Preview
JOHN J. IMMORDINO (State Bar No. 93874)
SUSANNAH M. DUDLEY (State Bar No. 182939)
WILSON, ELSER, MOSKOWITZ, E-FILED
EDELMAN & DICKER LLP 4/25/2017 9:13:32 AM
555 South Flower Street, Suite 2900
Los Angeles, California 90071
FRESNO COUNTY SUPERIOR COURT
Telephone: (213) 443-5100 By: C. Cogburn, Deputy
Facsimile: (213) 443-5101
Attorneys for Plaintiff,
BANKERS INSURANCE COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
10 BANKERS INSURANCE COMPANY, a ) Case No.: 15 CE CG 02705
Florida corporation,
11 ) Hon. Jeffrey Y. Hamilton
Dept. 402
12 Plaintiff, )
)
13 ) NOTICE OF MOTION AND MOTION
FOR DISCHARGE OF STAKEHOLDER
14 GATEWAY AUTO SALES/LEASING INC., ) BANKERS INSURANCE COMPANY IN
a California corporation doing business as ) INTERPLEADER ACTION, AND FOR
15 FRESNO AUTO DEALERS EXCHANGE; ) AN ORDER ESTABLISHING THE
BRASHER’S SACRAMENTO AUTO AMOUNT OF VALID CLAIMS AND
16 AUCTION, a California corporation; UNITED) REMAINING BOND LIABILITY, AND
AUTO CREDIT CORPORATION, a FOR ATTORNEYS’ FEES AND COSTS;
17 California corporation; A-L FINANCIAL ) MEMORANDUM OF POINTS AND
CORP., a California corporation; HESHAM ) AUTHORITIES AND THE
18 ELZAAYM, an individual doing business as DECLARATIONS OF JOHN J.
FIVE STAR AUTO SALES; HAROUN ) IMMORDINO AND GABBY ACOSTA
19 BESHOY SAMIR, an individual doing FILED IN SUPPORT THEREOF
business as FIVE STAR AUTO SALES; )
20 LOBEL FINANCIAL CORPORATION, a )
California corporation; BRIAN RICHELIEU, ) Date: May 18, 2017
21 an individual and JENNIFER RICHELIEU, an) Time: 3:30 p.m.
individual both doing business as Dept: 402
22 CALIFORNIA AUTO REMARKETING; and )
DOES 1 TO 50, inclusive,
23 Defendants. )
)
24
25 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
26 YOU ARE HEREBY NOTIFIED THAT on May 18, 2017 at 3:30 p.m. or as soon
27 thereafter as the matter can be heard, in Department 402 of the above-entitled Court, located at
28 B.F. Sisk Courthouse, 1130 O Street, Fresno, CA 93721, Plaintiff BANKERS INSURANCE
1
BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
COMPANY (“BANKERS”) will move for an Order that: (1) pursuant to Code of Civil
Procedure Section 386 et seq., BANKERS be discharged from further liability as to any and all
of the Defendants named herein; (2) the only Defendant with a valid claim on the subject Motor
Vehicle License Bond and a valid interest in the interpled funds is BRASHER’S
SACRAMENTO AUTO AUCTION, and that Defendants, A-L FINANCIAL CORP and
LOBEL FINANCIAL CORPORATION do not have valid claims on the subject Motor Vehicle
License Bond or any interest in the interpled funds, (3) that the Court award BANKERS the
sum of $23,362.46 for reasonable attorneys’ fees and costs incurred by BANKERS in
connection with these proceedings; and (4) after deduction for the claim of BRASHER’S
10 SACRAMENTO AUTO AUCTION for $7,339. 87, the balance of the interpled sum of
11 $50,000.00, or $42,660.13, be returned to BANKERS, and that the remaining penal sum of the
12 subject Motor Vehicle License Bond is set at $19,297.67.
13 This motion is made on the grounds that BANKERS filed this interpleader action as it
14 was faced with claims in excess of the limit of liability of the Bond, and that BANKERS also
15 contested liability on the subject bond for the claims. Of all the Defendants named in this
16 action, there are only three (3) claimants remaining — all others having been dismissed — and of
17 those three (3) claimants,only one (1) has a valid claim compensable under the Bond. The
18 motion is further made to recover BANKERS’ attorneys’ fees and costs as provided by statute,
19 and for an order distributing the interpled funds to the valid claimant, and the balance back to
20 BANKERS.
21 //1
22 ///
23 //1
24 //1
25 //1
26 //1
27 ///
28 ///
2
BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
The motion will be based upon this notice, the attached points and authorities, the
Declaration of John J. Immordino, the Request for Judicial Notice filed concurrently herewith,
the Court’s complete files and records of this action, and upon such further evidence as may be
presented at the hearing on this motion.
Dated: April Qf, 2017 WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
Le ZS
By: =ZaS
=IO IN J. BAMORD NO
SANNAH M. DUDLEY
Attorneys for Plaintiff,
10 BANKERS INSURANCE COMPANY
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER
2732393v.1
MEMORANDUM OF POL AUTHORITIES
I INTRODUCTION AND STATEMENT OF FACTS
On or about November 20, 2013, BANKERS INSURANCE COMPANY
(“BANKERS”) issued a Dealers Surety Bond on behalf
of King of Kars, as dba of Elizabeth
Marie Chaves and filed with the State of California, Department of Motor Vehicles. The bond
was numbered 3217896 and was in the amount of Fifty Thousand Dollars ($50,000.00). A true
and correct copy of the Bond is attached hereto as Exhibit “A” and incorporated herein by this
reference. [Declaration of John J. Immordino, § 3] The Bond was issued to provide a source of
recovery for those individuals and entities who had contracted with King of Kars and who were
10 damaged as a result ofa violation of the Vehicle Code §11711 and/or fraud by King of Kars.
11 BANKERS received claims totaling $228,202.81, a figure well in excess of its liability
12 limit of $50,000.00. Accordingly, BANKERS filed this action in interpleader in order to limit
13 its liability under the bond to the penal sum of $50,000.00. [Declaration of John J. Immordino,
14 4/4] BANKERS also disputed the validity of the claims.[Declaration of John J. Immordino, 45]
15 BANKERS also deposited the bond amount into this Court, which presently holds such
16 sum. [Declaration of John J. Immordino, § 6]
17 Many of the claimants failed to answer the complaint, and BANKERS took their
18 default. [Declaration of John J. Immordino, § 7] Only three defendants remain in this action.
19 They are: BRASHER’S SACRAMENTO AUTO AUCTION (“BRASHER’S), A-L
20 FINANCIAL CORP. (“A-L”) and LOBEL FINANCIAL CORPORATION (“LOBEL”)
21 .[Declaration of John J. Immordino, { 7]
22 BRASHER’S claim is in the sum of $7,339.87. A-L’s claim is in the sum of
23 $18,400.00. And LOBEL’s claim is in the sum of $12,113.95 [Declaration of John J.
24 Immordino, {| 8].
25 BANKERS agrees that the claim of BRASHER’S is valid and should be compensated
26 under the bond. However, as will be demonstrated, the claims of A-L and LOBEL are not
27 compensable as they are time-barred.
28
4
BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
BRASHER’S is the only claim that should be paid from the proceeds now on deposit
with this Court. The balance of the proceeds should be ordered returned to BANKERS.
Additionally, BANKERS is entitled under the interpleader statute, to its attorneys fees and
costs incurred in this proceeding. It is thus respectfully requested that the Court award the sum
of $23,362.46 to BANKERS for its attorneys fees and costs, and further order that the
remaining penal sum of the bond be reduced to the sum of $19,297.67. This remaining penal
sum is the difference between $50,000.00 and the aggregate sum of the BRASHER’S claim and
the attorneys fees of BANKERS.
