contact me at any
19 time if you want a new estimate calculated or if you want to make a change to the
amount for which your home is insured.
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***
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Do You Need Help?
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As your Farmers Agent I am happy to help you with any questions you have. I
23 can provide guidance as to the coverage options available, but I cannot choose
your coverage amounts for you. Ultimately, it is your responsibility to make sure
24 you have purchased sufficient insurance coverage to rebuild your home and
replace your personal property. (Exhibit 7 at KOOP 0353-0354, underlining
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added.)
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 On July 13, 2016, Fire provided the next year’s Home Insurance Renewal Offer to
2 Plaintiff, which included an increase in limits to $636,000. (Exhibit 8 at KOOP 0366-0393
3 attached to Wagner Dec.)
4 On July 13, 2017 (a few months before the loss), Fire provided yet another year’s Home
5 Insurance Renewal Offer with a further limits increase to $649,000. (Exhibit 9 at KOOP 0394-
6 0418 attached to Wagner Dec.) Both of these proposals stated: (a) the reconstruction cost
7 estimate previously provided “was an estimate, not a guarantee of reconstruction costs”; and (b)
8 the agent Hunsaker cannot select the Policy’s limits; rather, it is Plaintiff’s responsibility to
9 select his own limits. (Exhibit 8 at KOOP 0381-0382; Exhibit 9 at KOOP 0405-0406.)
10 The Policy in effect from September 5, 2017 to September 5, 2018 (at the time of the
11 loss) provided four pertinent categories of insurance: Coverage A (Dwelling); Coverage B
Gordon Rees Scully Mansukhani, LLP
633 West Fifth Street, 52nd Floor
12 (Separate Structures); Coverage C (Personal Property); and Coverage D (Loss of Use). (Exhibit
Los Angeles, CA 90071
13 10 at FIRE-CLAIMS 0443 attached to Declaration of Jason Jones (“Jones Dec.”) as referenced
14 in RJN.) The Policy also included Extensions of Coverage, which provided coverage for certain
15 other expenses that arise in the context of a total loss, such as Debris Removal, and landscaping
16 replacement. Thus, the total limits of coverage available under the Policy at the time of the loss
17 were as follows:
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Type of Property Insurance Description of Coverage Limits
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Dwelling (Coverage A) Dwelling Coverage $649,000.00
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Extended Replacement Cost (“ERC”) $162,250.00
21 (25% of Coverage A)
22 Building Ordinance or Law (“Code $64,900.00
Upgrades”) (10% of Coverage A)
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Trees, Shrubs, Plants and Lawns (5% of $32,450.00
24 Coverage A)
25 Debris Removal (5% of Coverage A) $32,450.00
26 Separate Structures (Coverage B) Separate Structures Coverage $64,900.00
27 Code Upgrades (10% of Coverage B) $6,490.00
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1
Type of Property Insurance Description of Coverage Limits
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Debris Removal (5% of Coverage B) $3,245.00
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Personal Property (Coverage C) Personal Property (Contents) Coverage $486,750.00
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Debris Removal (5% of Coverage C) $24,337.50
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Loss of Use (Coverage D) Loss of Use aka Additional Living $259,600.00
6 Expense (“ALE”) Coverage
7 TOTAL AVAILABLE LIMITS $1,786,372.50
8 (Exhibit 10 at p. FIRE-CLAIMS 0443; Jones Dec. at pp. 2-3, ¶ 5.)
9 C. The Claim
10 On October 10, 2017, Plaintiff’s Dwelling and Separate Structures at the Property were
11 destroyed in the Tubbs Fire. Plaintiff submitted a claim to Fire under the Policy on October 11,
Gordon Rees Scully Mansukhani, LLP
633 West Fifth Street, 52nd Floor
12 2017. (Jones Dec. at ¶ 6.)
Los Angeles, CA 90071
13 On November 13, 2017, Fire’s assigned adjuster requested policy limits authority for
14 Plaintiff’s loss, including for Coverage A (Dwelling), Coverage B (Separate Structures), and
15 Coverage C (Personal Property). This request also sought limits authority for ERC, Code
16 Upgrades, Debris Removal, and for Trees, Shrubs, Plants and Lawns. (Exhibit 15 at FIRE-
17 CLAIMS 0954 attached to Jones Dec.) The request was granted. (Jones Dec. at p. 4, ¶ 12.)
18 D. Fire Denied Plaintiffs Requests To Reform The Policy
19 After Plaintiff’s claim for benefits had already been fully paid and closed, on September
20 19, 2019, Plaintiff asked that the Policy be “retroactively reformed” to provide “guaranteed
21 replacement costs.” (Exhibit 33 (FIRE-CLAIMS 0507-0516) attached to Jones Dec.) Plaintiff
22 claimed: “I was lulled into a false sense of security after being advised that the policy limits
23 selected for me were adequate.” (Id.) On September 25, 2019, Fire denied Plaintiff’s
24 reformation request. (Exhibit 34 (FIRE-CLAIMS 2207-2208) attached to Jones Dec.)
