Preview
Stacy M. Tucker (SBN 218942)
1 smtucker@mtlawpc.com
MONAHAN TUCKER LAW, PC
2 14241 NE Woodinville-Duvall Road
Suite 382
3 Woodinville, WA 98072
T: (206) 486-3553
4 F: (206) 339-7155
5 Lisa S. Kantor (SBN 110678)
lkantor@kantorlaw.net
6 KANTOR & KANTOR, LLP
19839 Nordhoff Street
7 Northridge, CA 91324
T: (818) 886-2525
8 F: (818) 350-6272
9 Attorneys for Plaintiff, Gary Koop
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF SONOMA
14241 NE Woodinville-Duvall Road, Suite 382
12
GARY KOOP, Case No. SCV-266944
MONAHAN TUCKER LAW, P.C.
13
Woodinville, WA 98072
Plaintiff, [Assigned to Hon. Oscar A. Pardo]
(866) 823-8275
14
15 vs. PLAINTIFF’S OPPOSITION TO
FARMERS’ MOTION TO BIFURCATE
16 FIRE INSURANCE EXCHANGE, dba TRIAL
FARMERS INSURANCE GROUP, BRIAN
17 HUNSAKER,
18 Defendants.
Date: November 1, 2023
19 Time: 3:00 p.m.
Dept.: 19
20
21 [Filed concurrently with Request for Judicial
Notice and Exhibits 1-3]
22
23 Action Filed: August 24, 2020
Trial Date: November 17, 2023
24
25
26
27
28
PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE TRIAL
1 I. INTRODUCTION
2 Defendant Farmers’ Motion seeks to bifurcate the pending trial in this matter in a way that
3 provides no benefit to judicial economy, efficiency, or the convenience of the witnesses – the three
4 prongs on which such a request must be evaluated. This case involves a cause of action against Fire
5 Insurance Exchange (“Farmers”) for breach of contract. It also includes, in the alternative, a cause
6 of action for reformation in the event the Court or jury decline to find a breach of the contract. In
7 addition to the contract dispute, Plaintiff has brought causes of action against Farmers for breach of
8 the implied covenant of good faith and fair dealing, fraud, misrepresentation, violations of Bus. &
9 Prof. Code 17200 et seq, and negligence. Additionally, Plaintiff has causes of action against Farmers
10 agent Brian Hunsaker for professional negligence, fraud, and misrepresentation. All of these other
11 causes of action will need to be heard by a jury regardless of a decision on the reformation cause of
14241 NE Woodinville-Duvall Road, Suite 382
12 action.
MONAHAN TUCKER LAW, P.C.
13 If the Court finds that Farmers must reform the insurance contract to conform with the intent
Woodinville, WA 98072
(866) 823-8275
14 of the parties, Farmers takes the remarkable position that all other causes of action against both
15 defendants will simply disappear. Unfortunately for Farmers, those other causes of action do exist
16 and must be adjudicated. While Farmers is correct that reformation is a cause of action brought in
17 equity, breach of contract is not. Farmers has already lost its motion for summary judgment on the
18 breach of contract issue, as well as every other cause of action against it. If the Court does not grant
19 Plaintiff’s motion for summary judgment and find that Farmers breached the contract, a jury must
20 determine whether or not Farmers breached the Policy before reformation is at issue. If either the
21 Court or the jury find that the contract was breached, then the reformation cause of action becomes
22 moot. Additionally, the remaining tort allegations against both Farmers and Hunsaker remain and
23 must be considered by a jury. Those allegations will not be resolved by Farmers being ordered by
24 the Court to pay the money it owes.
25 II. FACTS
26 Farmers profoundly misstates the basis of Plaintiff’s suit against it. Plaintiff does not seek
27 reformation for guaranteed replacement coverage. Plaintiff asserts that Farmers breached the
28 insurance contract it has with Plaintiff by failing to follow its own written underwriting policies and
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PLAINTIFF GARY KOOP’S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT AGAINST FIRE INSUARNCE EXCHANGE
1 procedures when calculating the amount of insurance coverage as part of the Policy’s requirement
2 that Plaintiff accept coverage for 100% of replacement cost as determined by Farmers. Despite
3 Farmers’ assertions to the contrary, this is not a novel position, California appellate courts have
4 already held that an insurer breaches the contract if it fails to provide coverage as calculated per its
5 own underwriting requirements. The relevant facts to bifurcation are as follows.
6 Plaintiff has alleged breach of contract against Farmers. (First Amended Complaint (“FAC”)
7 5:13-27, 6:1-13.) Because Plaintiff believes that Farmers was well aware of its errors and culpability,
8 but put its own interests above that of its insured and refused to provide the coverage it should have
9 calculated if it followed its written policies and procedures, Plaintiff also alleged breach of the
10 implied covenant of good faith and fair dealing. (FAC 6:14-27, 7, 8:1-15.)
11 If the jury does not find breach of contract, Plaintiff alleges, in the alternative, reformation,
14241 NE Woodinville-Duvall Road, Suite 382
12 where both parties intended for Farmers to adhere to its written underwriting policies and procedures
MONAHAN TUCKER LAW, P.C.