Il. INTERPLEADER OF THE SUBJECT BOND FUNDS IS PROPER GIVEN
10 THAT THERE WERE NUMEROUS CONFLICTING CLAIMS.
11 A Interpleader Limits Liability and Avoids Mulitiple Liability
12 Code of Civil Procedure Section 386(b) states in relevant part:
13 Any person, firm, corporation, association or other entity against
14 whom double or multiple claims are made, or may be made, by
15 two or more persons which are such that they may give rise to
16 double or multiple liability, may bring an action against the
17 claimants to compel them to interplead and litigate their several
18 claims.
19 When the person, firm, corporation, association or other entity
20 against whom such claims are made, or may be made, is a
21 defendant in an action brought upon one or more of such claims,
22 it may either file a verified cross-complaint in interpleader,
23 admitting that it has no interest in the money or property claimed,
24 or in only a portion thereof, and alleging that all or such portion
25 is demanded by parties to such action, and apply to the court
26 upon notice to such parties for an order to deliver such money or
27 property or such portion thereof to such persons as the court shall
28 direct; or may bring a separate action against the claimants to
5
BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
compel them to interplead and litigate their several claims. The
action of interpleader may be maintained although the claims
have not a common origin, are not identical but are adverse to
and independent of one another, or the claims are unliquidated
and no liability on the part of the party bringing the action or
filing the cross-complaint has arisen. The applicant or
interpleading party may deny liability in whole or in part to any
or all of the claimants. The applicant or interpleading party may
join as a defendant in such action any other party against whom
10 claims are made by one or more of the claimants or such other
11 party may interplead by cross-complaint; provided, however, that
12 such claims arise out of the same transaction or occurrence.
13 When a person may be subject to conflicting claims for money or property, the person
14 may bring an interpleader action to compel the claimants to litigate their claims among
15 themselves. City of Morgan Hill v. Brown (1999) 71 Cal.App.4" 1114, 1122, citing Code of
16 Civil Procedure Section 386(b). Once the person admits liability and deposits the money with
17 the court, he or she is discharged from liability and freed from the obligation of participating in
18 the litigation between the claimants. /d., citing, Williams v. Gilmore (1942) 51 Cal.App.2d 684,
19 689.; Hancock Oil Co. v. Hopkins (1944) 24 Cal.2d 497. Privity between claimants is no
20 longer required. City of Morgan Hill v. Brown, supra, 71 Cal.App.4" at 1122. Further,
21 interpleader may be permitted even though one claimant seeks part of the fund and the other
22 claimant seeks the entire fund amount. /d.
23 BANKERS was faced with such multiple liability and thus filed this interpleader action
24 and deposited the amount of the bond with the Court, all in compliance with the statute.
25 B The interpleading plaintiff may contest liability under the bond.
26 Code of Civil Procedure Section 386(b) states in relevant part that “The applicant or
27 interpleading party may deny liability in whole or in part to any or all of the claimants.” That is
28 precisely what BANKERS has done in this case. BANKERS alleged in its complaint that any
6
BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER.
27444 18v.1
1 claims that arose after November 28, 2014 (the effective date of cancellation of the bond) are
2 time barred. [Declaration of John J. Immordino, § 5]
3 Ill. THE CLAIMS OF A-L AND LOBEL ARE TIME BARRED AND NON
COMPENSABLE UNDER THE BOND.
Code of Civil Procedure Section 996.320 provides:
A surety may cancel or withdraw from a bond by giving a notice
of cancellation or withdrawal to the officer to whom the bond
was given in the same manner the bond was given,
notwithstanding Section 995.030. The surety shall at the same
10 time mail or deliver a copy of the notice of cancellation or
11 withdrawal to the principal.
12 Code of Civil Procedure Section 996.330 provides:
13 Cancellation or withdrawal of a surety is effective at the earliest
14 of the following times:
15 (a) Thirty days after notice of cancellation or withdrawal is
16 given.
17 (b) If a new surety is substituted for the original surety, the date
18 the substitution becomes effective.
19 (c) Ifa new bond is given, the date the new bond becomes
20 effective.
21 And Code of Civil Procedure Section 996.360 provides:
22 If a surety cancels or withdraws from a bond:
23 (a) The bond remains in full force and effect for all liabilities
24 incurred before, and for acts, omissions, or causesexisting or
25 which arose before, the cancellation or withdrawal. Legal
26 proceedings may be had therefor in allrespects as though there
27 had been no cancellation or withdrawal.
28
7
BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
(b) The surety is not liable for any act, default, or misconduct of
the principal or other breach of the condition of the bond that
occurs after, or for any liabilities on the bond that arise after, the
cancellation or withdrawal.
(c) The cancellation or withdrawal does not affect the bond as to
the remaining sureties, or alter or change their liability in any
respect.
Taken together these statutes make clear that BANKERS liability under the bond ceased
thirty (30) days after the notice of cancellation was given. Cancellation of the bond was given
10 on October 29, 2014. [Declaration of Gabby Acosta, 4] Accordingly, the cancellation was
11 effective on November 28, 2014 (thirty days after notice).
12 A-L’s claim arose as a result of two contracts for the sale of motor vehicles, which
13 obligations were created after the cancellation of BANKERS bond. A-L’s claim was for two
14 accounts: the Flores/Hernandez account and the Cortez-Perez account. the Flores/Hernandez
15 account was created on December 1, 2014 and the Cortez-Perez account was created on
16 February 18, 2015. [Declaration of John J. Immordino, { 9]
17 LOBEL’s claim arose as a result of5 vehicle installment contracts,all of which occurred
18 in 2015.[Declaration of John J. Immordino, § 10]
19 Accordingly, the claims of A-L and LOBEL are time barred and are not compensable
20 under the subject bond.
21 IV. BANKERS IS ENTITLED TO RECOVER ATTORNEYS’ FEES AND COSTS
22 THAT IT HAS INCURRED IN THIS INTERPLEADER ACTION.
23 Code of Civil Procedure Section 386.6(a) states the following:
24 A party to an action who follows the procedure set forth in
25 Section 386 or 386.5 may insert in his motion, petition,
26 complaint, or cross complaint a request for allowance of his costs
27 and reasonable attorney fees incurred in such action. In ordering
28 the discharge of such party, the court may, in its discretion, award
8
BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
such party his costs and reasonable attorney fees from the amount
in dispute which has been deposited with the court. At the time
of final judgment in the action the court may make such further
provision of assumption of such costs and attorney fees by one or
more of the adverse claimants as may appear proper.
A trial court may allow such fees to an interpleading surety as relates solely to the
pursuit of its stakeholder remedy provided by Code of Civ. Proc. §§ 386 et seq. Sweeney v.
McClaran (1976) 58 CA3d 824, 830. BANKERS has incurred the sum of $21,925.50 in
attorneys’ fees and $1,436.96 in costs, totaling $23,362.46, in connection with this interpleader
10 action. [Declaration of John J. Immordino, § 11]
11 Vv. CONCLUSION
12 Based upon the foregoing, BANKERS respectfully requests that the Court discharge the
13 Bond from any further liability as to the Defendants, that the Court issue an order that the only
14 valid claim is that of BRASHER’S and that BRASHER’S be paid the sum of $7,339.87 from
15 the interpled funds, that the sum of $42,660.13 be returned to BANKERS, in care of its counsel
16 of record, that BANKERS be awarded the sum of $23,362.46 for its attorneys fees and costs,
17 and that an order be issued declaring that the balance of the penal sum of the Dealer’s Bond is
18 $19,297.67.
19
20 DATED: April 2/ , 2017 WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
An)
21
22
By:_——=
23 + CHN
SUSARNAH M. DU DLEY
24 Attorneys for Plaintiff,
BANKERS INSURANCE COMPANY
25
26
27
28
9
— _-
BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER
2732393v.1
DECLARATION OF JOHN J. IMMORDINO
1 I am an attorney at law licensed to practice before all of the courts of the state of
California, and am Of Counsel in the firm of Wilson, Elser, Moskowitz, Edelman & Dicker,
LLP, counsel of record for Plaintiff, BANKERS INSURANCE COMPANY (“BANKERS”).
2. I know all of what follows of my own personal knowledge and could and would
competently testify thereto if called upon to do so as a witness.