25 On July 16, 2020, Plaintiff’s counsel asked Fire to “reconsider its position and reform
26 [Plaintiff’s] policy to reflect actual costs to rebuild in Santa Rosa, California and the actual
27 replacement cost of his home.” (Exhibit 40 (FIRE-CLAIMS 2386) attached to Jones Dec.) On
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 July 27, 2020, Fire refused counsel’s request. (Exhibit 41 (FIRE-CLAIMS 2273-2274) attached
2 to Jones Dec.)
3 E. The Litigation
4 Plaintiff filed a complaint in Sonoma County Superior Court on August 24, 2020. The
5 complaint asserted seven causes of action: (1) Breach of Contract; (2) Bad faith; (3)
6 Reformation; (4) Fraud; (5) Misrepresentation; (6) Negligence; (7) Violations of Business &
7 Professions Code § 17200.
8 On January 6, 2021, Plaintiff filed the FAC, which added Hunsaker as a defendant. Fire
9 answered the FAC on February 9, 2021.
10 On June 14, 2023, Hunsaker submitted a Declaration in support of his Opposition to
11 Plaintiff’s motion for summary judgment which stated: “I never made a representation to Mr.
Gordon Rees Scully Mansukhani, LLP
633 West Fifth Street, 52nd Floor
12 Koop that the Subject Property would be ‘fully covered’ by the Policy in the event of a wildfire.”
Los Angeles, CA 90071
13 (Hunsaker Dec., ¶ 4.)
14 III. BIFURCATION OF PLAINTIFF’S REFORMATION CLAIM IS APPROPRIATE
15 “A written contract is presumed to express the parties’ actual intention, and the party
16 seeking reformation bears the burden by clear and convincing evidence to overcome that
17 presumption.” (Bold added; R & B Auto Ctr., Inc. v. Farmers Grp., Inc. (2006) 140 Cal.App.4th
18 327, 382; Taff v. Atlas Assur. Co., Ltd. (1943) 58 Cal.App.2d 696, 702.)
19 Reformation is an equitable remedy that allows a Court to rewrite an insurance policy
20 “where, by reason of fraud, inequitable conduct or mutual mistake, the policy as written does not
21 express the actual and real agreement of the parties.” (American Sur. Co. of N.Y. v. Heise (1955)
22 136 Cal.App.2d 689, 695-696; Civil Code §§ 3399; 3401; Croskey, et al., Cal. Prac. Guide: Ins.
23 Litig. (TRG 2018) ¶ 5:111, p. 5-32.)
24 Code of Civil Procedure section 1048, subdivision (b) provides authority to bifurcate any
25 cause of action or issue from the remaining causes of action or issues in a case:
26 The court, in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy,
27 may order a separate trial of any cause of action, including a
cause of action asserted in a cross-complaint, or of any separate
28 issue or of any number of causes of action or issues, preserving the
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 right of trial by jury required by the Constitution or a statute of this
State or the United States. (Bold added.)
2
Code of Civil Procedure section 598 similarly provides, in pertinent part:
3
The court may, when the convenience of witnesses, the ends of
4 justice, or the economy and efficiency of handling the litigation
would be promoted thereby, on motion of a party, after notice and
5 hearing, make an order, no later than the close of pretrial
conference in cases in which such pretrial conference is to be held,
6 or, in other cases, no later than 30 days before the trial date, that
the trial of any issue or any part thereof shall precede the trial
7 of any other issue or any part thereof in the case … (Bold added.)
8
The purpose of bifurcation is to avoid prejudice, and to avoid litigating issues which may
9
never need to be addressed. (See Trickey v. Superior Court (1967) 252 Cal.App.2d 650, 653.)
10
“It is well established that, in a case involving both legal and equitable issues, the trial
11
Gordon Rees Scully Mansukhani, LLP
court may proceed to try the equitable issues first, without a jury … and that if the court’s
633 West Fifth Street, 52nd Floor
12
determination of those issues is also dispositive of the legal issues, nothing further remains to be
Los Angeles, CA 90071
13
tried by a jury.” (Raedeke v. Gibralter Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671; Golden
14
West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 50.) Accordingly, where a case
15
involves both equitable and legal issues, a Court appropriately bifurcates the case so that the
16
equitable claim is tried first. (See Orange County Water Dist. V. MAG Aerospace (2017) 12
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Cal.App.5th 229, 234.)