13 and for Plaintiff to have insurance at the amount determined by the correct application of those
Woodinville, WA 98072
(866) 823-8275
14 policies and procedures. (FAC 8:16-27, 9:1-2.) Plaintiff also alleges breach of the implied covenant
15 of good faith and fair dealing related to the reformation. Farmers has detailed written policies and
16 procedures related to reformation, which explain at great length the investigation that must occur in
17 the event of a request for reformation. But Farmers chose not to investigate, and to simply accept
18 its agent’s statement that he did not know whether or not he made an error as evidence that
19 reformation was not required. That is an independent basis for a jury to award punitive damages.
20 (Id., 6:14-27, 7, 8:1-15.)
21 Plaintiff has also alleged negligence against Hunsaker and Farmers for a number of failures
22 in Hunsaker’s duty of due care to Plaintiff: for his failure to inspect Plaintiff’s home; his failure to
23 give Plaintiff the opportunity to have the interior inspected as required under Farmers’ procedures;
24 for his false statements that he had previously “visited” the home when insuring it for the prior
25 owner; for his failure to properly migrate Plaintiff’s Policy to the new 360Value underwriting
26 platform in 2013; for his failure to provide Plaintiff with information about the quality grade
27 definitions when Plaintiff inquired about his coverages in 2013 and 2015; for his failure to adhere
28 to the requirements of §2695.183; for his blatantly false statements that “all was okay” when
2
PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE
1 Plaintiff followed the plain language of the Policy and asked Hunsaker if he was sufficiently insured;
2 and for Hunsaker’s false statement to Farmers that Hunsaker “knew” Plaintiff’s property because
3 he had “visited” it before and thus could objectively determine the quality grade. (Id., 12:11-27, 1-
4 6.) Of course, where Hunsaker is Farmers’ agent, if the jury finds that Farmers ratified that conduct
5 – by learning of it yet still declining to reform the Policy, for example – Farmers would be equally
6 culpable.
7 Plaintiff also alleged fraud and misrepresentation against both Farmers and Hunsaker. (Id.,
8 9:3-27, 10-11, 12:1-10.) The bases for those allegations are similar to the ones listed above.
9 Hunsaker and Farmers failed to inspect Plaintiff’s home or tell him that it was a Farmers requirement
10 that it be inspected, they intentionally omitted providing that information to Plaintiff and Plaintiff
11 relied on their representations in determining that he had provided sufficient information to obtain
14241 NE Woodinville-Duvall Road, Suite 382
12 adequate insurance. Hunsaker and Farmers concealed from Plaintiff that they failed to properly
MONAHAN TUCKER LAW, P.C.
13 migrate his Policy in 2013 to the 360Value platform and new policy form, Plaintiff relied on them
Woodinville, WA 98072
(866) 823-8275
14 to inform him of any information they needed to adequately insure his home and was injured by his
15 reliance. Plaintiff inquired about his coverages in 2013 and did not receive a replacement cost
16 estimate when discussing them, which under §2695.183 constitutes a per se misleading statement.
17 Plaintiff inquired about his coverages in 2015 and did receive a replacement cost estimate, but one
18 that lacked required definitions to inform him of what he was reading, which under §2695.183
19 constitutes a per se misleading statement. Hunsaker falsely told Farmers during the “investigation”
20 of Plaintiff’s request for reformation that Hunsaker “knew” the property because he had “visited” it
21 previously. Farmers falsely told Plaintiff that there was “insufficient evidence” of an error on
22 Farmers’ part that would support reformation, when in fact Farmers failed to follow its own policies
23 and procedures in reviewing Plaintiff’s allegations. Farmers ratified Hunsaker’s fraudulent and
24 misleading statements when it learned of them in 2022 but continued to refuse to reform the policy
25 and instead shifted its argument to asserting that Plaintiff should have caught Farmers’ errors, errors
26 about which he could not possibly have known. In addition to Plaintiff’s entitlement to damages
27 under the “benefit of the bargain” rule, under California Civil Code 3294, punitive damages are
28 available for fraud.
3
PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE
1 Finally, Plaintiff alleged against Farmers violation of Bus. &. Prof. Code §17200 et seq. (Id.,
2 13:7-28, 14, 15:1-4.)
3 On February 2, 2022, this Court held that all of Plaintiff’s causes of action against Farmers
4 could proceed to a jury trial. (Request for Judicial Notice (“RJN”) Ex. 1.) On October 27, 2022, the
5 Court reached the same conclusion about all claims against Hunsaker, holding, “Credibility
6 determinations are for the trier of fact, at trial, not now.” (RJN Ex. 2, 2:15-17)
7 III. LEGAL ARGUMENT
8 Farmers brings its Motion under Cal. Code Civ. Proc. §§598 and 1048. Under §598,
9 bifurcation of a trial may be an option “when convenience of witnesses, the ends of justice, or the
10 economy and efficiency of handling the litigation would be promoted thereby.” Similarly, under
11 §1048, bifurcation may be ordered “in furtherance of convenience or to avoid prejudice, or when
14241 NE Woodinville-Duvall Road, Suite 382
12 separate trials will be conducive to expedition and economy.”
MONAHAN TUCKER LAW, P.C.