3 Attached hereto as Exhibit “A” is a true and accurate copy of the Dealers Surety
Bond issued by BANKERS on behalf of King of Kars, as dba of Elizabeth Marie Chavez and
filed with the State of California, Department of Motor Vehicles, numbered 3217896 and in the
10 amount of Fifty Thousand Dollars ($50,000.00) (hereinafter the “Bond”).
11 4 BANKERS received claims from a number of parties on the Bond, totaling the
12 sum of $228,202.81. In order to limit the liability of BANKERS to the penal sum of the Bond,
13 I caused to be filed the interpleader complaint on August 26, 2015, naming all of the claimants
14 on the Bond. On September 1, 2015 I caused to be filed the first amended complaint in
15 interpleader.
16 5 BANKERS disputed the validity ofa number of the claims, alleging that:
17 a. Any claim that arose after the effective cancellation of the Dealer Bond is
18 not valid and such claimant is not entitled to any portion of such claim from
19 the Dealer Bond [413 of the First Amended Complaint]; and
20 “any claims that arose after November 28, 2014, are not compensable under
21 the Dealer Bond. Accordingly, if the valid claims involved herein do not
22 exceed the penal sum of the Dealer Bond, that sum should be returned to
23 Bankers to remain available to other valid and timely claimants [§ 26 of the
24 First Amended Complaint]
25 6. On or about September 22, 2015, I caused to be deposited with this Court, the
26 sum of $50,000.00 (the penal sum of the Bond) and on that same date filed a Notice of Deposit
27 of Bond Funds with the Court.
28
10
BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
7 After a number of defendants failed to answer the complaint, I caused their
defaults to be entered by the clerk of this Court. Only three (3) defendants remain in this case,
BRASHER’S SACRAMENTO AUTO AUCTION (“BRASHER’S), A-L FINANCIAL CORP.
(“A-L”) and LOBEL FINANCIAL CORPORATION “(LOBEL”).
8 LOBEL’s claim was originally in the amount of $145,302.69, but was letter
amended and reduced to $12,113.95. A-L’s claim was originally in the amount of $20,016.39,
but was letter amended and reduced to $18,400.00. BRASHER’S claim is in the amount of
$7,339.87.
9 Attached hereto as Exhibit “B” is a true and accurate copy of the special
10 interrogatories | caused to be served upon A-L, and attached hereto as Exhibit “C” is a true and
11 accurate copy of the responses to those special interrogatories by A-L. In response to special
12 interrogatory number 4, which requested the dates upon which each account obligation was
13 created for which A-L was making claim, A-L responded: For the Flores-Hernandez Account,
14 A-L Financial Corporation paid King of Kars the sum of $9,936.29 on or about 12/01/14... .
15 -For the Cortez-Perez account, A-L Financial Corporation paid King of Kars the sum of
16 $9,279.38 on or about 2/18/15.
17 10. Attached hereto as Exhibit “D” is a true and accurate copy of the special
18 interrogatories I caused to be served upon LOBEL and attached hereto as Exhibit “E” is a true
19 and accurate copy of the responses to those special interrogatories by LOBEL. In response to
20 special interrogatory number 4, which requested the dates upon which each account obligation
21 was created for which LOBEL was making claim, LOBEL responded by identifying five (5)
22 vehicle sales contracts and the dates those obligations arose as follows: Sharon Myers, 2005
23 Nissan, Retail Installment Sales Contract and 02-05-15 Dealer Disbursement; Jennifer Montez,
24 2005 Volkswagen, 3-01-15 Retail Installment Sales Contract, 3-06-15 Limited Repurchase
25 Assignment, 3-06.-15 Dealer Disbursement; Pedro & Sal Serrano, 2007 Saturn, 2-13-15 Retail
26 Installment Sales Contract, 3-06-15 Dealer Disbursement, Jose Bermudez, 1-04-15 Retail
27 Installment Sales Contract, 3-06-15 Limited Repurchase Assignment, 1-06-15 Dealer
28
i
BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER
27444 18v.1
Disbursement, and Crystal M. Suarez, 2002 Chevrolet, 1-30-15 Retail Installment Sales
Contract, 3-18-15 Dealer Disbursement.
11. I am responsible for the billing by my firm to the client for attorneys fees and
costs. Based upon a review of my firm’s records regarding the invoices transmitted to
BANKERS and records regarding the pending and unbilled attorneys fees and costs,
BANKERS has incurred the sum of $21,925.50 for attorney’s fees and the sum of $1,436.96
for filing fees and process server fees in this matter. The total fees and costs incurred are in the
sum of $23,362.46.
I declare under penalty of perjury that the foregoing is true and correct. And that this
10 declaration was executed on the af » ay of April, at Los Angeles, California.
11
Lor
<=
12 Zz
< 7 JORG. IMMO RDI
an
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER
2732393v.1
DECLARATION OF GABBY ACOSTA
I, Gabby Acosta, declare as follows:
1 I am employed by J..R. Olsen Bonds & Insurance Brokers, Inc. in Canoga Park,
CA., as a Senior Underwriter.
2 In 2013 and 2014, I was an underwriter and attorney in fact for Bankers
Insurance Company in connection with the issuance of various commercial surety bonds,
including motor vehicle license bonds.
3 With the appropriate power of attorney, | issued, on or about November 20,
a 2013, a California DMV $50,000.00 Dealer Bond, numbered 3217896 on behalf of Elizabeth
10 Marie Chavez dba King of Kars.
1 4 On October 29, 2014, I prepared a Notice of Cancellation, a true and accurate
122 copy of which is attached hereto as Exhibit “F”, and sent the notice by certified return receipt
13 mail to the California Department of Motor Vehicles, Occupational Licensing Operations in
14 Sacramento, CA. Attached hereto collectively as Exhibit “G” are the certified mailing receipt
15 and acknowledgment of receipt regarding said notice. On that same date, I also mailed a copy
16 of the notice of cancellation to Elizabeth Marie Chavez dba King of Kars, the principal on the
7 bond, to the address reflected in the Notice of Cancellation.
18 T declare under penalty of perjury that the foregoing is true and correct. And that this
19 declaration was executed on the 21% day of April, 2017 at Canoga Park, California.
20 \
21 \ yO ‘|
"GABBY ACOSTA
22
23
24
25
26
22
9
2
12
BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER
2732393v.1
EXHIBIT "A"
— a ——.
STATE OF CALIFOBNIA DMV USE. ONLY, a
DEPARTMENT OF MOTOR VEHICLES: [OL OR AGGOUNT NUMBER
ee
DEALER SURETY BOND pare
fs3 (Vehicle Code Section 11710)
Le - a —_———
Licensing Operations ision Bond Nuwber 3217896
—
Occupational Licensing Branch ‘SURETY USE ORLY
P.O. Box 932342, MS: L224 $5,500.C
Sacramento, CA 94232-3420 Pre ium Amount
SURETY USE ONLY
KNOW ALL PERSONS RY THESE PRESENTS:
King Of Kars Elizabeth Marie Chavez
‘That we, - PRINCIPAL NAMES) AND BOA
a
—
doing business as a deaier whose address for service is, 628 Fulton St Fresno CA "93721
DEALER SERVICE ADOWESS
as PRINCIPAL,
and Bankers Insurance
SORE NAME
Company
a corporation organized under the laws o Florida _ ond authorized to vansact a
“STATE GF INCORPORATION
11101 Roosevelt
general surety business in the State of California, whose address for service is aa Bivd N. St Petersburg
_ FL _33716
IE ADDRESS
as SURETY, are beld and firmly bound ta the People of the State of
California in the penal sum of FIPTY THOUSAND DOLLARS ($50,000), for which payment we bind ousselves, our heirs, executors,
administrators, successors and assigns jointly and severatly, firmaly by these presents. The bond term shal! begin oa 11/20/2033 _
BOND EFFRCTIVE UATE
WHEREAS, section 11710, Vebicie Code, requires that the Principal file or have on file with the Department a bond in the sua of $50,000
and this bond is executed and tendcred in accordance therewith.