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There is no question that reformation is an equitable claim. (Appalachian Ins. Co. v.
19
McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 19; Jones v. First American Title Ins. Co.
20
(2003) 107 Cal.App.4th 381, 388.) In contrast, the remaining claims pleaded in the Complaint
21
are legal claims: Breach of Contract, Bad Faith, Fraud, Misrepresentation, Negligence, and
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Violations of Business & Professions Code § 17200.
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To the extent Plaintiff is seeking to reform the Policy, judicial economy – as well as the
24
convenience of the Court and the parties – supports bifurcation so that Plaintiff’s reformation
25
claim is tried to the Court first. Bifurcation is also consistent with California’s “long-standing
26
‘equity first’” rule. (See Orange County Water, supra, 12 Cal.App.5th at 234; see also Darbun
27
Enterprises, Inc. v. San Fernando Com. Hosp. (2015) 239 Cal.App.4th 399, 409.)
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 The Court should be able to complete a bench trial on Plaintiff’s reformation claim within
2 two or three days. A reformation trial would likely require the Court to review advanced legal
3 briefing, review the policy materials, hear the competing testimony of Plaintiff and Hunsaker
4 regarding any assurances provided about the coverage and allowing the parties to provide closing
5 arguments.
6 If the Court reforms the Policy, the policy limits would be different than the limits
7 currently reflected on policy materials. At that point, Fire would have an opportunity to pay the
8 modified limits to Plaintiff, thereby complying with the new policy terms. If the Policy is
9 reformed and Fire is required to provide guaranteed replacement cost coverage, Plaintiff’s
10 current legal claims for breach of contract and bad faith would become moot and his alleged tort
11 damages would be eliminated.
Gordon Rees Scully Mansukhani, LLP
633 West Fifth Street, 52nd Floor
12 There would not be any reason for the jury trial to proceed on Plaintiff’s legal claims
Los Angeles, CA 90071
13 before the reformation claim is adjudicated by the Court. It would be a waste of the jury’s time
14 to prematurely adjudicate claims which may be entirely different or non-existent once the Court
15 addresses the reformation claim.
16 IV. CONCLUSION
17 For the foregoing reasons, Fire’s motion to bifurcate should be granted such that
18 Plaintiff’s equitable claim for reformation is tried to the Court first before any of the legal
19 claims.
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21 Dated: September 20, 2023 GORDON REES SCULLY MANSUKHANI, LLP
22
By:
23 Peter Schwartz
Christopher R. Wagner
24 David L. Jones
Steven R. Inouye
25 Attorneys for Defendant
FIRE INSURANCE
26 EXCHANGE
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
1 PROOF OF SERVICE
2 I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP 633 West
3 Fifth Street, 52nd floor, Los Angeles, CA 90071. On September 20, 2023, I served the within
documents:
4
DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND
5 MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION
6
by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in United States mail in the State of California at Los Angeles,
7 addressed as set forth below.
8 by transmitting via E-Mail the document(s) listed above to the E-Mail address(s) set
forth below on this date before 5:00 p.m.
9
Glenn R. Kantor Albert M. T. Finch, III
10 Timothy Rozelle ERICKSSEN ARBUTHNOT
Sharee Rowe 210 North Fourth Street, Suite 350
11
Gordon Rees Scully Mansukhani, LLP
KANTOR & KANTOR, LLP San Jose, CA 95112
633 West Fifth Street, 52nd Floor
19839 Nordhoff Street (408) 286/0880 / Fax: (408) 286-0337
12 Northridge, CA 91324 afinch@ericksenarbuthnot.com
Los Angeles, CA 90071
(818) 886-2525 / Fax: (818) 350-6272 kokasaki@ericksenarbuthnot.com
13 gkantor@kantorlaw.net Attorneys for Defendant, BRIAN
srowe@kantorlaw.net HUNSAKER
14 trozelle@kantorlaw.net
Attorneys for Plaintiff, GARY KOOP
15
Stacy Monahan Tucker
16 Monahan Tucker Law
4241 Woodinville-Duvall Road, Suite 382
17 Woodinville, WA 98072
(206) 486-3553 / Fax: 206- 339-7155
18 smtucker@mtlawpc.com
cspencer@mtlawpc.com
19 Attorneys for Plaintiff, GARY KOOP
20
I am readily familiar with the firm’s practice of collection and processing correspondence
21 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
22 motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after the date of deposit for mailing in affidavit.