13 Farmers does not allege any prejudice in its Motion and provides no declaration alleging any
Woodinville, WA 98072
(866) 823-8275
14 prejudice to Farmers. Therefore, the only question before the Court is whether the convenience of
15 the witnesses or the Court, or judicial economy, will be furthered by bifurcation.
16 A. FARMERS’ MOTION FAILS TO DEMONSTRATE THAT BIFURCATION
17 COULD RESULT IN THE RESOLUTION OF THE CASE
18 Farmers takes the remarkable position that, if it is ordered by the Court to pay the money it
19 owes to Plaintiff, that all additional causes of action against both defendants will simply resolve and
20 the litigation will end. Farmers provides no legal basis for its assertion, because it cannot. Plaintiff
21 has also brought causes of action against Farmers for breach of contract, breach of the implied
22 covenant of good faith and fair dealing, fraud, misrepresentation, and negligence. Plaintiff also has
23 pending causes of action against Brian Hunsaker, Farmers’ agent, for fraud, misrepresentation and
24 negligence. None of these will be resolved by reformation.
25 Farmers fails to acknowledge that bad faith can be found for failure to reform a contract if
26 the insurer failed to properly investigate the request and knew, or should have known, that
27 reformation was required due to its errors. Farmers does not even mention the fraud and
28 misrepresentation causes of action, for which punitive damages can be awarded. It does not
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PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE
1 reference the emotional distress for which it is responsible, or the damages that Plaintiff has
2 sustained in having to bring suit against Hunsaker because Farmers refused to perform its duty, and
3 the fees Plaintiff incurred in that suit, for which Farmers can be held responsible under the doctrine
4 of the tort of another. Farmers also ignores that, if the jury finds breach of contract and associated
5 bad faith, it is responsible for the Brandt fees associated with that cause of action.
6 B. FARMERS’ MOTION FAILS TO ADDRESS THAT REFORMATION IS
7 PLED IN THE ALTERNATIVE
8 The operative complaint pleads reformation in the alternative. If this Court, or a jury,
9 determines that Farmers breached the contract by failing to follow its own policies and procedures
10 after it required Plaintiff to accept its estimate of replacement cost, then the question of reformation
11 becomes moot. This Court has already denied Farmers’ motion for summary judgment on the
14241 NE Woodinville-Duvall Road, Suite 382
12 question of bad faith, finding the legal arguments sound and that Farmers failed to provide facts
MONAHAN TUCKER LAW, P.C.
13 sufficient to controvert the claims. Thus, if the Court denies Plaintiff’s pending motion for summary
Woodinville, WA 98072
(866) 823-8275
14 judgment on the claim, it must go to a jury for resolution. Any other result denies Plaintiff the right
15 to have his breach of contract cause of action determined by a jury. If the Court orders reformation,
16 it still does not answer the question of whether or not the contract itself was breached, and whether
17 or not that breach was known. By seeking to have reformation heard first, Farmers asks the Court
18 to hold a trial on the same issues twice.
19 C. FARMERS’ MOTION IGNORES THAT THERE IS NO JUDICIAL
20 ECONOMY TO BIFURCATION IN THIS INSTANCE
21 Farmers asserts, without any evidence or legal argument, that resolution of the equitable
22 cause of action will resolve all legal causes of action pending against Farmers. Bifurcation resolves
23 issues only when a finding against the plaintiff in the equitable cause of action eliminates all other
24 causes of action. Farmers acknowledges that that is not the case here. Instead, Farmers baselessly
25 asserts that, if reformation is ordered, Plaintiff’s additional causes of action disappear. But the other
26 causes of action also have unique damages available beyond what reformation would award. Breach
27 of contract opens the door to bad faith and punitive damages if the Court determines that the cause
28 of action is not available for reformation. Major v. W. Home Ins. Co., 169 Cal. App. 4th 1197, 87
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PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE
1 Cal. Rptr. 3d 556 (2009), as modified on denial of reh'g (Jan. 30, 2009). If reformation is ordered,
2 Plaintiff will seek to have breach of the implied covenant of good faith and fair dealing found against
3 Farmers for its knowing and intentional refusal to investigate the bases of the request for
4 reformation.
5 Outside of the breach of contract/reformation/bad faith question, numerous causes of action
6 under law will still remain and must be heard by a jury. There are two defendants with causes of
7 action involving the same facts and witnesses. Holding two separate trials will not serve the cause
8 of judicial efficiency or witness convenience. The resolution of Hunsaker’s causes of action will
9 also affect the resolution of Farmers’, as his negligence and fraud may be imputed to Farmers, who
10 ratified it. Farmers provides no arguments to support its claim that, if reformation is ordered, it
11 cannot still be held responsible for fraud, misrepresentation and negligence. Those causes of action
14241 NE Woodinville-Duvall Road, Suite 382
12 permit attorneys fees under the doctrine of the tort of another, emotional distress and punitive
MONAHAN TUCKER LAW, P.C.
13 damages.
Woodinville, WA 98072
(866) 823-8275
14 California encourages bifurcation only if it supports judicial efficiency. See Cohn v Bugas
15 (1974) Cal. App.3d 381,385 (citing the Judicial Council Report as stating that the purpose of
16 bifurcation is the “avoidance of the waste of time and money caused by the unnecessary trial of
17 damage questions in cases where the liability issues is resolved against the plaintiff”); Trickey v Sup
18 Ct. (1967) 252 Cal. App. 2d 650, 653 (same). Here, all of the witnesses for the reformation cause of
19 action will be the same as for the causes of action brought in law. There is no benefit to the Court
20 or the witnesses in bifurcation, it simply doubles the amount of time they must spend on this matter,
21 as well as the money all parties will spend on trial.