NOW THEREFORE, the conditions of the foregoing obligation are that if the Pri ipl shall not practice any fraud or make any Saudulent
representation which will saure a monetary loss to a purchaser, seller, financing agency, or governmental agency; an, shi not fail to comply with
conditions set out in section 14711, then this obligation is to be void; otherwise it is to remain in full force and effect,
PROVIDED HOWEVER, this bord is issued subject to the following express conditions:
(1) This bond shal? be deemed continuvus in form and shal] remain in full force and effect and shal] run concurrently with the license
period for which the license is granted and each and every succeeding license period or periods for which said Principal may be licensed,
after which liability hereunder shall cease except as to any liability or indebtedness therefore incused or accrued hereunder.
(2) This bond is executed by the Surety t0 comply with Article 1 (commencing with section 11700), Chapter 4, Division 5, Vehicle
Code and chapter 2, title 14, part 2, Corie of Civil Procedure and said bond shall be subject fo all the terms and provisions thereof.
(3) Tee aggregate Lability of the Surety hereunder on all claims whatsoever shall not exceed the penal sum of this bond in any event.
(4) This bond nay be canvetled by the Surety in accordance with Article 13 (commencing with section 996.319), chapter 2, tile 14,
part 2, Code of Civil Procedure.
(5). The Surety, its successors and assigns, are jointly and severally liable on the obligations of the bond, chapter 2 (commencing with
section 995.010), title 14, pert 2, Code of Civil Procedure und Article 1 (conmencing with section 11700), Chapter 4, Division 5, Vehicle
Code.
(©) The Principal and Surety may be served with notices, papers und other documents under chapter 2 (commencing with section
995.010), title 14, part 2, Code of Civil Procedure at the addresses given above.
J certify (or declare) wider penalty of perjury, under the laws of the State of California that the foregoing ix true and correct. The undersigned
executes this bond on behalf
of the surety under an unrevoked power of attorney.
Executed at Canoga Park, CAL x
—___- ee
BGK ORE JKNEY-IN®)
‘Cn (Datey 11/20/2013 G bby Atos @ \
Phi »D ORTYI OF ATFORNEV.IN FACT
OL25 MEY. 1172010; WWW
UME OC
Page 1
Power of Attorney 321789
Bankers Insurance Company
KNOW ALL MEN BY THESE PRESENTS, that BANKERS INSURANCE COMPANY, a corporation duly
organized under the laws of the State of Florida, and having its principal office in the City of St. Petersburg,
Pinellas County, Florida, does hereby nominate, constitute and appoint:
*James R. Olsen, Hope E. Olsen, Rosa M. Friedik, Gabby Acosta and/or Abel Acosta
of the City of Canoga Park ’ Los Angeles County, State of California , its true
and lawful Attorney: fact, with fullpower and authority hereby conferred upon him/her to make, execute, seal
and deliver for and on its behalf, as Surety, as its act and deed, any and all bonds, undertakings consent or
Agreement not exceeding the sum of Five Hundred Thousand and xx/100 Dollars--- $500,000.00
which this Company may be authorized to write
This Power of Attorney is granted and is signed and sealed under and by the authority of the following
resolutions adopted by the Board of Directors of Bankers Insurance Company, and now in force to-wit
BE IT RESOLVED, that the Chairman of the Board, President and any Vice President of the Corporation are hereby
authorized to execute Powers of Attomey, qualifying the Attorney(s)-in-Fact named in the Powers of Attomey to execute,
‘on behatf of the Corporation, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant
Secretary of the Cosporation are hereby authorized to attest the execution of any such Power of Attomey.
BE IT FURTHER RESOLVED, that the signatures of such officers may be affixed to any such Power of Attomey or to
any certificate relating thereto by facsimile, any and such Power of Attorney or certificate bearing such facsimile
signatures shall be valid and binding upon the corporation when so affixed in the future with respect to any bond,
undertaking or contract of suretyship to which it is attached.
IN WITNESS WHEREOF, Bankers Insurance Company has caused these presents to be executed by their duly
4 day of July, 2010.
authorized officers as of this
ATTEST: ef hn COMPANY
COMame
Assistant Secretary David K. Meehan, President
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me day of July, 2010 by David K Meehan and Nancy C. Haire, as
President and Assistant Secretary, respectively, of Bankers Insurance Company, a Florida corporation, on behalf of the corporation,
ry,
(NOTARY PUBLIC)
1, the undersigned, Assistant Secretary of Bankers Insurance Company do hereby certify that the original Power of Attorney, of which the
foregoing is a full, true and correct copy, is in full force and effect.
IN WITNESS WHEREOF, | have hereunto subscribed my name as Assistant Secretary, and atfix the corporate seal of the Corporation this
Oth day of November : 20
(SEAL)
Nancy C. Ha CMa Sao
Page 2
CALIFORNIA ALL-PURPOSE ACKNG EDG MENT
CS
State of California
County of _Los Angeles
Esteban Flores-Notary Public
On 11-20-2013 before me,
Bae Tiere sed Name and Tile of he Oxicer
personally appeared Gahby Acosta
Warselsy or Sree)
—
who proved fo.me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me. that
1 he/she/they executed the same in his/her/their authorized
capaclty(ies}, and that by his/her/thelr signature(s) on the
~ Yelas Bn aA fa 3
3
ESTED, SAN FLORES
Commission # 1987526
‘6
5
instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument:
Notary Public - California z
fay 25
Los Angeles County = i certity under PENALTY OF PERJURY under the laws
is My Samer Ses foe. 2018 of the State of California that the foregoing paragraph is
‘tue. and:correct.
' :
WITNESS my han \d and
ei
PN official seal.
Signature. CLT ‘ot Notary Pobic
Place Notary Seal Atiove
orm ONAL
Though the information below is not required by law, it may prove valuable lo persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Bond #: 3217896
Title of Type of Docume
Document Date: 11-20-2013 —_— Number of Pages:_ a
Signer(s) Other Than Named Above: —_—_~
Capacity(ies) Claimed by Signer(s)
Signe’s Name:____ . Signer’s Name:__.
oO Individual OIndividual
o Corporate Officer — Title(s): D Corporate Officer — Title(s): ee
Partner — G Limited 0 General © Partner —C Limited 0 General Cae
rerannearo Es
Attorney in Fact pissy
Top of thumb here
CO Attorney in Fact
Top of thumb here
Trustee OTrusteo
Guardian or Conservator © Guardian or Conservator
Other: O Other:
Signer is Reoresertin ——— Signer Is Representin
ee ——
OEE CAS SARIS REN NSIS US
{62007 Nocona Nowy Assoiaton $250 Do sob fave, RO Bax 2402 Chota, naroee122 i wor Nace INoteryo7y_ lem 539%B07 Reorder Cali Fine VOD 755827
Page 3
EXHIBIT "B"
JOHN J. IMMORDINO (State Bar No. 93874)
SUSANNAH M. DUDLEY (State Bar No. 182939)
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
555 South Flower Street, Suite 2900
Los Angeles, California 90071
Telephone: (213) 443-5100
Facsimile: (213) 443-5101
Attorneys for Plaintiff,
BANKERS INSURANCE COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
10
BANKERS INSURANCE COMPANY, a ) Case No.: 15 CE CG 02705
11 Florida corporation, )
Hon. Jeff Hamilton
12 Plaintiff, ) Dept. 104
Vv,
13
GATEWAY AUTO SALES/LEASING INC., ) SPECIAL INTERROGATORIES TO
14 a California corporation doing business as ) DEFENDANT A-L FINANCIAL CORP.