23
I declare under penalty of perjury under the laws of the State of California that the above
24 is true and correct.
25 Executed on September 20, 2023 at Los Angeles, California.
26
27
Jennifer Odell
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DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF’S CLAIM FOR REFORMATION
Preview
1 PETER SCHWARTZ (SBN: 109859) pschwartz@grsm.com 2 DAVID L. JONES (SBN: 112307) djones@grsm.com 3 CHRISTOPHER R. WAGNER (SBN: 162092) cwagner@grsm.com 4 STEVEN R. INOUYE (SBN: 245024) sinouye@grsm.com 5 GORDON REES SCULLY MANSUKHANI, LLP 633 West Fifth Street, 52nd Floor 6 Los Angeles, CA 90071 Telephone: (213) 576-5019 7 Facsimile: (213) 680-4470 8 Attorneys for Defendant, FIRE INSURANCE EXCHANGE 9 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF SONOMA – HALL OF JUSTICE Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52nd Floor 12 GARY KOOP, ) CASE NO. SCV-266944 [Assigned for All Purposes to Hon. Oscar A. Los Angeles, CA 90071 ) 13 Plaintiff, ) Pardo, Dept. 19] ) 14 vs. ) DEFENDANT FIRE INSURANCE ) EXCHANGE’S NOTICE OF MOTION 15 FIRE INSURANCE EXCHANGE, dba AND MOTION TO BIFURCATE ) FARMERS INSURANCE GROUP; PLAINTIFF’S CLAIM FOR 16 BRIAN HUNSAKER, ) REFORMATION ) 17 Defendants. ) Date: ) Time: 18 ) Dept: 19 ) 19 ) Complaint filed: August 24, 2020 Trial Date: November 17, 2023 20 21 22 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD IN THIS ACTION: 23 PLEASE TAKE NOTICE that on ___________________, at _____ a.m/p.m., or as 24 soon thereafter as the matter may be heard in Department 19 of the above-entitled court, located 25 at 3035 Cleveland Avenue, Santa Rosa, CA 95403, defendant Fire Insurance Exchange (“Fire”) 26 will and hereby does move for an order bifurcating and/or severing the equitable claim for 27 reformation of plaintiff Gary Koop (“Plaintiff”) from the remaining legal claims in this case. 28 /// -1- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 This motion is authorized by Code of Civil Procedure sections 598 and 1048, and will be 2 based upon this notice, the memorandum of points and authorities attached hereto, the Request 3 for Judicial Notice (including the Declarations of Christopher Wagner, Jason Jones and Brian 4 Hunsaker), the complete files, records and pleadings in this action, and upon such other 5 documentary evidence that may be presented at the time of the hearing on this matter. 6 7 Dated: September 20, 2023 GORDON REES SCULLY MANSUKHANI, LLP 8 9 By: Peter Schwartz 10 Christopher R. Wagner David L. Jones 11 Steven R. Inouye Gordon Rees Scully Mansukhani, LLP Attorneys for Defendant 633 West Fifth Street, 52nd Floor 12 FIRE INSURANCE EXCHANGE Los Angeles, CA 90071 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 I. INTRODUCTION AND SUMMARY OF ARGUMENT 2 Plaintiff Gary Koop’s (“Plaintiff”) lawsuit in this case is novel. Plaintiff concedes (as he 3 must) that defendant Fire Insurance Exchange (“Fire”) paid the limits of his homeowners’ policy 4 92677-29-87 (“the Policy”) after Plaintiff’s home was destroyed in the 2017 wildfire. Instead, 5 Plaintiff argues that, based on an alleged comment by defendant Brian Hunsaker (which 6 Hunsaker denies), the Policy’s limits should have been greater or, alternatively, that the Policy 7 should have had no limits at all and thus provided Plaintiff with Guaranteed Replacement Cost 8 coverage. 9 Under either argument, Plaintiff’s basic claim is that the Policy should be reformed and 10 include terms different from those that are expressly stated in the Policy. Reformation is an 11 equitable claim which should be tried first to the Court. Therefore, Fire brings this motion to Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52nd Floor 12 bifurcate so that the reformation claim should be bifurcated and tried first to the Court. Los Angeles, CA 90071 13 II. FACTUAL BACKGROUND 14 A. Plaintiff’s Allegations 15 In 2006, Plaintiff purchased a 2,967 sq. ft. single-family residence located at 2650 Amber 16 Lane in Santa Rosa (the “Property”). He also purchased the Policy, which provided coverage for 17 the Property and included a Coverage A limit of $495,000. (First Amended Complaint (“FAC”) 18 at p. 2, ¶ 5.) 