22 D. THIS COURT HAS ALREADY DENIED FARMERS’ IDENTICAL
23 MOTION IN WEISS
24 In Weiss v Fire Insurance Exchange, Sonoma Superior Court, SCV-263540, this Court
25 recently denied Farmers’ identical motion, brought by the same counsel. (Request for Judicial
26 Notice, Ex. 3.) In Weiss, in addition to the reformation cause of action, the plaintiff also had a
27 negligence cause of action pending against the agent. As in this instance, Farmers argued that if
28 reformation were ordered, there would be no cause of action remaining against the agent for
6
PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE
1 negligence. The Court held, “In light of the right to a jury trial on the negligence cause of action and
2 the risk that witnesses will have to repeat their testimony if the case is bifurcated, the Court finds
3 that neither bifurcation nor severance is appropriate under the standards set forth in CCP §§598 and
4 1048. Based on the foregoing, the Motion is DENIED.” (RJN Ex. 3, page 3.)
5 The Court in Weiss specifically noted:
6
The Court is unpersuaded that judicial economy would be served by bifurcation or
7 severance in light of Defendants’ failure to support their contention that a ruling
favorable to Plaintiffs on the reformation claim will obviate a claim for negligence
8 and the fact that Defendants do not even contend that a ruling adverse to Plaintiffs
on the reformation claim would obviate or limit the scope of the trial on the
9 negligence claim.
10 (RJN Ex. 3, p. 2.) As in Weiss, Farmers has ignored the fact that numerous other causes of
11 action will remain in the event that reformation is granted. Further, unlike Weiss, in this action
14241 NE Woodinville-Duvall Road, Suite 382
12 reformation is pled in the alternative to breach of contract. There is no benefit to deciding the
MONAHAN TUCKER LAW, P.C.
13 reformation cause of action while the breach of contract action is pending, as Plaintiff is entitled to
Woodinville, WA 98072
(866) 823-8275
14 a jury trial on that cause of action.
15 IV. CONCLUSION
16 Where Farmers has failed to demonstrate any way in which judicial economy is served by
17 bifurcation, and this Court has previously ruled on and denied Farmers’ identical arguments for
18 bifurcation in Weiss, this Motion for Bifurcation should also be denied.
19
20
21 DATED: October 19, 2023 MONAHAN TUCKER LAW, P.C.
22 By: /s/Stacy M. Tucker
Stacy Monahan Tucker
23 Attorneys for Plaintiff,
GARY KOOP
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7
PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE
1 PROOF OF SERVICE
I, Carolyn Spencer, declare as follows:
2
I am employed in the County of Rohnert Park, State of California. I am over the age of 18
3 and not a party to the within action; my business address is 14241 NE Woodinville-Duvall Road,
Suite 382, Woodinville, WA 98072.
4
On October 19, 2023, I served the foregoing document described as PLAINTIFF GARY
5 KOOP’S OPPOSITION TO FIE’S MOTION TO BIFURCATE TRIAL in this action by
serving a true copy thereof addressed as follows:
6
Christopher R. Wagner, Esq. cwagner@grsm.com
7 David Jones, Esq. djones@grsm.com
Steven Inouye, Esq. sinouye@grsm.com
8 GORDON REES SCULLY MANSUKHANI, ilopez@grsm.com
LLP jodell@grsm.com
9 633 West Fifth Street, 52nd floor
Los Angeles, CA 90071
10 Attorneys for Defendant Fire Insurance
Exchange, dba Farmers Insurance
11 Group
14241 NE Woodinville-Duvall Road, Suite 382
12 Albert M. T. Finch, III, Esq. tfinch@fgppr.com
Jason Deng, Esq. jdeng@fgppr.com
MONAHAN TUCKER LAW, P.C.
13 FORAN GLENNON kokasaki@fgppr.com
Woodinville, WA 98072
1741 Technology Drive, Suite 250
(866) 823-8275
14 San Jose, CA 95110
Attorneys for Defendant Brian Hunsaker
15
Glenn R. Kantor gkantor@kantorlaw.net
16 Lisa S. Kantor lkantor@kantorlaw.net
Tim Rozelle trozelle@kantorlaw.net
17 KANTOR & KANTOR, LLP
19839 Nordhoff Street
18 Northridge, CA 91324 Co-Counsel for Plaintiff, Gary Koop
19
[X] BY E-MAIL SERVICE: I caused a copy of the document(s) to be sent from e-mail address
20 cspencer@kantorlaw.net to the persons at the e-mail addresses listed above. I did not receive,
within a reasonable time after the transmission, any electronic message or other indication that the
21 transmission was unsuccessful.
22
[x] STATE: I declare under penalty of perjury under the Laws of the State of California that the
23 foregoing is true and correct.
24
I declare under penalty of perjury under the laws of the State of California that the above is
25 true and correct. Executed on October 19, 2023, Rohnert Park, California.