FRESNO AUTO DEALERS EXCHANGE; )
15 BRASHER’S SACRAMENTO AUTO )
AUCTION, a California corporation; UNITED)
16 AUTO CREDIT CORPORATION, a
California corporation; A~-L FINANCIAL
17 CORP., a California corporation; HESHAM
ELZAAYM, an individual doing business as
18 FIVE STAR AUTO SALES; HAROUN
BESHOY SAMIR, an individual doing
19 business as FIVE STAR AUTO SALES;
LOBEL FINANCIAL CORPORATION, a
20 California corporation, BRIAN RICHELIEU, )
an individual and JENNIFER RICHELIEU, an)
21 individual both doing business as
CALIFORNIA AUTO REMARKETING,; and )
22 DOES 1 TO 50, inclusive,
Preview
JOHN J. IMMORDINO (State Bar No. 93874) SUSANNAH M. DUDLEY (State Bar No. 182939) WILSON, ELSER, MOSKOWITZ, E-FILED EDELMAN & DICKER LLP 4/25/2017 9:13:32 AM 555 South Flower Street, Suite 2900 Los Angeles, California 90071 FRESNO COUNTY SUPERIOR COURT Telephone: (213) 443-5100 By: C. Cogburn, Deputy Facsimile: (213) 443-5101 Attorneys for Plaintiff, BANKERS INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 BANKERS INSURANCE COMPANY, a ) Case No.: 15 CE CG 02705 Florida corporation, 11 ) Hon. Jeffrey Y. Hamilton Dept. 402 12 Plaintiff, ) ) 13 ) NOTICE OF MOTION AND MOTION FOR DISCHARGE OF STAKEHOLDER 14 GATEWAY AUTO SALES/LEASING INC., ) BANKERS INSURANCE COMPANY IN a California corporation doing business as ) INTERPLEADER ACTION, AND FOR 15 FRESNO AUTO DEALERS EXCHANGE; ) AN ORDER ESTABLISHING THE BRASHER’S SACRAMENTO AUTO AMOUNT OF VALID CLAIMS AND 16 AUCTION, a California corporation; UNITED) REMAINING BOND LIABILITY, AND AUTO CREDIT CORPORATION, a FOR ATTORNEYS’ FEES AND COSTS; 17 California corporation; A-L FINANCIAL ) MEMORANDUM OF POINTS AND CORP., a California corporation; HESHAM ) AUTHORITIES AND THE 18 ELZAAYM, an individual doing business as DECLARATIONS OF JOHN J. FIVE STAR AUTO SALES; HAROUN ) IMMORDINO AND GABBY ACOSTA 19 BESHOY SAMIR, an individual doing FILED IN SUPPORT THEREOF business as FIVE STAR AUTO SALES; ) 20 LOBEL FINANCIAL CORPORATION, a ) California corporation; BRIAN RICHELIEU, ) Date: May 18, 2017 21 an individual and JENNIFER RICHELIEU, an) Time: 3:30 p.m. individual both doing business as Dept: 402 22 CALIFORNIA AUTO REMARKETING; and ) DOES 1 TO 50, inclusive, 23 Defendants. ) ) 24 25 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 26 YOU ARE HEREBY NOTIFIED THAT on May 18, 2017 at 3:30 p.m. or as soon 27 thereafter as the matter can be heard, in Department 402 of the above-entitled Court, located at 28 B.F. Sisk Courthouse, 1130 O Street, Fresno, CA 93721, Plaintiff BANKERS INSURANCE 1 BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 COMPANY (“BANKERS”) will move for an Order that: (1) pursuant to Code of Civil Procedure Section 386 et seq., BANKERS be discharged from further liability as to any and all of the Defendants named herein; (2) the only Defendant with a valid claim on the subject Motor Vehicle License Bond and a valid interest in the interpled funds is BRASHER’S SACRAMENTO AUTO AUCTION, and that Defendants, A-L FINANCIAL CORP and LOBEL FINANCIAL CORPORATION do not have valid claims on the subject Motor Vehicle License Bond or any interest in the interpled funds, (3) that the Court award BANKERS the sum of $23,362.46 for reasonable attorneys’ fees and costs incurred by BANKERS in connection with these proceedings; and (4) after deduction for the claim of BRASHER’S 10 SACRAMENTO AUTO AUCTION for $7,339. 87, the balance of the interpled sum of 11 $50,000.00, or $42,660.13, be returned to BANKERS, and that the remaining penal sum of the 12 subject Motor Vehicle License Bond is set at $19,297.67. 13 This motion is made on the grounds that BANKERS filed this interpleader action as it 14 was faced with claims in excess of the limit of liability of the Bond, and that BANKERS also 15 contested liability on the subject bond for the claims. Of all the Defendants named in this 16 action, there are only three (3) claimants remaining — all others having been dismissed — and of 17 those three (3) claimants,only one (1) has a valid claim compensable under the Bond. The 18 motion is further made to recover BANKERS’ attorneys’ fees and costs as provided by statute, 19 and for an order distributing the interpled funds to the valid claimant, and the balance back to 20 BANKERS. 21 //1 22 /// 23 //1 24 //1 25 //1 26 //1 27 /// 28 /// 2 BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 The motion will be based upon this notice, the attached points and authorities, the Declaration of John J. Immordino, the Request for Judicial Notice filed concurrently herewith, the Court’s complete files and records of this action, and upon such further evidence as may be presented at the hearing on this motion. Dated: April Qf, 2017 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Le ZS By: =ZaS =IO IN J. BAMORD NO SANNAH M. DUDLEY Attorneys for Plaintiff, 10 BANKERS INSURANCE COMPANY 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER 2732393v.1 MEMORANDUM OF POL AUTHORITIES I INTRODUCTION AND STATEMENT OF FACTS On or about November 20, 2013, BANKERS INSURANCE COMPANY (“BANKERS”) issued a Dealers Surety Bond on behalf of King of Kars, as dba of Elizabeth Marie Chaves and filed with the State of California, Department of Motor Vehicles. The bond was numbered 3217896 and was in the amount of Fifty Thousand Dollars ($50,000.00). A true and correct copy of the Bond is attached hereto as Exhibit “A” and incorporated herein by this reference. [Declaration of John J. Immordino, § 3] The Bond was issued to provide a source of recovery for those individuals and entities who had contracted with King of Kars and who were 10 damaged as a result ofa violation of the Vehicle Code §11711 and/or fraud by King of Kars. 11 BANKERS received claims totaling $228,202.81, a figure well in excess of its liability 12 limit of $50,000.00. Accordingly, BANKERS filed this action in interpleader in order to limit 13 its liability under the bond to the penal sum of $50,000.00. [Declaration of John J. Immordino, 14 4/4] BANKERS also disputed the validity of the claims.[Declaration of John J. Immordino, 45] 15 BANKERS also deposited the bond amount into this Court, which presently holds such 16 sum. [Declaration of John J. Immordino, § 6] 17 Many of the claimants failed to answer the complaint, and BANKERS took their 18 default. [Declaration of John J. Immordino, § 7] Only three defendants remain in this action. 19 They are: BRASHER’S SACRAMENTO AUTO AUCTION (“BRASHER’S), A-L 20 FINANCIAL CORP. (“A-L”) and LOBEL FINANCIAL CORPORATION (“LOBEL”) 21 .[Declaration of John J. Immordino, { 7] 22 BRASHER’S claim is in the sum of $7,339.87. A-L’s claim is in the sum of 23 $18,400.00. And LOBEL’s claim is in the sum of $12,113.95 [Declaration of John J. 24 Immordino, {| 8]. 25 BANKERS agrees that the claim of BRASHER’S is valid and should be compensated 26 under the bond. However, as will be demonstrated, the claims of A-L and LOBEL are not 27 compensable as they are time-barred. 28 4 BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 BRASHER’S is the only claim that should be paid from the proceeds now on deposit with this Court. The balance of the proceeds should be ordered returned to BANKERS. Additionally, BANKERS is entitled under the interpleader statute, to its attorneys fees and costs incurred in this proceeding. It is thus respectfully requested that the Court award the sum of $23,362.46 to BANKERS for its attorneys fees and costs, and further order that the remaining penal sum of the bond be reduced to the sum of $19,297.67. This remaining penal sum is the difference between $50,000.00 and the aggregate sum of the BRASHER’S claim and the attorneys fees of BANKERS. Il. INTERPLEADER OF THE SUBJECT BOND FUNDS IS PROPER GIVEN 10 THAT THERE WERE NUMEROUS CONFLICTING CLAIMS. 11 A Interpleader Limits Liability and Avoids Mulitiple Liability 12 Code of Civil Procedure Section 386(b) states in relevant part: 13 Any person, firm, corporation, association or other entity against 14 whom double or multiple claims are made, or may be made, by 15 two or more persons which are such that they may give rise to 16 double or multiple liability, may bring an action against the 17 claimants to compel them to interplead and litigate their several 18 claims. 