19 Plaintiff alleges that in 2015, he asked Farmers® agent Hunsaker whether the “Policy 20 provided adequate insurance for a rebuild in the event of a wildfire.” Hunsaker and/or his staff 21 allegedly told Plaintiff “that he was amply insured in the event of a disaster that required a 22 complete rebuild.” (FAC, at p. 2, ¶ 6.) Thereafter, Plaintiff admits that Hunsaker “emailed 23 [Plaintiff] on September 1, 2015 a Reconstruction Cost Estimate … created by 360Value 24 Replacement Cost Valuation.” The 360Value estimate provided a replacement cost estimate of 25 $502,000 – or $169.19 per square foot. (FAC at pp. 2-3, ¶ 6; see also Exhibit 4 attached to 26 Declaration of Christopher R. Wagner (“Wagner Dec.”) as referenced in Request for Judicial 27 Notice (“RJN”).) The 360Value estimate also stated: “This is an estimate of reconstruction 28 costs. We do not guarantee that this estimate reflects your home’s actual reconstruction cost in -3- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 the event of a loss. … We hope our estimate helps you so you can determine the amount of 2 coverage you need. … If you feel this estimate is not enough, then you should choose an amount 3 of insurance which does not match our estimate. If you have questions about construction costs 4 in your area, please contact a contractor or an appraiser.” (see also Exhibit 1 attached to 5 Declaration of Brian Hunsaker (“Hunsaker Dec.”),¶¶ 9-10 as referenced in RJN.) Hunsaker’s 6 employee, Liz Evans, asked Plaintiff to review the 360 Value estimate and respond with any 7 changes. (Id.) Plaintiff never responded and never requested any increases in his policy limits. 8 (Id.) 9 After a wildfire destroyed the Property in 2017, Plaintiff contends he was underinsured 10 because of Hunsaker’s alleged misrepresentation in 2015 “that [Plaintiff] was amply insured in 11 the event of a disaster.” (FAC at p. 10, ¶ 49.) Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52nd Floor 12 B. The Policy Los Angeles, CA 90071 13 When Plaintiff first purchased the Policy in 2006, he signed and initialed an insurance 14 application. (Exhibit 6 (HUNS000257-261) attached to Wagner Dec.) Although the application 15 included an “Estimated Reconstruction Cost” estimate of $450,000, Plaintiff elected to purchase 16 a higher Coverage A (Dwelling) limits in the amount of $495,000. (Exhibit 6 at p. 17 HUNS000257.) With regard to Plaintiff’s selection of Policy limits, the application stated: 18 The Estimated Reconstruction Cost is based on the unique construction characteristics and geographic location of your dwelling. The Estimate is a guide 19 to assist you in determining coverage for your dwelling. It is your responsibility to choose the coverage limit that is right for you. (Exhibit 6 at p. 20 HUNS000257, bold added.) 21 Year-after-year, Plaintiff agreed to renew the Policy – usually with an increase in the 22 Coverage A and B limits. For instance, in 2015, Plaintiff received a Home Insurance Renewal 23 Offer dated July 14, 2015 with a Coverage A limit of $592,000, which was the same year that 24 Plaintiff received a 360Value estimate from Hunsaker in the amount of $502,000. (Exhibit 7 25 (KOOP 0338-0365) attached to Wagner Dec.) This Renewal Offer explained that any 26 reconstruction estimate provided “was an estimate, not a guarantee of reconstruction costs.” It 27 also reiterated what Plaintiff had acknowledged in his application – i.e., that it was Plaintiff’s 28 responsibility to select the amount of coverage. In this regard, the 2015 Renewal Offer stated: -4- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 Reconstruction Cost and Your Coverage A (Dwelling) Amount 2 Policy Number: 92677-29-87 3 This document contains important information about your insurance coverage. Please review this information carefully. 4 5 Do You Think You Have Enough Coverage? 6 At renewal your policy will provide $200 per square foot to rebuild your home. (This does not include any additional amount added by extension or endorsement 7 to your policy.) 8 When you first obtained your policy, Farmers® used an estimating program to calculate a reconstruction cost estimate for your home. This was an estimate, not 9 a guarantee of reconstruction costs. 10 For this renewal offer we have applied a reconstruction cost factor as part of the renewal process. Since we do not unilaterally reduce the Coverage A amount at 11 Gordon Rees Scully Mansukhani, LLP renewal, there will be no change in the Coverage A amount if application of the 633 West Fifth Street, 52nd Floor 12 factor would result in a decrease in the Coverage A amount. The chart below shows the amount for which we have offered to insure your home at renewal as Los Angeles, CA 90071 13 well as the Coverage A amount on your existing policy. We will calculate a new estimate, rather than apply the reconstruction factor, upon request or when you 14 notify us of changes to the features of your home. 15 Coverage A (Dwelling) Amount offered to insure your home at $592,000 16 Existing Coverage A (Dwelling) Amount: $564,000 17 Please review the next page to make sure the details about your home are correct, and let me know of any necessary changes. Changes to these details could result 18 in a change to the reconstruction cost estimate. Feel free to contact me at any 19 time if you want a new estimate calculated or if you want to make a change to the amount for which your home is insured. 