26 /s/Carolyn Spencer
Carolyn Spencer
27
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PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE
Preview
Stacy M. Tucker (SBN 218942) 1 smtucker@mtlawpc.com MONAHAN TUCKER LAW, PC 2 14241 NE Woodinville-Duvall Road Suite 382 3 Woodinville, WA 98072 T: (206) 486-3553 4 F: (206) 339-7155 5 Lisa S. Kantor (SBN 110678) lkantor@kantorlaw.net 6 KANTOR & KANTOR, LLP 19839 Nordhoff Street 7 Northridge, CA 91324 T: (818) 886-2525 8 F: (818) 350-6272 9 Attorneys for Plaintiff, Gary Koop 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SONOMA 14241 NE Woodinville-Duvall Road, Suite 382 12 GARY KOOP, Case No. SCV-266944 MONAHAN TUCKER LAW, P.C. 13 Woodinville, WA 98072 Plaintiff, [Assigned to Hon. Oscar A. Pardo] (866) 823-8275 14 15 vs. PLAINTIFF’S OPPOSITION TO FARMERS’ MOTION TO BIFURCATE 16 FIRE INSURANCE EXCHANGE, dba TRIAL FARMERS INSURANCE GROUP, BRIAN 17 HUNSAKER, 18 Defendants. Date: November 1, 2023 19 Time: 3:00 p.m. Dept.: 19 20 21 [Filed concurrently with Request for Judicial Notice and Exhibits 1-3] 22 23 Action Filed: August 24, 2020 Trial Date: November 17, 2023 24 25 26 27 28 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE TRIAL 1 I. INTRODUCTION 2 Defendant Farmers’ Motion seeks to bifurcate the pending trial in this matter in a way that 3 provides no benefit to judicial economy, efficiency, or the convenience of the witnesses – the three 4 prongs on which such a request must be evaluated. This case involves a cause of action against Fire 5 Insurance Exchange (“Farmers”) for breach of contract. It also includes, in the alternative, a cause 6 of action for reformation in the event the Court or jury decline to find a breach of the contract. In 7 addition to the contract dispute, Plaintiff has brought causes of action against Farmers for breach of 8 the implied covenant of good faith and fair dealing, fraud, misrepresentation, violations of Bus. & 9 Prof. Code 17200 et seq, and negligence. Additionally, Plaintiff has causes of action against Farmers 10 agent Brian Hunsaker for professional negligence, fraud, and misrepresentation. All of these other 11 causes of action will need to be heard by a jury regardless of a decision on the reformation cause of 14241 NE Woodinville-Duvall Road, Suite 382 12 action. MONAHAN TUCKER LAW, P.C. 13 If the Court finds that Farmers must reform the insurance contract to conform with the intent Woodinville, WA 98072 (866) 823-8275 14 of the parties, Farmers takes the remarkable position that all other causes of action against both 15 defendants will simply disappear. Unfortunately for Farmers, those other causes of action do exist 16 and must be adjudicated. While Farmers is correct that reformation is a cause of action brought in 17 equity, breach of contract is not. Farmers has already lost its motion for summary judgment on the 18 breach of contract issue, as well as every other cause of action against it. If the Court does not grant 19 Plaintiff’s motion for summary judgment and find that Farmers breached the contract, a jury must 20 determine whether or not Farmers breached the Policy before reformation is at issue. If either the 21 Court or the jury find that the contract was breached, then the reformation cause of action becomes 22 moot. Additionally, the remaining tort allegations against both Farmers and Hunsaker remain and 23 must be considered by a jury. Those allegations will not be resolved by Farmers being ordered by 24 the Court to pay the money it owes. 25 II. FACTS 26 Farmers profoundly misstates the basis of Plaintiff’s suit against it. Plaintiff does not seek 27 reformation for guaranteed replacement coverage. Plaintiff asserts that Farmers breached the 28 insurance contract it has with Plaintiff by failing to follow its own written underwriting policies and 1 PLAINTIFF GARY KOOP’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST FIRE INSUARNCE EXCHANGE 1 procedures when calculating the amount of insurance coverage as part of the Policy’s requirement 2 that Plaintiff accept coverage for 100% of replacement cost as determined by Farmers. Despite 3 Farmers’ assertions to the contrary, this is not a novel position, California appellate courts have 4 already held that an insurer breaches the contract if it fails to provide coverage as calculated per its 5 own underwriting requirements. The relevant facts to bifurcation are as follows. 6 Plaintiff has alleged breach of contract against Farmers. (First Amended Complaint (“FAC”) 7 5:13-27, 6:1-13.) Because Plaintiff believes that Farmers was well aware of its errors and culpability, 8 but put its own interests above that of its insured and refused to provide the coverage it should have 9 calculated if it followed its written policies and procedures, Plaintiff also alleged breach of the 10 implied covenant of good faith and fair dealing. (FAC 6:14-27, 7, 8:1-15.) 