19 When the person, firm, corporation, association or other entity 20 against whom such claims are made, or may be made, is a 21 defendant in an action brought upon one or more of such claims, 22 it may either file a verified cross-complaint in interpleader, 23 admitting that it has no interest in the money or property claimed, 24 or in only a portion thereof, and alleging that all or such portion 25 is demanded by parties to such action, and apply to the court 26 upon notice to such parties for an order to deliver such money or 27 property or such portion thereof to such persons as the court shall 28 direct; or may bring a separate action against the claimants to 5 BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 compel them to interplead and litigate their several claims. The action of interpleader may be maintained although the claims have not a common origin, are not identical but are adverse to and independent of one another, or the claims are unliquidated and no liability on the part of the party bringing the action or filing the cross-complaint has arisen. The applicant or interpleading party may deny liability in whole or in part to any or all of the claimants. The applicant or interpleading party may join as a defendant in such action any other party against whom 10 claims are made by one or more of the claimants or such other 11 party may interplead by cross-complaint; provided, however, that 12 such claims arise out of the same transaction or occurrence. 13 When a person may be subject to conflicting claims for money or property, the person 14 may bring an interpleader action to compel the claimants to litigate their claims among 15 themselves. City of Morgan Hill v. Brown (1999) 71 Cal.App.4" 1114, 1122, citing Code of 16 Civil Procedure Section 386(b). Once the person admits liability and deposits the money with 17 the court, he or she is discharged from liability and freed from the obligation of participating in 18 the litigation between the claimants. /d., citing, Williams v. Gilmore (1942) 51 Cal.App.2d 684, 19 689.; Hancock Oil Co. v. Hopkins (1944) 24 Cal.2d 497. Privity between claimants is no 20 longer required. City of Morgan Hill v. Brown, supra, 71 Cal.App.4" at 1122. Further, 21 interpleader may be permitted even though one claimant seeks part of the fund and the other 22 claimant seeks the entire fund amount. /d. 23 BANKERS was faced with such multiple liability and thus filed this interpleader action 24 and deposited the amount of the bond with the Court, all in compliance with the statute. 25 B The interpleading plaintiff may contest liability under the bond. 26 Code of Civil Procedure Section 386(b) states in relevant part that “The applicant or 27 interpleading party may deny liability in whole or in part to any or all of the claimants.” That is 28 precisely what BANKERS has done in this case. BANKERS alleged in its complaint that any 6 BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER. 27444 18v.1 1 claims that arose after November 28, 2014 (the effective date of cancellation of the bond) are 2 time barred. [Declaration of John J. Immordino, § 5] 3 Ill. THE CLAIMS OF A-L AND LOBEL ARE TIME BARRED AND NON COMPENSABLE UNDER THE BOND. Code of Civil Procedure Section 996.320 provides: A surety may cancel or withdraw from a bond by giving a notice of cancellation or withdrawal to the officer to whom the bond was given in the same manner the bond was given, notwithstanding Section 995.030. The surety shall at the same 10 time mail or deliver a copy of the notice of cancellation or 11 withdrawal to the principal. 12 Code of Civil Procedure Section 996.330 provides: 13 Cancellation or withdrawal of a surety is effective at the earliest 14 of the following times: 15 (a) Thirty days after notice of cancellation or withdrawal is 16 given. 17 (b) If a new surety is substituted for the original surety, the date 18 the substitution becomes effective. 19 (c) Ifa new bond is given, the date the new bond becomes 20 effective. 21 And Code of Civil Procedure Section 996.360 provides: 22 If a surety cancels or withdraws from a bond: 23 (a) The bond remains in full force and effect for all liabilities 24 incurred before, and for acts, omissions, or causesexisting or 25 which arose before, the cancellation or withdrawal. Legal 26 proceedings may be had therefor in allrespects as though there 27 had been no cancellation or withdrawal. 28 7 BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 (b) The surety is not liable for any act, default, or misconduct of the principal or other breach of the condition of the bond that occurs after, or for any liabilities on the bond that arise after, the cancellation or withdrawal. (c) The cancellation or withdrawal does not affect the bond as to the remaining sureties, or alter or change their liability in any respect. Taken together these statutes make clear that BANKERS liability under the bond ceased thirty (30) days after the notice of cancellation was given. Cancellation of the bond was given 10 on October 29, 2014. [Declaration of Gabby Acosta, 4] Accordingly, the cancellation was 11 effective on November 28, 2014 (thirty days after notice). 12 A-L’s claim arose as a result of two contracts for the sale of motor vehicles, which 13 obligations were created after the cancellation of BANKERS bond. A-L’s claim was for two 14 accounts: the Flores/Hernandez account and the Cortez-Perez account. the Flores/Hernandez 15 account was created on December 1, 2014 and the Cortez-Perez account was created on 16 February 18, 2015. [Declaration of John J. Immordino, { 9] 17 LOBEL’s claim arose as a result of5 vehicle installment contracts,all of which occurred 18 in 2015.[Declaration of John J. Immordino, § 10] 19 Accordingly, the claims of A-L and LOBEL are time barred and are not compensable 20 under the subject bond. 21 IV. BANKERS IS ENTITLED TO RECOVER ATTORNEYS’ FEES AND COSTS 22 THAT IT HAS INCURRED IN THIS INTERPLEADER ACTION. 23 Code of Civil Procedure Section 386.6(a) states the following: 24 A party to an action who follows the procedure set forth in 25 Section 386 or 386.5 may insert in his motion, petition, 26 complaint, or cross complaint a request for allowance of his costs 27 and reasonable attorney fees incurred in such action. In ordering 28 the discharge of such party, the court may, in its discretion, award 8 BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 such party his costs and reasonable attorney fees from the amount in dispute which has been deposited with the court. At the time of final judgment in the action the court may make such further provision of assumption of such costs and attorney fees by one or more of the adverse claimants as may appear proper. A trial court may allow such fees to an interpleading surety as relates solely to the pursuit of its stakeholder remedy provided by Code of Civ. Proc. §§ 386 et seq. Sweeney v. McClaran (1976) 58 CA3d 824, 830. BANKERS has incurred the sum of $21,925.50 in attorneys’ fees and $1,436.96 in costs, totaling $23,362.46, in connection with this interpleader 10 action. [Declaration of John J. Immordino, § 11] 11 Vv. CONCLUSION 12 Based upon the foregoing, BANKERS respectfully requests that the Court discharge the 13 Bond from any further liability as to the Defendants, that the Court issue an order that the only 14 valid claim is that of BRASHER’S and that BRASHER’S be paid the sum of $7,339.87 from 15 the interpled funds, that the sum of $42,660.13 be returned to BANKERS, in care of its counsel 16 of record, that BANKERS be awarded the sum of $23,362.46 for its attorneys fees and costs, 17 and that an order be issued declaring that the balance of the penal sum of the Dealer’s Bond is 18 $19,297.67. 