20 *** 21 Do You Need Help? 22 As your Farmers Agent I am happy to help you with any questions you have. I 23 can provide guidance as to the coverage options available, but I cannot choose your coverage amounts for you. Ultimately, it is your responsibility to make sure 24 you have purchased sufficient insurance coverage to rebuild your home and replace your personal property. (Exhibit 7 at KOOP 0353-0354, underlining 25 added.) 26 27 28 -5- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 On July 13, 2016, Fire provided the next year’s Home Insurance Renewal Offer to 2 Plaintiff, which included an increase in limits to $636,000. (Exhibit 8 at KOOP 0366-0393 3 attached to Wagner Dec.) 4 On July 13, 2017 (a few months before the loss), Fire provided yet another year’s Home 5 Insurance Renewal Offer with a further limits increase to $649,000. (Exhibit 9 at KOOP 0394- 6 0418 attached to Wagner Dec.) Both of these proposals stated: (a) the reconstruction cost 7 estimate previously provided “was an estimate, not a guarantee of reconstruction costs”; and (b) 8 the agent Hunsaker cannot select the Policy’s limits; rather, it is Plaintiff’s responsibility to 9 select his own limits. (Exhibit 8 at KOOP 0381-0382; Exhibit 9 at KOOP 0405-0406.) 10 The Policy in effect from September 5, 2017 to September 5, 2018 (at the time of the 11 loss) provided four pertinent categories of insurance: Coverage A (Dwelling); Coverage B Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52nd Floor 12 (Separate Structures); Coverage C (Personal Property); and Coverage D (Loss of Use). (Exhibit Los Angeles, CA 90071 13 10 at FIRE-CLAIMS 0443 attached to Declaration of Jason Jones (“Jones Dec.”) as referenced 14 in RJN.) The Policy also included Extensions of Coverage, which provided coverage for certain 15 other expenses that arise in the context of a total loss, such as Debris Removal, and landscaping 16 replacement. Thus, the total limits of coverage available under the Policy at the time of the loss 17 were as follows: 18 Type of Property Insurance Description of Coverage Limits 19 Dwelling (Coverage A) Dwelling Coverage $649,000.00 20 Extended Replacement Cost (“ERC”) $162,250.00 21 (25% of Coverage A) 22 Building Ordinance or Law (“Code $64,900.00 Upgrades”) (10% of Coverage A) 23 Trees, Shrubs, Plants and Lawns (5% of $32,450.00 24 Coverage A) 25 Debris Removal (5% of Coverage A) $32,450.00 26 Separate Structures (Coverage B) Separate Structures Coverage $64,900.00 27 Code Upgrades (10% of Coverage B) $6,490.00 28 -6- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 Type of Property Insurance Description of Coverage Limits 2 Debris Removal (5% of Coverage B) $3,245.00 3 Personal Property (Coverage C) Personal Property (Contents) Coverage $486,750.00 4 Debris Removal (5% of Coverage C) $24,337.50 5 Loss of Use (Coverage D) Loss of Use aka Additional Living $259,600.00 6 Expense (“ALE”) Coverage 7 TOTAL AVAILABLE LIMITS $1,786,372.50 8 (Exhibit 10 at p. FIRE-CLAIMS 0443; Jones Dec. at pp. 2-3, ¶ 5.) 9 C. The Claim 10 On October 10, 2017, Plaintiff’s Dwelling and Separate Structures at the Property were 11 destroyed in the Tubbs Fire. Plaintiff submitted a claim to Fire under the Policy on October 11, Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52nd Floor 12 2017. (Jones Dec. at ¶ 6.) Los Angeles, CA 90071 13 On November 13, 2017, Fire’s assigned adjuster requested policy limits authority for 14 Plaintiff’s loss, including for Coverage A (Dwelling), Coverage B (Separate Structures), and 15 Coverage C (Personal Property). This request also sought limits authority for ERC, Code 16 Upgrades, Debris Removal, and for Trees, Shrubs, Plants and Lawns. (Exhibit 15 at FIRE- 17 CLAIMS 0954 attached to Jones Dec.) The request was granted. (Jones Dec. at p. 4, ¶ 12.) 