11 If the jury does not find breach of contract, Plaintiff alleges, in the alternative, reformation, 14241 NE Woodinville-Duvall Road, Suite 382 12 where both parties intended for Farmers to adhere to its written underwriting policies and procedures MONAHAN TUCKER LAW, P.C. 13 and for Plaintiff to have insurance at the amount determined by the correct application of those Woodinville, WA 98072 (866) 823-8275 14 policies and procedures. (FAC 8:16-27, 9:1-2.) Plaintiff also alleges breach of the implied covenant 15 of good faith and fair dealing related to the reformation. Farmers has detailed written policies and 16 procedures related to reformation, which explain at great length the investigation that must occur in 17 the event of a request for reformation. But Farmers chose not to investigate, and to simply accept 18 its agent’s statement that he did not know whether or not he made an error as evidence that 19 reformation was not required. That is an independent basis for a jury to award punitive damages. 20 (Id., 6:14-27, 7, 8:1-15.) 21 Plaintiff has also alleged negligence against Hunsaker and Farmers for a number of failures 22 in Hunsaker’s duty of due care to Plaintiff: for his failure to inspect Plaintiff’s home; his failure to 23 give Plaintiff the opportunity to have the interior inspected as required under Farmers’ procedures; 24 for his false statements that he had previously “visited” the home when insuring it for the prior 25 owner; for his failure to properly migrate Plaintiff’s Policy to the new 360Value underwriting 26 platform in 2013; for his failure to provide Plaintiff with information about the quality grade 27 definitions when Plaintiff inquired about his coverages in 2013 and 2015; for his failure to adhere 28 to the requirements of §2695.183; for his blatantly false statements that “all was okay” when 2 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE 1 Plaintiff followed the plain language of the Policy and asked Hunsaker if he was sufficiently insured; 2 and for Hunsaker’s false statement to Farmers that Hunsaker “knew” Plaintiff’s property because 3 he had “visited” it before and thus could objectively determine the quality grade. (Id., 12:11-27, 1- 4 6.) Of course, where Hunsaker is Farmers’ agent, if the jury finds that Farmers ratified that conduct 5 – by learning of it yet still declining to reform the Policy, for example – Farmers would be equally 6 culpable. 7 Plaintiff also alleged fraud and misrepresentation against both Farmers and Hunsaker. (Id., 8 9:3-27, 10-11, 12:1-10.) The bases for those allegations are similar to the ones listed above. 9 Hunsaker and Farmers failed to inspect Plaintiff’s home or tell him that it was a Farmers requirement 10 that it be inspected, they intentionally omitted providing that information to Plaintiff and Plaintiff 11 relied on their representations in determining that he had provided sufficient information to obtain 14241 NE Woodinville-Duvall Road, Suite 382 12 adequate insurance. Hunsaker and Farmers concealed from Plaintiff that they failed to properly MONAHAN TUCKER LAW, P.C. 13 migrate his Policy in 2013 to the 360Value platform and new policy form, Plaintiff relied on them Woodinville, WA 98072 (866) 823-8275 14 to inform him of any information they needed to adequately insure his home and was injured by his 15 reliance. Plaintiff inquired about his coverages in 2013 and did not receive a replacement cost 16 estimate when discussing them, which under §2695.183 constitutes a per se misleading statement. 17 Plaintiff inquired about his coverages in 2015 and did receive a replacement cost estimate, but one 18 that lacked required definitions to inform him of what he was reading, which under §2695.183 19 constitutes a per se misleading statement. Hunsaker falsely told Farmers during the “investigation” 20 of Plaintiff’s request for reformation that Hunsaker “knew” the property because he had “visited” it 21 previously. Farmers falsely told Plaintiff that there was “insufficient evidence” of an error on 22 Farmers’ part that would support reformation, when in fact Farmers failed to follow its own policies 23 and procedures in reviewing Plaintiff’s allegations. Farmers ratified Hunsaker’s fraudulent and 24 misleading statements when it learned of them in 2022 but continued to refuse to reform the policy 25 and instead shifted its argument to asserting that Plaintiff should have caught Farmers’ errors, errors 26 about which he could not possibly have known. In addition to Plaintiff’s entitlement to damages 27 under the “benefit of the bargain” rule, under California Civil Code 3294, punitive damages are 28 available for fraud. 3 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE 1 Finally, Plaintiff alleged against Farmers violation of Bus. &. Prof. Code §17200 et seq. (Id., 2 13:7-28, 14, 15:1-4.) 3 On February 2, 2022, this Court held that all of Plaintiff’s causes of action against Farmers 4 could proceed to a jury trial. (Request for Judicial Notice (“RJN”) Ex. 1.) On October 27, 2022, the 5 Court reached the same conclusion about all claims against Hunsaker, holding, “Credibility 6 determinations are for the trier of fact, at trial, not now.” (RJN Ex. 2, 2:15-17) 7 III. LEGAL ARGUMENT 8 Farmers brings its Motion under Cal. Code Civ. Proc. §§598 and 1048. Under §598, 9 bifurcation of a trial may be an option “when convenience of witnesses, the ends of justice, or the 10 economy and efficiency of handling the litigation would be promoted thereby.” Similarly, under 11 §1048, bifurcation may be ordered “in furtherance of convenience or to avoid prejudice, or when 14241 NE Woodinville-Duvall Road, Suite 382 12 separate trials will be conducive to expedition and economy.” MONAHAN TUCKER LAW, P.C. 13 Farmers does not allege any prejudice in its Motion and provides no declaration alleging any Woodinville, WA 98072 (866) 823-8275 14 prejudice to Farmers. Therefore, the only question before the Court is whether the convenience of 15 the witnesses or the Court, or judicial economy, will be furthered by bifurcation. 