19 20 DATED: April 2/ , 2017 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP An) 21 22 By:_——= 23 + CHN SUSARNAH M. DU DLEY 24 Attorneys for Plaintiff, BANKERS INSURANCE COMPANY 25 26 27 28 9 — _- BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER 2732393v.1 DECLARATION OF JOHN J. IMMORDINO 1 I am an attorney at law licensed to practice before all of the courts of the state of California, and am Of Counsel in the firm of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, counsel of record for Plaintiff, BANKERS INSURANCE COMPANY (“BANKERS”). 2. I know all of what follows of my own personal knowledge and could and would competently testify thereto if called upon to do so as a witness. 3 Attached hereto as Exhibit “A” is a true and accurate copy of the Dealers Surety Bond issued by BANKERS on behalf of King of Kars, as dba of Elizabeth Marie Chavez and filed with the State of California, Department of Motor Vehicles, numbered 3217896 and in the 10 amount of Fifty Thousand Dollars ($50,000.00) (hereinafter the “Bond”). 11 4 BANKERS received claims from a number of parties on the Bond, totaling the 12 sum of $228,202.81. In order to limit the liability of BANKERS to the penal sum of the Bond, 13 I caused to be filed the interpleader complaint on August 26, 2015, naming all of the claimants 14 on the Bond. On September 1, 2015 I caused to be filed the first amended complaint in 15 interpleader. 16 5 BANKERS disputed the validity ofa number of the claims, alleging that: 17 a. Any claim that arose after the effective cancellation of the Dealer Bond is 18 not valid and such claimant is not entitled to any portion of such claim from 19 the Dealer Bond [413 of the First Amended Complaint]; and 20 “any claims that arose after November 28, 2014, are not compensable under 21 the Dealer Bond. Accordingly, if the valid claims involved herein do not 22 exceed the penal sum of the Dealer Bond, that sum should be returned to 23 Bankers to remain available to other valid and timely claimants [§ 26 of the 24 First Amended Complaint] 25 6. On or about September 22, 2015, I caused to be deposited with this Court, the 26 sum of $50,000.00 (the penal sum of the Bond) and on that same date filed a Notice of Deposit 27 of Bond Funds with the Court. 28 10 BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 7 After a number of defendants failed to answer the complaint, I caused their defaults to be entered by the clerk of this Court. Only three (3) defendants remain in this case, BRASHER’S SACRAMENTO AUTO AUCTION (“BRASHER’S), A-L FINANCIAL CORP. (“A-L”) and LOBEL FINANCIAL CORPORATION “(LOBEL”). 8 LOBEL’s claim was originally in the amount of $145,302.69, but was letter amended and reduced to $12,113.95. A-L’s claim was originally in the amount of $20,016.39, but was letter amended and reduced to $18,400.00. BRASHER’S claim is in the amount of $7,339.87. 9 Attached hereto as Exhibit “B” is a true and accurate copy of the special 10 interrogatories | caused to be served upon A-L, and attached hereto as Exhibit “C” is a true and 11 accurate copy of the responses to those special interrogatories by A-L. In response to special 12 interrogatory number 4, which requested the dates upon which each account obligation was 13 created for which A-L was making claim, A-L responded: For the Flores-Hernandez Account, 14 A-L Financial Corporation paid King of Kars the sum of $9,936.29 on or about 12/01/14... . 15 -For the Cortez-Perez account, A-L Financial Corporation paid King of Kars the sum of 16 $9,279.38 on or about 2/18/15. 17 10. Attached hereto as Exhibit “D” is a true and accurate copy of the special 18 interrogatories I caused to be served upon LOBEL and attached hereto as Exhibit “E” is a true 19 and accurate copy of the responses to those special interrogatories by LOBEL. In response to 20 special interrogatory number 4, which requested the dates upon which each account obligation 21 was created for which LOBEL was making claim, LOBEL responded by identifying five (5) 22 vehicle sales contracts and the dates those obligations arose as follows: Sharon Myers, 2005 23 Nissan, Retail Installment Sales Contract and 02-05-15 Dealer Disbursement; Jennifer Montez, 24 2005 Volkswagen, 3-01-15 Retail Installment Sales Contract, 3-06-15 Limited Repurchase 25 Assignment, 3-06.-15 Dealer Disbursement; Pedro & Sal Serrano, 2007 Saturn, 2-13-15 Retail 26 Installment Sales Contract, 3-06-15 Dealer Disbursement, Jose Bermudez, 1-04-15 Retail 27 Installment Sales Contract, 3-06-15 Limited Repurchase Assignment, 1-06-15 Dealer 28 i BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER 27444 18v.1 Disbursement, and Crystal M. Suarez, 2002 Chevrolet, 1-30-15 Retail Installment Sales Contract, 3-18-15 Dealer Disbursement. 11. I am responsible for the billing by my firm to the client for attorneys fees and costs. Based upon a review of my firm’s records regarding the invoices transmitted to BANKERS and records regarding the pending and unbilled attorneys fees and costs, BANKERS has incurred the sum of $21,925.50 for attorney’s fees and the sum of $1,436.96 for filing fees and process server fees in this matter. The total fees and costs incurred are in the sum of $23,362.46. I declare under penalty of perjury that the foregoing is true and correct. And that this 10 declaration was executed on the af » ay of April, at Los Angeles, California. 11 Lor <= 12 Zz < 7 JORG. IMMO RDI an 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 BANKERS INSURANCE COMPANY’S MOTION FOR DISCHARGE AND ORDER 2732393v.1 DECLARATION OF GABBY ACOSTA I, Gabby Acosta, declare as follows: 1 I am employed by J..R. Olsen Bonds & Insurance Brokers, Inc. in Canoga Park, CA., as a Senior Underwriter. 2 In 2013 and 2014, I was an underwriter and attorney in fact for Bankers Insurance Company in connection with the issuance of various commercial surety bonds, including motor vehicle license bonds. 3 With the appropriate power of attorney, | issued, on or about November 20, a 2013, a California DMV $50,000.00 Dealer Bond, numbered 3217896 on behalf of Elizabeth 10 Marie Chavez dba King of Kars. 1 4 On October 29, 2014, I prepared a Notice of Cancellation, a true and accurate 122 copy of which is attached hereto as Exhibit “F”, and sent the notice by certified return receipt 13 mail to the California Department of Motor Vehicles, Occupational Licensing Operations in 14 Sacramento, CA. Attached hereto collectively as Exhibit “G” are the certified mailing receipt 15 and acknowledgment of receipt regarding said notice. On that same date, I also mailed a copy 16 of the notice of cancellation to Elizabeth Marie Chavez dba King of Kars, the principal on the 7 bond, to the address reflected in the Notice of Cancellation. 18 T declare under penalty of perjury that the foregoing is true and correct. And that this 19 declaration was executed on the 21% day of April, 2017 at Canoga Park, California. 20 \ 21 \ yO ‘| "GABBY ACOSTA 22 23 24 25 26 22 9 2 12 BANKERS INSURANCE COMPANY'S MOTION FOR DISCHARGE AND ORDER 2732393v.1 EXHIBIT "A" — a ——. STATE OF CALIFOBNIA DMV USE. ONLY, a DEPARTMENT OF MOTOR VEHICLES: [OL OR AGGOUNT NUMBER ee DEALER SURETY BOND pare fs3 (Vehicle Code Section 11710) Le - a —_——— Licensing Operations ision Bond Nuwber 3217896 — Occupational Licensing Branch ‘SURETY USE ORLY P.O. Box 932342, MS: L224 $5,500.C Sacramento, CA 94232-3420 Pre ium Amount SURETY USE ONLY KNOW ALL PERSONS RY THESE PRESENTS: King Of Kars Elizabeth Marie Chavez ‘That we, - PRINCIPAL NAMES) AND BOA a — doing business as a deaier whose address for service is, 628 Fulton St Fresno CA "93721 DEALER SERVICE ADOWESS as PRINCIPAL, and Bankers Insurance SORE NAME Company a corporation organized under the laws o Florida _ ond authorized to vansact a “STATE GF INCORPORATION 11101 Roosevelt general surety business in the State of California, whose address for service is aa Bivd N. St Petersburg _ FL _33716 IE ADDRESS as SURETY, are beld and firmly bound ta the People of the State of California in the penal sum of FIPTY THOUSAND DOLLARS ($50,000), for which payment we bind ousselves, our heirs, executors, administrators, successors and assigns jointly and severatly, firmaly by these presents. The bond term shal! begin oa 11/20/2033 _ BOND EFFRCTIVE UATE WHEREAS, section 