18 D. Fire Denied Plaintiffs Requests To Reform The Policy 19 After Plaintiff’s claim for benefits had already been fully paid and closed, on September 20 19, 2019, Plaintiff asked that the Policy be “retroactively reformed” to provide “guaranteed 21 replacement costs.” (Exhibit 33 (FIRE-CLAIMS 0507-0516) attached to Jones Dec.) Plaintiff 22 claimed: “I was lulled into a false sense of security after being advised that the policy limits 23 selected for me were adequate.” (Id.) On September 25, 2019, Fire denied Plaintiff’s 24 reformation request. (Exhibit 34 (FIRE-CLAIMS 2207-2208) attached to Jones Dec.) 25 On July 16, 2020, Plaintiff’s counsel asked Fire to “reconsider its position and reform 26 [Plaintiff’s] policy to reflect actual costs to rebuild in Santa Rosa, California and the actual 27 replacement cost of his home.” (Exhibit 40 (FIRE-CLAIMS 2386) attached to Jones Dec.) On 28 -7- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 July 27, 2020, Fire refused counsel’s request. (Exhibit 41 (FIRE-CLAIMS 2273-2274) attached 2 to Jones Dec.) 3 E. The Litigation 4 Plaintiff filed a complaint in Sonoma County Superior Court on August 24, 2020. The 5 complaint asserted seven causes of action: (1) Breach of Contract; (2) Bad faith; (3) 6 Reformation; (4) Fraud; (5) Misrepresentation; (6) Negligence; (7) Violations of Business & 7 Professions Code § 17200. 8 On January 6, 2021, Plaintiff filed the FAC, which added Hunsaker as a defendant. Fire 9 answered the FAC on February 9, 2021. 10 On June 14, 2023, Hunsaker submitted a Declaration in support of his Opposition to 11 Plaintiff’s motion for summary judgment which stated: “I never made a representation to Mr. Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52nd Floor 12 Koop that the Subject Property would be ‘fully covered’ by the Policy in the event of a wildfire.” Los Angeles, CA 90071 13 (Hunsaker Dec., ¶ 4.) 14 III. BIFURCATION OF PLAINTIFF’S REFORMATION CLAIM IS APPROPRIATE 15 “A written contract is presumed to express the parties’ actual intention, and the party 16 seeking reformation bears the burden by clear and convincing evidence to overcome that 17 presumption.” (Bold added; R & B Auto Ctr., Inc. v. Farmers Grp., Inc. (2006) 140 Cal.App.4th 18 327, 382; Taff v. Atlas Assur. Co., Ltd. (1943) 58 Cal.App.2d 696, 702.) 19 Reformation is an equitable remedy that allows a Court to rewrite an insurance policy 20 “where, by reason of fraud, inequitable conduct or mutual mistake, the policy as written does not 21 express the actual and real agreement of the parties.” (American Sur. Co. of N.Y. v. Heise (1955) 22 136 Cal.App.2d 689, 695-696; Civil Code §§ 3399; 3401; Croskey, et al., Cal. Prac. Guide: Ins. 23 Litig. (TRG 2018) ¶ 5:111, p. 5-32.) 24 Code of Civil Procedure section 1048, subdivision (b) provides authority to bifurcate any 25 cause of action or issue from the remaining causes of action or issues in a case: 26 The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, 27 may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate 28 issue or of any number of causes of action or issues, preserving the -8- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 right of trial by jury required by the Constitution or a statute of this State or the United States. (Bold added.) 2 Code of Civil Procedure section 598 similarly provides, in pertinent part: 3 The court may, when the convenience of witnesses, the ends of 4 justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and 5 hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, 6 or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial 7 of any other issue or any part thereof in the case … (Bold added.) 8 The purpose of bifurcation is to avoid prejudice, and to avoid litigating issues which may 9 never need to be addressed. (See Trickey v. Superior Court (1967) 252 Cal.App.2d 650, 653.) 10 “It is well established that, in a case involving both legal and equitable issues, the trial 11 Gordon Rees Scully Mansukhani, LLP court may proceed to try the equitable issues first, without a jury … and that if the court’s 633 West Fifth Street, 52nd Floor 12 determination of those issues is also dispositive of the legal issues, nothing further remains to be Los Angeles, CA 90071 13 tried by a jury.” (Raedeke v. Gibralter Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671; Golden 14 West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 50.) Accordingly, where a case 15 involves both equitable and legal issues, a Court appropriately bifurcates the case so that the 16 equitable claim is tried first. (See Orange County Water Dist. V. MAG Aerospace (2017) 12 17 Cal.App.5th 229, 234.) 