16 A. FARMERS’ MOTION FAILS TO DEMONSTRATE THAT BIFURCATION 17 COULD RESULT IN THE RESOLUTION OF THE CASE 18 Farmers takes the remarkable position that, if it is ordered by the Court to pay the money it 19 owes to Plaintiff, that all additional causes of action against both defendants will simply resolve and 20 the litigation will end. Farmers provides no legal basis for its assertion, because it cannot. Plaintiff 21 has also brought causes of action against Farmers for breach of contract, breach of the implied 22 covenant of good faith and fair dealing, fraud, misrepresentation, and negligence. Plaintiff also has 23 pending causes of action against Brian Hunsaker, Farmers’ agent, for fraud, misrepresentation and 24 negligence. None of these will be resolved by reformation. 25 Farmers fails to acknowledge that bad faith can be found for failure to reform a contract if 26 the insurer failed to properly investigate the request and knew, or should have known, that 27 reformation was required due to its errors. Farmers does not even mention the fraud and 28 misrepresentation causes of action, for which punitive damages can be awarded. It does not 4 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE 1 reference the emotional distress for which it is responsible, or the damages that Plaintiff has 2 sustained in having to bring suit against Hunsaker because Farmers refused to perform its duty, and 3 the fees Plaintiff incurred in that suit, for which Farmers can be held responsible under the doctrine 4 of the tort of another. Farmers also ignores that, if the jury finds breach of contract and associated 5 bad faith, it is responsible for the Brandt fees associated with that cause of action. 6 B. FARMERS’ MOTION FAILS TO ADDRESS THAT REFORMATION IS 7 PLED IN THE ALTERNATIVE 8 The operative complaint pleads reformation in the alternative. If this Court, or a jury, 9 determines that Farmers breached the contract by failing to follow its own policies and procedures 10 after it required Plaintiff to accept its estimate of replacement cost, then the question of reformation 11 becomes moot. This Court has already denied Farmers’ motion for summary judgment on the 14241 NE Woodinville-Duvall Road, Suite 382 12 question of bad faith, finding the legal arguments sound and that Farmers failed to provide facts MONAHAN TUCKER LAW, P.C. 13 sufficient to controvert the claims. Thus, if the Court denies Plaintiff’s pending motion for summary Woodinville, WA 98072 (866) 823-8275 14 judgment on the claim, it must go to a jury for resolution. Any other result denies Plaintiff the right 15 to have his breach of contract cause of action determined by a jury. If the Court orders reformation, 16 it still does not answer the question of whether or not the contract itself was breached, and whether 17 or not that breach was known. By seeking to have reformation heard first, Farmers asks the Court 18 to hold a trial on the same issues twice. 19 C. FARMERS’ MOTION IGNORES THAT THERE IS NO JUDICIAL 20 ECONOMY TO BIFURCATION IN THIS INSTANCE 21 Farmers asserts, without any evidence or legal argument, that resolution of the equitable 22 cause of action will resolve all legal causes of action pending against Farmers. Bifurcation resolves 23 issues only when a finding against the plaintiff in the equitable cause of action eliminates all other 24 causes of action. Farmers acknowledges that that is not the case here. Instead, Farmers baselessly 25 asserts that, if reformation is ordered, Plaintiff’s additional causes of action disappear. But the other 26 causes of action also have unique damages available beyond what reformation would award. Breach 27 of contract opens the door to bad faith and punitive damages if the Court determines that the cause 28 of action is not available for reformation. Major v. W. Home Ins. Co., 169 Cal. App. 4th 1197, 87 5 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE 1 Cal. Rptr. 3d 556 (2009), as modified on denial of reh'g (Jan. 30, 2009). If reformation is ordered, 2 Plaintiff will seek to have breach of the implied covenant of good faith and fair dealing found against 3 Farmers for its knowing and intentional refusal to investigate the bases of the request for 4 reformation. 5 Outside of the breach of contract/reformation/bad faith question, numerous causes of action 6 under law will still remain and must be heard by a jury. There are two defendants with causes of 7 action involving the same facts and witnesses. Holding two separate trials will not serve the cause 8 of judicial efficiency or witness convenience. The resolution of Hunsaker’s causes of action will 9 also affect the resolution of Farmers’, as his negligence and fraud may be imputed to Farmers, who 10 ratified it. Farmers provides no arguments to support its claim that, if reformation is ordered, it 11 cannot still be held responsible for fraud, misrepresentation and negligence. Those causes of action 14241 NE Woodinville-Duvall Road, Suite 382 12 permit attorneys fees under the doctrine of the tort of another, emotional