11710, Vebicie Code, requires that the Principal file or have on file with the Department a bond in the sua of $50,000 and this bond is executed and tendcred in accordance therewith. NOW THEREFORE, the conditions of the foregoing obligation are that if the Pri ipl shall not practice any fraud or make any Saudulent representation which will saure a monetary loss to a purchaser, seller, financing agency, or governmental agency; an, shi not fail to comply with conditions set out in section 14711, then this obligation is to be void; otherwise it is to remain in full force and effect, PROVIDED HOWEVER, this bord is issued subject to the following express conditions: (1) This bond shal? be deemed continuvus in form and shal] remain in full force and effect and shal] run concurrently with the license period for which the license is granted and each and every succeeding license period or periods for which said Principal may be licensed, after which liability hereunder shall cease except as to any liability or indebtedness therefore incused or accrued hereunder. (2) This bond is executed by the Surety t0 comply with Article 1 (commencing with section 11700), Chapter 4, Division 5, Vehicle Code and chapter 2, title 14, part 2, Corie of Civil Procedure and said bond shall be subject fo all the terms and provisions thereof. (3) Tee aggregate Lability of the Surety hereunder on all claims whatsoever shall not exceed the penal sum of this bond in any event. (4) This bond nay be canvetled by the Surety in accordance with Article 13 (commencing with section 996.319), chapter 2, tile 14, part 2, Code of Civil Procedure. (5). The Surety, its successors and assigns, are jointly and severally liable on the obligations of the bond, chapter 2 (commencing with section 995.010), title 14, pert 2, Code of Civil Procedure und Article 1 (conmencing with section 11700), Chapter 4, Division 5, Vehicle Code. (©) The Principal and Surety may be served with notices, papers und other documents under chapter 2 (commencing with section 995.010), title 14, part 2, Code of Civil Procedure at the addresses given above. J certify (or declare) wider penalty of perjury, under the laws of the State of California that the foregoing ix true and correct. The undersigned executes this bond on behalf of the surety under an unrevoked power of attorney. Executed at Canoga Park, CAL x —___- ee BGK ORE JKNEY-IN®) ‘Cn (Datey 11/20/2013 G bby Atos @ \ Phi »D ORTYI OF ATFORNEV.IN FACT OL25 MEY. 1172010; WWW UME OC Page 1 Power of Attorney 321789 Bankers Insurance Company KNOW ALL MEN BY THESE PRESENTS, that BANKERS INSURANCE COMPANY, a corporation duly organized under the laws of the State of Florida, and having its principal office in the City of St. Petersburg, Pinellas County, Florida, does hereby nominate, constitute and appoint: *James R. Olsen, Hope E. Olsen, Rosa M. Friedik, Gabby Acosta and/or Abel Acosta of the City of Canoga Park ’ Los Angeles County, State of California , its true and lawful Attorney: fact, with fullpower and authority hereby conferred upon him/her to make, execute, seal and deliver for and on its behalf, as Surety, as its act and deed, any and all bonds, undertakings consent or Agreement not exceeding the sum of Five Hundred Thousand and xx/100 Dollars--- $500,000.00 which this Company may be authorized to write This Power of Attorney is granted and is signed and sealed under and by the authority of the following resolutions adopted by the Board of Directors of Bankers Insurance Company, and now in force to-wit BE IT RESOLVED, that the Chairman of the Board, President and any Vice President of the Corporation are hereby authorized to execute Powers of Attomey, qualifying the Attorney(s)-in-Fact named in the Powers of Attomey to execute, ‘on behatf of the Corporation, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of the Cosporation are hereby authorized to attest the execution of any such Power of Attomey. BE IT FURTHER RESOLVED, that the signatures of such officers may be affixed to any such Power of Attomey or to any certificate relating thereto by facsimile, any and such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when so affixed in the future with respect to any bond, undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, Bankers Insurance Company has caused these presents to be executed by their duly 4 day of July, 2010. authorized officers as of this ATTEST: ef hn COMPANY COMame Assistant Secretary David K. Meehan, President STATE OF FLORIDA ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me day of July, 2010 by David K Meehan and Nancy C. Haire, as President and Assistant Secretary, respectively, of Bankers Insurance Company, a Florida corporation, on behalf of the corporation, ry, (NOTARY PUBLIC) 1, the undersigned, Assistant Secretary of Bankers Insurance Company do hereby certify that the original Power of Attorney, of which the foregoing is a full, true and correct copy, is in full force and effect. IN WITNESS WHEREOF, | have hereunto subscribed my name as Assistant Secretary, and atfix the corporate seal of the Corporation this Oth day of November : 20 (SEAL) Nancy C. Ha CMa Sao Page 2 CALIFORNIA ALL-PURPOSE ACKNG EDG MENT CS State of California County of _Los Angeles Esteban Flores-Notary Public On 11-20-2013 before me, Bae Tiere sed Name and Tile of he Oxicer personally appeared Gahby Acosta Warselsy or Sree) — who proved fo.me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me. that 1 he/she/they executed the same in his/her/their authorized capaclty(ies}, and that by his/her/thelr signature(s) on the ~ Yelas Bn aA fa 3 3 ESTED, SAN FLORES Commission # 1987526 ‘6 5 instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument: Notary Public - California z fay 25 Los Angeles County = i certity under PENALTY OF PERJURY under the laws is My Samer Ses foe. 2018 of the State of California that the foregoing paragraph is ‘tue. and:correct. ' : WITNESS my han \d and ei PN official seal. Signature. CLT ‘ot Notary Pobic Place Notary Seal Atiove orm ONAL Though the information below is not required by law, it may prove valuable lo persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Bond #: 3217896 Title of Type of Docume Document Date: 11-20-2013 —_— Number of Pages:_ a Signer(s) Other Than Named Above: —_—_~ Capacity(ies) Claimed by Signer(s) Signe’s Name:____ . Signer’s Name:__. oO Individual OIndividual o Corporate Officer — Title(s): D Corporate Officer — Title(s): ee Partner — G Limited 0 General © Partner —C Limited 0 General Cae rerannearo Es Attorney in Fact pissy Top of thumb here CO Attorney in Fact Top of thumb here Trustee OTrusteo Guardian or Conservator © Guardian or Conservator Other: O Other: Signer is Reoresertin ——— Signer Is Representin ee —— OEE CAS SARIS REN NSIS US {62007 Nocona Nowy Assoiaton $250 Do sob fave, RO Bax 2402 Chota, naroee122 i wor Nace INoteryo7y_ lem 539%B07 Reorder Cali Fine VOD 755827 Page 3 EXHIBIT "B" JOHN J. IMMORDINO (State Bar No. 93874) SUSANNAH M. DUDLEY (State Bar No. 182939) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071 Telephone: (213) 443-5100 Facsimile: (213) 443-5101 Attorneys for Plaintiff, BANKERS INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 BANKERS INSURANCE COMPANY, a ) Case No.: 15 CE CG 02705 11 Florida corporation, ) Hon. Jeff Hamilton 12 Plaintiff, ) Dept. 104 Vv, 13 GATEWAY AUTO SALES/LEASING INC., ) SPECIAL INTERROGATORIES TO 14 a California corporation doing business as ) DEFENDANT A-L FINANCIAL CORP. FRESNO AUTO DEALERS EXCHANGE; ) 15 BRASHER’S SACRAMENTO AUTO ) AUCTION, a California corporation; UNITED) 16 AUTO CREDIT CORPORATION, a California corporation; A~-L FINANCIAL 17 CORP., a California corporation; HESHAM ELZAAYM, an individual doing business as 18 FIVE STAR AUTO SALES; HAROUN BESHOY SAMIR, an individual doing 19 business as FIVE STAR AUTO SALES; LOBEL FINANCIAL CORPORATION, a 20 California corporation, BRIAN RICHELIEU, ) an individual and JENNIFER RICHELIEU, an) 21 individual both doing business as CALIFORNIA AUTO REMARKETING,; and ) 22 DOES 1 TO 50, inclusive,