18 There is no question that reformation is an equitable claim. (Appalachian Ins. Co. v. 19 McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 19; Jones v. First American Title Ins. Co. 20 (2003) 107 Cal.App.4th 381, 388.) In contrast, the remaining claims pleaded in the Complaint 21 are legal claims: Breach of Contract, Bad Faith, Fraud, Misrepresentation, Negligence, and 22 Violations of Business & Professions Code § 17200. 23 To the extent Plaintiff is seeking to reform the Policy, judicial economy – as well as the 24 convenience of the Court and the parties – supports bifurcation so that Plaintiff’s reformation 25 claim is tried to the Court first. Bifurcation is also consistent with California’s “long-standing 26 ‘equity first’” rule. (See Orange County Water, supra, 12 Cal.App.5th at 234; see also Darbun 27 Enterprises, Inc. v. San Fernando Com. Hosp. (2015) 239 Cal.App.4th 399, 409.) 28 -9- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 The Court should be able to complete a bench trial on Plaintiff’s reformation claim within 2 two or three days. A reformation trial would likely require the Court to review advanced legal 3 briefing, review the policy materials, hear the competing testimony of Plaintiff and Hunsaker 4 regarding any assurances provided about the coverage and allowing the parties to provide closing 5 arguments. 6 If the Court reforms the Policy, the policy limits would be different than the limits 7 currently reflected on policy materials. At that point, Fire would have an opportunity to pay the 8 modified limits to Plaintiff, thereby complying with the new policy terms. If the Policy is 9 reformed and Fire is required to provide guaranteed replacement cost coverage, Plaintiff’s 10 current legal claims for breach of contract and bad faith would become moot and his alleged tort 11 damages would be eliminated. Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52nd Floor 12 There would not be any reason for the jury trial to proceed on Plaintiff’s legal claims Los Angeles, CA 90071 13 before the reformation claim is adjudicated by the Court. It would be a waste of the jury’s time 14 to prematurely adjudicate claims which may be entirely different or non-existent once the Court 15 addresses the reformation claim. 16 IV. CONCLUSION 17 For the foregoing reasons, Fire’s motion to bifurcate should be granted such that 18 Plaintiff’s equitable claim for reformation is tried to the Court first before any of the legal 19 claims. 20 21 Dated: September 20, 2023 GORDON REES SCULLY MANSUKHANI, LLP 22 By: 23 Peter Schwartz Christopher R. Wagner 24 David L. Jones Steven R. Inouye 25 Attorneys for Defendant FIRE INSURANCE 26 EXCHANGE 27 28 -10- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP 633 West 3 Fifth Street, 52nd floor, Los Angeles, CA 90071. On September 20, 2023, I served the within documents: 4 DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND 5 MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION 6 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of California at Los Angeles, 7 addressed as set forth below. 8 by transmitting via E-Mail the document(s) listed above to the E-Mail address(s) set forth below on this date before 5:00 p.m. 9 Glenn R. Kantor Albert M. T. Finch, III 10 Timothy Rozelle ERICKSSEN ARBUTHNOT Sharee Rowe 210 North Fourth Street, Suite 350 11 Gordon Rees Scully Mansukhani, LLP KANTOR & KANTOR, LLP San Jose, CA 95112 633 West Fifth Street, 52nd Floor 19839 Nordhoff Street (408) 286/0880 / Fax: (408) 286-0337 12 Northridge, CA 91324 afinch@ericksenarbuthnot.com Los Angeles, CA 90071 (818) 886-2525 / Fax: (818) 350-6272 kokasaki@ericksenarbuthnot.com 13 gkantor@kantorlaw.net Attorneys for Defendant, BRIAN srowe@kantorlaw.net HUNSAKER 14 trozelle@kantorlaw.net Attorneys for Plaintiff, GARY KOOP 15 Stacy Monahan Tucker 16 Monahan Tucker Law 4241 Woodinville-Duvall Road, Suite 382 17 Woodinville, WA 98072 (206) 486-3553 / Fax: 206- 339-7155 18 smtucker@mtlawpc.com cspencer@mtlawpc.com 19 Attorneys for Plaintiff, GARY KOOP 20 I am readily familiar with the firm’s practice of collection and processing correspondence 21 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 22 motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 23 I declare under penalty of perjury under the laws of the State of California that the above 24 is true and correct. 25 Executed on September 20, 2023 at Los Angeles, California. 26 27 Jennifer Odell 28 -11- DEFENDANT FIRE INSURANCE EXCHANGE’S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF’S CLAIM FOR REFORMATION