distress and punitive MONAHAN TUCKER LAW, P.C. 13 damages. Woodinville, WA 98072 (866) 823-8275 14 California encourages bifurcation only if it supports judicial efficiency. See Cohn v Bugas 15 (1974) Cal. App.3d 381,385 (citing the Judicial Council Report as stating that the purpose of 16 bifurcation is the “avoidance of the waste of time and money caused by the unnecessary trial of 17 damage questions in cases where the liability issues is resolved against the plaintiff”); Trickey v Sup 18 Ct. (1967) 252 Cal. App. 2d 650, 653 (same). Here, all of the witnesses for the reformation cause of 19 action will be the same as for the causes of action brought in law. There is no benefit to the Court 20 or the witnesses in bifurcation, it simply doubles the amount of time they must spend on this matter, 21 as well as the money all parties will spend on trial. 22 D. THIS COURT HAS ALREADY DENIED FARMERS’ IDENTICAL 23 MOTION IN WEISS 24 In Weiss v Fire Insurance Exchange, Sonoma Superior Court, SCV-263540, this Court 25 recently denied Farmers’ identical motion, brought by the same counsel. (Request for Judicial 26 Notice, Ex. 3.) In Weiss, in addition to the reformation cause of action, the plaintiff also had a 27 negligence cause of action pending against the agent. As in this instance, Farmers argued that if 28 reformation were ordered, there would be no cause of action remaining against the agent for 6 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE 1 negligence. The Court held, “In light of the right to a jury trial on the negligence cause of action and 2 the risk that witnesses will have to repeat their testimony if the case is bifurcated, the Court finds 3 that neither bifurcation nor severance is appropriate under the standards set forth in CCP §§598 and 4 1048. Based on the foregoing, the Motion is DENIED.” (RJN Ex. 3, page 3.) 5 The Court in Weiss specifically noted: 6 The Court is unpersuaded that judicial economy would be served by bifurcation or 7 severance in light of Defendants’ failure to support their contention that a ruling favorable to Plaintiffs on the reformation claim will obviate a claim for negligence 8 and the fact that Defendants do not even contend that a ruling adverse to Plaintiffs on the reformation claim would obviate or limit the scope of the trial on the 9 negligence claim. 10 (RJN Ex. 3, p. 2.) As in Weiss, Farmers has ignored the fact that numerous other causes of 11 action will remain in the event that reformation is granted. Further, unlike Weiss, in this action 14241 NE Woodinville-Duvall Road, Suite 382 12 reformation is pled in the alternative to breach of contract. There is no benefit to deciding the MONAHAN TUCKER LAW, P.C. 13 reformation cause of action while the breach of contract action is pending, as Plaintiff is entitled to Woodinville, WA 98072 (866) 823-8275 14 a jury trial on that cause of action. 15 IV. CONCLUSION 16 Where Farmers has failed to demonstrate any way in which judicial economy is served by 17 bifurcation, and this Court has previously ruled on and denied Farmers’ identical arguments for 18 bifurcation in Weiss, this Motion for Bifurcation should also be denied. 19 20 21 DATED: October 19, 2023 MONAHAN TUCKER LAW, P.C. 22 By: /s/Stacy M. Tucker Stacy Monahan Tucker 23 Attorneys for Plaintiff, GARY KOOP 24 25 26 27 28 7 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE 1 PROOF OF SERVICE I, Carolyn Spencer, declare as follows: 2 I am employed in the County of Rohnert Park, State of California. I am over the age of 18 3 and not a party to the within action; my business address is 14241 NE Woodinville-Duvall Road, Suite 382, Woodinville, WA 98072. 4 On October 19, 2023, I served the foregoing document described as PLAINTIFF GARY 5 KOOP’S OPPOSITION TO FIE’S MOTION TO BIFURCATE TRIAL in this action by serving a true copy thereof addressed as follows: 6 Christopher R. Wagner, Esq. cwagner@grsm.com 7 David Jones, Esq. djones@grsm.com Steven Inouye, Esq. sinouye@grsm.com 8 GORDON REES SCULLY MANSUKHANI, ilopez@grsm.com LLP jodell@grsm.com 9 633 West Fifth Street, 52nd floor Los Angeles, CA 90071 10 Attorneys for Defendant Fire Insurance Exchange, dba Farmers Insurance 11 Group 14241 NE Woodinville-Duvall Road, Suite 382 12 Albert M. T. Finch, III, Esq. tfinch@fgppr.com Jason Deng, Esq. jdeng@fgppr.com MONAHAN TUCKER LAW, P.C. 13 FORAN GLENNON kokasaki@fgppr.com Woodinville, WA 98072 1741 Technology Drive, Suite 250 (866) 823-8275 14 San Jose, CA 95110 Attorneys for Defendant Brian Hunsaker 15 Glenn R. Kantor gkantor@kantorlaw.net 16 Lisa S. Kantor lkantor@kantorlaw.net Tim Rozelle trozelle@kantorlaw.net 17 KANTOR & KANTOR, LLP 19839 Nordhoff Street 18 Northridge, CA 91324 Co-Counsel for Plaintiff, Gary Koop 19 [X] BY E-MAIL SERVICE: I caused a copy of the document(s) to be sent from e-mail address 20 cspencer@kantorlaw.net to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 21 transmission was unsuccessful. 22 [x] STATE: I declare under penalty of perjury under the Laws of the State of California that the 23 foregoing is true and correct. 24 I declare under penalty of perjury under the laws of the State of California that the above is 25 true and correct. Executed on October 19, 2023, Rohnert Park, California. 26 /s/Carolyn Spencer Carolyn Spencer 27 28 PLAINTIFF GARY KOOP’S OPPOSITION TO MOTION TO BIFURCATE